                                                               2019 WI 56

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2017AP170
COMPLETE TITLE:         J. Steven Tikalsky,
                                  Plaintiff-Appellant,
                             v.
                        Susan Friedman a/k/a Susan Tikalsky, James
                        Tikalsky and Amended and Restated Donald and
                        Betty Lou Tikalsky Revocable Trust,
                                  Defendants,
                        Terry Stevens,
                                  Defendant-Respondent-Petitioner.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                            Reported at 382 Wis. 2d 830,917 N.W.2d 232
                                       (2018 – unpublished)

OPINION FILED:          May 23, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 7, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Waukesha
   JUDGE:               Maria S. Lazar

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


ATTORNEYS:


       For the defendant-respondent-petitioner, there were briefs
filed by Dean P. Laing, and O’Neil, Cannon, Hollman, DeJong &
Laing S.C., Milwaukee. There was an oral argument by Dean P.
Laing.


       For the plaintiff-appellant, there was a brief filed by
Mark J. Mingo and Mingo Yankala, S.C., Milwaukee; with whom on
the brief was Thomas C. Armstrong and Cabaniss Law, Milwaukee.
There        was       an    oral      argument   by   Mark   J.   Mingo.
                                                                         2019 WI 56
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.    2017AP170
(L.C. No.   2015CV1733)

STATE OF WISCONSIN                             :            IN SUPREME COURT

J. Steven Tikalsky,

            Plaintiff-Appellant,

      v.

Susan Friedman a/k/a Susan Tikalsky, James
                                                                      FILED
Tikalsky and
                                                                 MAY 23, 2019
Amended and Restated Donald and Betty Lou
Tikalsky Revocable Trust,                                           Sheila T. Reiff
                                                                 Clerk of Supreme Court

            Defendants,

Terry Stevens,

            Defendant-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                 Reversed.


      ¶1    DANIEL    KELLY,    J.    In   a   vigorous      dispute      over     the
distribution     of   Donald    and   Betty    Lou    Tikalsky's       estate,       J.
Steven Tikalsky sued his sister, Terry Stevens, to obtain part
of    the   inheritance   she    received      from    their     parents.          His
Complaint contains a count labeled "constructive trust," which
he deployed against his sister as a cause of action.                            Terry
Stevens asks us whether a "constructive trust" may play that
                                                                          No.     2017AP170



role, and whether it may be used against those who have engaged
in no inequitable behavior.                  We hold that a constructive trust
is a remedy, not a cause of action.                     We also hold that, under
the proper circumstances, a constructive trust may be imposed on
property in the possession of one who is wholly innocent of any
inequitable conduct.            But because the Complaint in this case
does not state a cause of action against Terry Stevens, nor
assert any other grounds upon which a constructive trust could
be imposed, the circuit court properly dismissed her from the
case with prejudice.            We reverse the court of appeals' decision
reversing the circuit court.1
                                       I.    BACKGROUND

     ¶2     Donald        and     Betty        Lou     Tikalsky        (jointly,       the
"Tikalskys",       and     individually,             "Mr.     Tikalsky"     and      "Mrs.
Tikalsky," respectively) jointly developed an estate plan that
included    the    "Donald        J.        Tikalsky    and    Betty      Lou   Tikalsky
Revocable Trust dated January 15, 1999" (the "1999 Trust"), as
well as two associated wills (the "Wills").                      The 1999 Trust and

Wills provided that, when the Tikalskys had both passed, the
bulk of their estate would be divided equally between their four
children:         J.     Steven    Tikalsky          ("Steven");       Susan    Friedman




     1 This is a review of an unpublished opinion of the
Wisconsin Court of Appeals, Tikalsky v. Stevens, No. 2017AP170,
unpublished slip op. (Wis. Ct. App. May 30, 2018), reversing the
Waukesha County Circuit Court, the Honorable Maria S. Lazar,
presiding.


                                               2
                                                                                   No.     2017AP170



("Susan");            Terry     Stevens       ("Terry");             and     James         Tikalsky
("James").2
      ¶3        A few years after execution                       of the 1999            Trust and
Wills, the relationship between Steven and his parents started
deteriorating.           Eventually, they became estranged.                        A succession
of amendments to the estate planning documents followed.                                           In
2007, the Tikalskys executed the "Donald J. Tikalsky and Betty
Lou     Tikalsky         Revocable         Trust"          (the    "2007         Trust")     as     a
replacement for the 1999 Trust.3                      Unbeknownst to Steven, the 2007
Trust provided that "J. Steven Tikalsky and his children are
intentionally left out of this bequest or any bequest under this
document."            The Tikalskys amended the 2007 Trust in 2008; the

amendment        provided       that      "[i]t       is    the    intent         of     Donald    J.
Tikalsky        and    Betty     Lou      Tikalsky      that      J.   Steven          Tikalsky    be
eliminated completely from this Trust or any Wills or the estate
of the parties."4              The Tikalskys amended and restated the 2007
Trust     the    final        time   in    April      of     2009.         Mr.    Tikalsky        died
approximately          five     months      later,      at    which        time    Steven     first

      2Although referring to Mr. and Mrs. Tikalsky's children by
their first names would ordinarily suggest an unwarranted
familiarity, we do so here purely for the sake of clarity.
      3While we generally cite from revisions to the Tikalskys'
various trust documents, the Tikalskys also had executed
individual wills.     Our references to the Tikalskys' estate
planning documents encompass their respective wills and trust
documents unless context necessitates otherwise.
      4Prior to the 2008 revision, the 2007 Trust provided that
Steven would receive certain effects from Mr. Tikalsky's law
office under certain circumstances.


                                                  3
                                                                      No.    2017AP170



learned that his parents had disinherited him and his family.
Mrs. Tikalksy died in 2014, five years after her husband.
     ¶4       Steven believes two of his siblings, Susan and James,
wrongfully      caused    his      estrangement     from   his    parents    and   his
subsequent disinheritance.                 His Complaint seeking redress for
the latter injury named not just Susan and James as defendants,
but Terry as well.5           Steven asserted nine claims:            (1) a request
for a declaration that his parents lacked capacity to execute
their respective testamentary documents; (2) a request for a
declaration that Susan and James exercised undue influence over
his parents in the drafting and execution of their testamentary
documents;          (3)   intentional            interference       with     expected

inheritance;        (4)   common     law     conversion/fraud;       (5)    statutory
theft    in    violation      of    Wis.    Stat.    §§ 895.446     (2015-16)6     and
943.20;       (6)    unjust     enrichment;       (7)   civil     conspiracy;      (8)
punitive      damages;    and      (9)   constructive      trust.     The    cardinal
numbers in this list correspond to the numbered causes of action
in Steven's Complaint.             As we trace the disposition of each of


     5 The Complaint also identifies the "Amended and Restated
Donald J. Tikalsky and Betty Lou Tikalsky Revocable Trust by
Susan Friedman a/k/a Tikalsky, Trustee" as a defendant in this
action.    Steven filed an Amended Complaint, but it merely
incorporates the original Complaint by reference. Consequently,
the Amended Complaint comprises only new allegations and such
paragraphs from the original that it amends, none of which are
relevant to the matters we discuss here.      Therefore, we will
refer only to the original Complaint in this opinion.
     6 All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                             4
                                                                  No.   2017AP170



these counts, we will maintain the cardinal number associated
with each one to assist with clarity.
     ¶5     After his siblings moved for summary judgment, Steven
voluntarily dismissed five of the Complaint's nine counts and
acknowledged that "punitive damages" is not a cause of action.7
Consequently,       when   the   circuit     court   considered   the      summary
judgment     motion,       the   remaining     claims    were:       (2)    undue
influence;      (3)        intentional       interference     with      expected
inheritance; and (9) constructive trust.                Neither count two nor
three     alleged     anything    against      Terry.       The   ninth     count
(constructive trust) referred to Terry only obliquely (inasmuch
as she was one of the defendants):

          143.   The funds that constituted a one-quarter
     share in Donald and Betty Lou's joint estate plan and
     were converted from Steven to the defendants were at
     all times after the conversion held by the defendants
     in constructive trust for Steven.

          144.   Steven therefore now holds a beneficial
     property interest in all funds converted by the
     defendants.  To the extent that the defendants spent
     or otherwise disposed of funds since the conversion
     beginning in or around April 8, 2009, a legal
     presumption exists that the funds spent came from
     monies other than those funds converted, and that any
     assets now in the defendants' possession are the
     subject of Steven's constructive trust to the maximum
     extent.   In addition, the converted funds remain in



     7 Specifically, Steven voluntarily dismissed the following
causes of action: (1) declaratory judgment regarding the
Tikalskys' lack of testamentary capacity; (4) common law
conversion/fraud; (5) statutory theft; (6) unjust enrichment;
and (7) civil conspiracy.


                                         5
                                                                    No.    2017AP170


       constructive trust in the hands of all persons who
       knew or had reason to know the funds were converted.
       ¶6     The    circuit   court   granted       summary    judgment   against
Steven on counts two (undue influence) and nine (constructive
trust).       With respect to dismissal of the claim for constructive
trust, the circuit court said:

       Plaintiff   Steven  urges    the   Court  to  keep  the
       constructive trust cause of action because the
       defendants   were   unjustly    enriched  and   he  is,
       therefore, entitled to the equitable remedy of a
       constructive trust.      But as just noted by the
       Defendants, Plaintiff Steven voluntarily dismissed his
       unjust enrichment cause of action.       So accordingly
       this cause of action for constructive trust is
       unsupported.   Summary judgment dismissing this cause
       of action is granted.
       ¶7     The circuit court denied the summary judgment motion
with       respect   to    count   three       (intentional    interference    with
expected inheritance), which left this as the sole remaining
claim in the case.           Because this count asserted nothing against
Terry, the circuit court dismissed her from the lawsuit with

prejudice.       The order of dismissal was final as to Terry, and
Steven appealed in due course.8

       ¶8     Steven named Terry as the only respondent; neither of
his other siblings participated in the appeal in any capacity.

The sole issue he presented to the court of appeals was the
circuit court's dismissal of count nine (constructive trust) as
against Terry.            The "Statement Of The Issue" in his opening

       8
       Count three (intentional interference with expected
inheritance) remains pending in the circuit court against Susan
and James.


                                           6
                                                                                  No.    2017AP170



brief asked:              "Did the trial court err in dismissing Steven
Tikalsky's            cause   of     action      seeking       to   impose    a   constructive
trust on inheritance alleged to be wrongfully distributed to the
defendant         Terry       Stevens,      on    the    basis      that     Steven      Tikalsky
previously dismissed his cause of action for unjust enrichment?"
The circuit court did err, the court of appeals said.                                    Although
the cause of action for unjust enrichment was gone, the court of
appeals concluded that Steven had nevertheless "presented enough
material on summary judgment to continue seeking a constructive
trust."       Tikalsky v. Stevens, No. 2017AP170, unpublished slip

op., ¶2 (Wis. Ct. App. May 30, 2018).                          According to the court of
appeals,          a    constructive         trust       remained        as   a    "permissible

equitable         remedy"       as    to    Terry      because      Steven       alleged   "some
measure of untoward conduct on the part of Susan and James," and
therefore "the factual claims undergirding the potential remedy
of a constructive trust have been sufficiently established at
this stage of the proceedings."                           Id.       The court of appeals
reversed the circuit court's order dismissing Terry from the
case.       Id.
       ¶9     We granted Terry's petition for review and now reverse
the court of appeals.
                                   II.     STANDARD OF REVIEW
       ¶10    We       review      the     disposition         of   a   motion     for   summary
judgment      de       novo,    applying         the    same    methodology        the   circuit
courts apply.             Green Spring Farms v. Kersten, 136 Wis. 2d 304,
315,    401       N.W.2d 816         (1987);      Borek    Cranberry         Marsh,      Inc.   v.
Jackson Cty., 2010 WI 95, ¶11, 328 Wis. 2d 613, 785 N.W.2d 615
                                                   7
                                                                               No.    2017AP170



("We   review       the   grant     of     a    motion       for     summary   judgment       de
novo . . . .").             While    our       review     is       independent       from    the
circuit      court    and    court       of     appeals,       we    benefit     from       their
analyses.         See Preisler v. General Cas. Ins. Co., 2014 WI 135,

¶16, 360 Wis. 2d 129, 857 N.W.2d 136.
       ¶11    "The first step of that [summary judgment] methodology
requires the court to examine the pleadings to determine whether
a claim for relief has been stated."                          Green Spring Farms, 136
Wis. 2d at 315.           "In testing the sufficiency of a complaint, we
take all facts pleaded by plaintiff[] and all inferences which
can reasonably be derived from those facts as true."                                    Id. at
317.    And we liberally construe pleadings "with a view toward

substantial justice to the parties."                           Id. (citing Wis. Stat.
§ 802.02(6)).
       ¶12    Under the second step of this methodology, "[i]f a
claim for relief has been stated, the inquiry then shifts to
whether      any    factual    issues          exist."         Id.    at    315.       Summary
judgment     is    appropriate       only       "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); see
also Columbia Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶11,
261 Wis. 2d 70, 661 N.W.2d 776 (quoting and applying Wis. Stat.
§ 802.08(2) (2001-02)).




                                                8
                                                                            No.    2017AP170



                                   III.    ANALYSIS
     ¶13      Terry says the circuit court correctly dismissed her
from the case because the Complaint's only claim against her was
for a constructive trust.                 This is a remedy, not a cause of
action, she says, and the former may not be imposed in the
absence of the latter.            Steven says a constructive trust's legal
taxonomy is of no moment; all that matters is whether the facts
presented at summary judgment justify its imposition.                             The court
of appeals agreed:          "Though the parties spend considerable time
debating whether constructive trust should be labeled a cause of
action   or    a   remedy,       the   answer    to    that   question        is    largely
immaterial."       Tikalsky, 2017AP170, unpublished slip op., ¶7.

     ¶14      At   the    most    basic    level,      Steven   and        the    court   of
appeals are right.           A complaint's success does not depend on
accurate labeling.          When we "examine the pleadings to determine
whether a claim for relief has been stated," Green Spring Farms,
136 Wis. 2d at 315, we focus on the factual allegations, not the
plaintiff's        characterization         of    their       legal        significance.9
Shelstad v. Cook, 77 Wis. 2d 547, 553, 253 N.W.2d 517 (1977)
("The theory of the plaintiff's case is not controlling.                                   A
plaintiff is bound by the facts alleged, not by his theory of
recovery.").        Not even misidentifying the cause of action will
distract      us   from    our    independent         assessment      of    the     factual


     9 Our cases at various times have referred to "causes of
action," "claims for relief," "theories of recovery," and
"theories of liability." The terms are interchangeable.


                                            9
                                                                        No.     2017AP170



allegations' legal consequences:                  "Neither any misstatement as
to the precise nature of the wrong, as classible by common law
names,    or    misstatement       as     to    the    kind    of   relief,     or     mere
indefiniteness of statement are of any particular moment, as
regards either sufficiency of cause or proper joinder of causes
of   action."       Weinstein       v.     McCabe,       43    Wis. 2d 76,      80,    168

N.W.2d 210 (1969).           See also Bieri v. Fonger, 139 Wis. 150, 153,
120 N.W. 862 (1909) ("If facts are stated constituting a good
cause of action, though not the one the pleader intended, the
pleading is good as against a general demurrer.").10
     ¶15       While Steven is right about our responsibility to look
past labels, that does not mean we may treat causes of action

and remedies as if they were the same thing.                        It just means we
do not depend on the complaint to properly label the claims or
to   marshal      the   supporting         facts       into    a    logically      cogent
grouping.        Even   as    we   look    past       such    formalities,    we      still
distinguish between causes of action and remedies:                       "A cause of
action is distinguished from a remedy which is the means or
method whereby the cause of action is effectuated."                           Goetz v.




     10This is not to say that labels cannot be helpful.
Artfully drafted complaints are often organized and divided into
conceptually distinct sections (e.g., "Parties," "Background
Facts," "Causes of Action," etc.).    Labeling the sections, as
well as each individual cause of action, provides the court with
convenient navigational markers.


                                           10
                                                                    No.   2017AP170



State     Farm   Mut.   Auto   Ins.    Co.,     31   Wis. 2d 267,   273-74,    142

N.W.2d 804 (1966) (citation omitted).11
     ¶16     The   distinction        is    important,    especially      at   the
summary judgment stage, because the court must determine whether
the alleged facts comprise one or more causes of action.                       The
substantive law governing a cause of action tells us what types
of facts a plaintiff must allege.                If the facts satisfy all of
the constitutive elements of the claim, then the complaint has
stated a good cause of action and the analysis may proceed to
the second step in the summary judgment methodology:

     To state a claim upon which relief may be granted, the
     plaintiff's allegations must be informed by the theory
     of liability: "In sum, Twombly[12] makes clear the
     sufficiency   of   a   complaint   depends  on   [the]
     substantive law that underlies the claim made because
     it is the substantive law that drives what facts must
     be pled. Plaintiffs must allege facts that plausibly
     suggest they are entitled to relief."




     11See also Bernstein v. Bankert, 733 F.3d 190, 226 (7th
Cir. 2013) (explaining that "[f]ederal law defines a 'cause of
action' as 'a core of operative facts which give rise to a
remedy[.]'" (brackets in original)); Eklund v. Evans, 300
N.W. 617, 618-19 (Minn. 1941) ("A cause of action is to be
distinguished from the remedial rights arising therefrom and the
remedies by which such rights are enforced. The cause of action
is the legal wrong done to plaintiff by defendant. . . . The
cause of action gives rise to a remedial right in favor of
plaintiff against the defendant.      This may be a right to
specific performance, damages, injunction, or other relief. The
remedy is the legal process by which the remedial right is
consummated or satisfied.").
     12   Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).


                                           11
                                                              No.     2017AP170



Springer    v.    Nohl   Elec.   Prod.    Corp.,   2018   WI 48,    ¶35,   381

Wis. 2d 438, 912 N.W.2d 1 (quoting Data Key Partners v. Permira
Advisers LLC, 2014 WI 86, ¶31, 356 Wis. 2d 665, 849 N.W.2d 693).
See also Val-Lo-Will Farms, Inc. v. Irv Azoff & Assocs., Inc.,
71 Wis. 2d 642, 644, 238 N.W.2d 738 (1976) ("A cause of action
is defined as an aggregate of operative facts giving rise to a
right or rights termed 'right' or 'rights of action' which will
be enforced by the courts." (citation and some internal marks
omitted)).       The cause of action is important, therefore, because
it is the standard against which we measure the sufficiency of
the complaint's factual allegations.
      ¶17   As we assay Steven's Complaint for a cause of action,

we will proceed in two steps.            First, we will determine whether
"constructive trust" is a cause of action or, instead, a remedy.
Second, we will review Steven's Complaint to determine whether
the   alleged facts, without       regard to       the labels,     comprise   a
cause of action against Terry.              The first step is necessary
because if "constructive trust" is a cause of action, we need to
identify its substantive elements so that, in the second step,
we may determine whether the alleged facts satisfy its terms.
If "constructive trust" is not a cause of action, however, then
we must determine whether the Complaint nonetheless alleges a
set of facts that comprises some other cause of action that
might warrant imposition of a constructive trust on property in

Terry's possession.




                                     12
                                                                                No.     2017AP170



                     A.    "Constructive Trust" Is A Remedy
     ¶18    Our      first step begins with                   a brief       word      about   the
nature     of     constructive          trusts.         This        will     not     only     help
illuminate        its     essential       function       (remedy           versus     cause     of
action), it will also lay the groundwork for understanding the
circumstances        in    which     it      is    available         as    against      innocent
owners.         Conceptually,       a     constructive            trust    is   an     equitable
device     used      to   address       situations           in    which     the      legal   and
beneficial interests in a particular piece of property lie with
different people.            Under proper circumstances——more about that
later——the       beneficial        owner       may     ask    the     court     to     impose    a
constructive trust           on the          property.            Hanson v.     Valdivia,       51

Wis. 2d 466, 476, 187 N.W.2d 151 (1971) ("A constructive trust
can only be applied to some specific res [that is, property] to
which the party has acquired legal title.").                               The purpose of a
constructive trust is to protect the beneficial owner against
the legal owner:           "Such a trust is implied by operation of law
as a remedial device for the protection of a beneficial interest
against one who . . . holds the legal title to property which he
ought not in equity and in good conscience beneficially enjoy."
Bautista     v.      Schneider,      16       Wis. 2d 304,          312,     114      N.W.2d 449
(1962).         In      operation,       a    constructive           trust      reunites      the
beneficial and legal ownership interests in the same person.
"By means of this device, the person equitably entitled to the




                                                  13
                                                                      No.    2017AP170



res becomes the cestui que trust[13] and may obtain possession
from the wrongful holder, the constructive trustee."                        Richards

v. Richards, 58 Wis. 2d 290, 297, 206 N.W.2d 134 (1973).                           See
also Zartner v. Holzhauer, 204 Wis. 18, 21, 234 N.W. 508 (1931),
overruled on other grounds by Glojek v. Glojek, 254 Wis. 109, 35
N.W.2d 203      (1948)   ("It   is   well     established    that     equity       will
afford relief at the suit of heirs to place them in possession
of, or to quiet their title in, real property, the legal title
to which is held by another, under circumstances giving rise to
a constructive trust."); Restatement (Third) of Restitution and
Unjust Enrichment § 55 cmt. b (2011) ("Constructive trust is a
flexible device by which a court directs that property to which

B holds legal title be transferred to A.").
     ¶19    With those general principles as background, we can
recognize the first clue that a constructive trust is a remedy,
not a cause of action:           it functions as a means of repairing
divided    ownership     interests,     not    as    a   means   of    determining
whether they are in need of repair.                 It is for the "protection
of a beneficial interest," Bautista, 16 Wis. 2d at 312 (emphasis
added), as opposed to determining who owns that interest.                            It
allows    the   beneficial      owner   to    "obtain     possession        from   the
wrongful holder," Richards, 58 Wis. 2d at 297, but it does not
establish the wrongfulness of the holding.                 It allows the court

     13Black's Law Dictionary defines "cestui que trust" as
"[s]omeone who possesses equitable rights in property, usu[ally]
receiving the rents, issues, and profits from it; beneficiary."
Cestui Que Trust, Black's Law Dictionary (10th ed. 2014).


                                        14
                                                                                 No.     2017AP170



to   "direct[]         that     property      to       which     B    holds   legal     title    be
transferred to A," Restatement (Third) of Restitution and Unjust
Enrichment § 55 cmt. b, but it does not provide the basis for
ousting party B from his legal title.                            Constructive trust is a
kinetic device that operates on a presupposed liability.                                        And
that leads us to the second clue, which is embedded in the way
we talk about that presupposition.
      ¶20    We        commonly       say     that        "[a]       constructive      trust     is
imposed     by     a    court        of    equity      to   prevent       unjust       enrichment
arising when one party receives a benefit the retention of which
would be unjust as against the other."                                Prince v. Bryant, 87

Wis. 2d 662,           667,    275    N.W.2d 676          (1979).        When    we     speak    of

"constructive           trust"        and    "unjust        enrichment,"         the      pattern
matches what we described in Goetz, in which we said a "remedy"
is   "the     means       or        method    whereby          the    cause     of    action     is
effectuated."            Goetz, 31 Wis. 2d at 273.                      In other words, we
determine         whether           the     defendant          owes     the     plaintiff        an
enforceable duty, and then we identify a method by which to
actualize it.             We used that exact formulation in Schmalz v.
McKenna:      "'Where a person holding title to property is subject
to an equitable duty to convey it to another on the ground that
he would be unjustly enriched if he were permitted to retain it,
a    constructive         trust       arises.'"             58       Wis. 2d 220,      228,     206
N.W.2d 141 (1973) (quoting Restatement (First) of Restitution
§ 160 (1937)).           See also Warsco v. Oshkosh Sav. & Tr. Co., 190
Wis. 87,     90-91,           208    N.W. 886       (1926)       ("'Whereever          [sic]    one
person      has    wrongfully             taken     the     property       of    another,       and
                                                  15
                                                                         No.     2017AP170



converted       it    into    a   new    form,    or   transferred      it,    the    trust
arises and follows the property or its proceeds.'[14]                          It appears
to   us    that      the     foregoing     quotation      from      Pomeroy     not    only
constitutes good logic, but sound law.") (emphasis omitted).                              A
constructive trust is what arises when the defendant violates an
antecedent duty that will leave him unjustly enriched.                                It is
the defendant's obligation to perform the duty that is the cause
of action.           The constructive trust exists for the purpose of
providing a remedy when he fails to do so.
     ¶21    As an aside, it is important to note that although
proving unjust enrichment means the plaintiff is entitled to a
remedy,    it     does not        necessarily entitle          him to    this remedy.

After establishing unjust enrichment, the plaintiff must next
demonstrate          that    a    constructive         trust   is    warranted.          "A
constructive          trust       will     be      imposed       only     in      limited
circumstances."             Wilharms v. Wilharms, 93 Wis. 2d 671, 678–79,
287 N.W.2d 779 (1980).              The limitation to which Wilharms refers
is the "additional showing" a plaintiff must undertake before he
may have this remedy:

     Despite the suggestion of this rule[15] that unjust
     enrichment alone will give rise to a constructive
     trust, however, the decisions of this court have
     consistently  required   an  additional   showing.  A
     constructive trust will be imposed only where, by
     means of ". . . actual or constructive fraud, duress,

     14Quoting 3 Pomeroy,                Equity    Jurisprudence (4th           Ed.) pp.
2397-2401.
     15   Restatement (First) of Restitution § 160 (1937).


                                             16
                                                                            No.     2017AP170


      abuse of confidence, mistake, commission of a wrong,
      or by any form of unconscionable conduct," the one
      against whom the trust is imposed "has either obtained
      or holds the legal title to property which he ought
      not in equity and in good conscience beneficially
      enjoy . . . [.]"
Gorski v. Gorski, 82 Wis. 2d 248, 254-55, 262 N.W.2d 120 (1978)
(quoting Baustista, 16 Wis. 2d at 312).                            See also Prince, 87
Wis. 2d at 667 (explaining the factors that must be shown in
addition to unjust enrichment include "actual or constructive

fraud,     duress,    abuse       of   confidential           relationship,        mistake,
commission of a wrong or any form of unconscionable conduct.");
Meyer v. Ludwig, 65 Wis. 2d 280, 285–86, 222 N.W.2d 679 (1974)

("[B]oth    cases[16]      go    beyond     the      unjust    enrichment-only         test,
suggested     by     the        Restatement         rule,     to     require      something
additional     [such        as] . . . 'duress,               abuse     of      confidence,
mistake, commission of a wrong, or by any form of unconscionable
conduct . . . .");         Masino      v.      Sechrest,      268    Wis. 101,     107,    66

N.W.2d 740 (1954) ("The underlying principle of a constructive
trust is the equitable prevention of unjust enrichment which
arises from fraud or the abuse of a confidential relationship.

'A constructive trust arises if, but only if, it is shown that
the   transferee        was      guilty        of    fraud    or     the    abuse     of    a
confidential       relationship,          or    if    the     transfer      was    made    in
contemplation of death, or is in the nature of a mortgage.'
Scott on Trusts, vol. 3, § 481.3, 2358.").                         Therefore, Steven is

      16Schmalz v. McKenna, 58 Wis. 2d 220, 206 N.W.2d 141
(1973); Bautista v. Schneider, 16 Wis. 2d 304, 114 N.W.2d 449
(1962).


                                               17
                                                                     No.     2017AP170



not entitled to a constructive trust as a remedy unless he can
prove unjust enrichment and the "additional showing" described

in Gorski.
     ¶22    We recognize we have not been entirely consistent in
identifying a constructive trust as a remedy.                  Certainly, there
have been times that we have explicitly recognized it as such.
See, e.g., Prince, 87 Wis. 2d at 667-68 ("Since the doctrine of
constructive trust is an equitable remedy . . . ."); Pluemer v.
Pluemer, 2009 WI App 170, ¶9, 322 Wis. 2d 138, 776 N.W.2d 261
("A constructive trust is an equitable remedy imposed to prevent
unjust enrichment."); Conn. Gen. Life Ins. Co. v. Merkel, 90
Wis. 2d 126,     130,    279    N.W.2d 715         (Ct.     App.      1979)         ("A

constructive trust is an equitable remedy . . . .").                          But at
other   times,   we   have   left    the   impression     it    is    a     cause    of
action.      See, e.g., Gorski,       82   Wis. 2d at     254       ("the    amended
complaint does allege facts sufficient to support a cause of
action on the theory of a constructive trust."); see also Demos
v. Carey, 50 Wis. 2d 262, 269, 184 N.W.2d 117 (1971) ("[T]he
facts     alleged . . . do     not    state    a    cause      of     action        for
constructive     trust.").      To    remove   any    confusion            about    the
matter, we conclude that a constructive trust is a remedy, not a




                                      18
                                                             No.   2017AP170



cause of action.      In doing so, we join the overwhelming majority
of our sister jurisdictions who have addressed this question.17
                 B.   Persistency of Constructive Trusts
      ¶23      Conceptually, there are two potential paths by which
a person may pursue a constructive trust against property in
another's possession.        First, the plaintiff may directly assert
a claim against the defendant (as described above) claiming she
has been unjustly enriched and that the circumstances by which
the   unjust    enrichment   arose   satisfy   the   "additional   showing"
described by Gorski.         Or second, the plaintiff may prove that

the defendant came into possession of property that was already
burdened with a constructive trust.

      ¶24   Once a constructive trust exists, it travels with the
property to which it attaches.        So, as long as the plaintiff can
trace the property from one person to the next, he may have this

      17
       Over 30 jurisdictions recognize that a constructive trust
is a remedy.    See, e.g., Freeland v. IRS, 264 B.R. 916, 924
(N.D. Ind. 2001) ("A constructive trust is not a cause of action
rather it is a remedy that may be invoked when one party has
been unjustly enriched at the expense of another."); Keeling v.
Keeling, 145 So. 3d 763, 769 (Ala. Civ. App. 2014) (per curiam)
("'[A] constructive trust is an equitable remedy; and a request
to impose such a trust is not a cause of action that will stand
independent of some wrongdoing. . . .'      In other words, a
request for the imposition of a constructive trust must be
tethered to some viable underlying cause of action." (internal
citations omitted) (bracket in original)); Sherer v. Sherer, 393
S.W.3d 480, 491 (Tex. App. 2013) ("A constructive trust is a
remedy——not a cause of action. . . .     An underlying cause of
action such as a breach of fiduciary duty, conversion, or unjust
enrichment is required.    The constructive trust is merely the
remedy used to grant relief on the underlying cause of
action.").


                                     19
                                                                         No.     2017AP170



remedy until the property comes into the hands of a bona fide
purchaser for value and without notice of the claim:

       [E]quity impresses a constructive trust upon the new
       form or species of property, not only while it is in
       the hands of the original wrongdoer, but as long as it
       can be followed and identified in whosesoever hands it
       may come, except into those of a bona fide purchaser
       for value and without notice . . . .
Warsco, 190 Wis. at 90 (quoting 3 Pomeroy, Equity Jurisprudence

(4th     Ed.)    pp.    2397-2401)       (emphasis       omitted)).            See   also
Richards, 58 Wis. 2d at 298 ("'Where a person holding property
transfers it to another in violation of his duty to a third
person, the third person can reach the property in the hands of
the transferee (by means of a constructive trust) unless the
transferee is a bona fide purchaser.'") (quoting 5 Scott, Law of
Trusts (3d ed.), p. 3444, § 470).                  If the property reaches the
hands of a bona fide purchaser for value, the constructive trust

attaches to the proceeds from the purchase.                          "As a necessary
consequence of this doctrine, whenever property subject to a
trust    is     wrongfully       sold    and     transferred      to    a     bona   fide
purchaser,      so     that    it   is   freed    from    the    trust,        the   trust
immediately attaches to the price or proceeds in the hands of
the vendor . . . ."            Warsco, 190 Wis. at 90 (quotation omitted).
                               C.   Steven's Complaint
       ¶25    Armed     with    these    principles,      we    are     now    ready   to
scrutinize Steven's Complaint for a cause of action capable of
implicating the property in Terry's possession.                        As we discussed

above,    we will not be            captured     by labels      as     we do     so, but
neither will we rewrite Steven's Complaint.                     He is the master of

                                           20
                                                                            No.     2017AP170



his     pleadings.           Nor    will      we     countermand        his        strategic
calculations,        such    as     his    affirmative          decision      to     dismiss
certain causes of action.              It is not for us to resurrect what he
has     let    go.      We      will      consider     the      Complaint         from    two
perspectives.          First, we       will   determine whether             it     pleads   a
cause    of    action     directly        against    Terry.         Second,        we    will
consider whether it pleads a cause of action against one of her
siblings that could potentially call into question her ownership
of the inheritance she received from her parents.
                             1.    Claims Against Terry
      ¶26     We begin by determining whether the Complaint states a
cause of action against Terry.                   As filed, two sections of the

Complaint      made     allegations         that     relate       to    her        potential
liability to Steven.               In one of them, the Complaint claimed
Terry    had    been    unjustly       enriched      as     a    consequence        of    her
siblings' representations and conduct, the result of which was
that she received one-third of her parents' estates instead of
one-quarter      (count      six——unjust      enrichment).             As   we     described

above, unjust enrichment is the cause of action for which a
constructive trust is a potentially available remedy.                               However,
we are analyzing the Complaint not as it was filed, but as it
was presented to the circuit court on the defendants' motion for
summary judgment.           In response to that motion, Steven explicitly
dismissed      his     unjust      enrichment       claim       against     all     of   the




                                            21
                                                                   No.    2017AP170



defendants.18      Consequently, count six (unjust enrichment) is no
longer    an    operable    part   of   the    Complaint     and   is    therefore
incapable of asserting a cause of action against Terry.
     ¶27       The other section of the Complaint containing factual
allegations against Terry is count nine (constructive trust).
There, the Complaint says "the defendants" converted Steven's
one-quarter share of their parents' estates, such that each of
them should be considered to be holding Steven's share of the
inheritance as a constructive trust (count nine).                       Because we
construe pleadings liberally in the first step of the summary
judgment methodology, we will understand Steven's reference to
"defendants" to assert that Terry, as well as Susan and James,

converted his share of the inheritance.19                 Count nine does not
itself    describe    the     conversion;     instead,    Steven   placed    those
allegations      in   count    four   (common    law     conversion/fraud),     in


     18Steven's brief in response to the defendants' motion for
summary judgment said:     "Plaintiff voluntarily dismisses his
Sixth Claim for Relief for Unjust Enrichment."   There was good
reason for doing so. The first element of an unjust enrichment
claim requires "a benefit conferred on the defendant by the
plaintiff . . . ."    Sands v. Menard, 2017 WI 110, ¶30, 379
Wis. 2d 1, 904 N.W.2d 789, reconsideration denied, 2018 WI 20,
¶1, 380 Wis. 2d 107, 909 N.W.2d 176, and cert. denied, 139
S. Ct. 101 (2018).   Steven's unjust enrichment claim does not
allege he conferred anything on the defendants.
     19See Wis. Stat. § 802.02(6) ("All pleadings shall be so
construed as to do substantial justice."); Springer v. Nohl
Elec. Prod. Corp., 2018 WI 48, ¶10, 381 Wis. 2d 438, 912
N.W.2d 1 ("we liberally construe pleadings 'with a view toward
substantial justice to the parties.'" (citations omitted)).



                                        22
                                                                      No.     2017AP170



which      he     says    that      through    "Susan   and    James'    false          and
fraudulent representations and conduct described above, amongst
others, Susan and James caused funds to be diverted from Steven
to themselves."               Even if we could consider this an inartfully
drawn claim of unjust enrichment, it would suffer the same fate
as the actual claim of unjust enrichment:                     Steven dismissed it
in response to Terry's motion for summary judgment.20                    With count
four voluntarily dismissed, there is nothing in the Complaint to
give meaning to the allegation of "conversion" in count nine.
So nothing in count nine is capable of serving as an operable
cause of action against Terry.
      ¶28        For these reasons, the Complaint does not plead any

cause      of    action        directly   against   Terry.     So   we      must    next
determine whether the remaining claims Steven made against Susan
and James might give him a right to impress a constructive trust
on the inheritance Terry received from their parents.
           2.    Claims Against Others That Might Implicate Terry
      ¶29        The    two    remaining   claims    presented   to     the    circuit

court on summary judgment were count two (undue influence) and
count           three     (intentional         interference      with         expected
inheritance).           The circuit court dismissed count two, and Steven
did not challenge that decision either in the court of appeals
or   here.         So    the    only remaining      cause   of action    for       us   to


      20
       Steven's brief in response to the motion for summary
judgment said:     "Plaintiff voluntarily dismisses his Fourth
Claim for Relief for Common Law Conversion/Fraud."


                                              23
                                                              No.       2017AP170



consider     is   for   "intentional        interference    with     expected
inheritance."     In this section of his Complaint, Steven alleged
that:

      Susan and James intentionally interfered with Steven's
      expected inheritance through the exercise of undue
      influence on Donald and Betty Lou and other bad faith
      conduct,   including   the    orchestration   of   the
      preparation and execution of the Last Will and
      Testament of Donald J. Tikalsky and the Amended and
      Restated Donald J. Tikalsky and Betty Lou Tikalsky
      Revocable Trust dated April 8, 2009, along with any
      other legal documents prepared for and executed by
      either Donald or Betty Lou on, about or subsequent to
      that date.
He   also   alleged   that   "[b]ut   not   [sic]   for   Susan   and    James'
conduct described above, Donald and Betty Lou would have left a
legacy to Steven equal to that of the legacy left to each of
their other three issue."21




      21
       Although this cause of action survived summary judgment,
the same cannot be said with respect to all of the supporting
allegations.   The circuit court concluded that the defendants
had nothing to do with the "orchestration and preparation" of
the Tikalskys' estate planning documents. Specifically, it said
that Steven presented no evidence "that the defendants were
involved in any way in the preparation or arrangement of the
2007, 2008, or 2009 wills or revocable trusts."    And it noted
that it was undisputed that the defendants knew nothing of the
Tikalskys' decision to disinherit Steven, or anything about the
changes to their estate planning documents (prior to Mr.
Tikalsky's death) to accomplish that objective.

                                                                  (continued)
                                      24
                                                                      No.    2017AP170



       ¶30     So   Steven's    challenge      here   is    to    explain    how     the
allegations in his "intentional interference" claim can provide
a vehicle by which he can reach property in Terry's possession.22
Because these facts do not charge her with any culpable conduct,
Steven       turns to our      "innocent    beneficiary" line         of cases        to
argue       that    he   may   have   access    to    property      in   her        hands
notwithstanding the fact that she has engaged in no inequitable
behavior.           However,   the    circumstances        he    describes     in    his
Complaint do not fit the contours of the innocent beneficiary
doctrine.
       ¶31     Our opinion in Richards provides a good illustration

of the situations that call for constructive trusts on property

in the hands of innocent beneficiaries.                Richards, 58 Wis. 2d at
290.        There, Mr. Richards was subject to a divorce decree that


     Chief Justice Roggensack's dissent claims the circuit
court's conclusions were erroneous, but she offers no support
for that assertion other than a vague observation that "[a]ll
one has to do is review the record to learn that Steven had a
story to tell that is the opposite of what his sisters and
brother told."   Chief Justice Roggensack's dissent, ¶80.   That
may be true in gross, but it is incorrect in fine. The parts of
the record cited by the dissent have nothing at all to do with
what the circuit court said about the lack of evidence proffered
by Steven. If the record contains evidence that contradicts the
circuit court, neither the dissent nor Steven has found it.
       22
       Although    "intentional   interference  with   expected
inheritance" is a tort, we examine the claim without reference
to how Steven labeled it.      The purpose of our review is to
determine whether the alleged facts could be understood as
making a claim of unjust enrichment that could potentially
support imposition of a constructive trust on property in
Terry's possession.


                                         25
                                                                            No.     2017AP170



required     him to name his             minor children as beneficiaries                     of
certain      life     insurance      policies.          Id.   at     292.          After     he

remarried, he designated his new wife as the beneficiary.                                   Id.
We recognized that he who pays the premium of a life insurance
policy gets to name the beneficiary.                    Id. at 293.             But we also
said    that    the     divorce      decree     created       in     the        children     an
equitable      right     to    the   insurance         proceeds:           "[A]lthough        a
divorce judgment does not expressly prohibit the owner of an
insurance policy from changing the beneficiary, the decree of
the court is to be given the effect of a continuing obligation
to carry out the provisions set forth therein."                                 Id. at 296.
Therefore,       when    Mr.      Richards          changed   the     life         insurance

beneficiary, he was conveying a property interest to his wife
that was already freighted with a constructive trust.                               We said
"the mere ignorance of the recipient of the original impropriety
did    not     make    the    recipient        an    innocent      purchaser         or,     as
contemplated in the rules stated by Scott on Trusts, a bona fide
purchaser."        Id. at 298.
       ¶32   The      general     rule    we    gleaned       from        this    was      that
"'[w]here a person holding property transfers it to another in
violation of his duty to a third person, the third person can
reach the property in the hands of the transferee (by means of a
constructive        trust)      unless    the       transferee       is     a    bona      fide
purchaser.'"        Id. at 298 (citation omitted).                 This rule does not
dispense with the need to prove unjust enrichment or establish
Gorski's "additional showing."                 When this pattern occurs, it is
clear that the innocent beneficiary "was, in fact, enriched,
                                           26
                                                                        No.     2017AP170



although not because of any unconscionable conduct on her part."
Prince, 87 Wis. 2d at 668.           The "additional showing" required by

Gorski, in these situations, is resident in the violation of the
transferor's    obligation      to    a    third      person:      "[A]       change    of
beneficiary in violation of an express provision of a divorce
judgment is a sufficient additional factor," as is "a change of
beneficiary    in   violation    of       an   express      promise     supported       by
consideration . . . ."       Id.      at       670.     The     constructive      trust
attaches to the property in the transferor's hands, following
which    our normal rules       about      the    persistency      of    trusts      (see
supra III.B) come into play, which allow the third party to
reach the property in the hands of all transferees until it

comes into the possession of a bona fide purchaser for value.
      ¶33   Steven's Complaint does not fit this pattern.                              The
Richards rule contemplates the owners of the property conveying
it to an innocent beneficiary in violation of a duty to transfer
it to the plaintiff.     Steven imagines himself to be in the place
of the person to whom the duty is owed, while Terry stands in
for   the   innocent   beneficiary.              Steven's     Complaint       does     not
describe a Richards scenario because it was the Tikalskys, not
Susan and James, who transferred the property in question to
Terry.      And the Tikalskys owed Steven no duty to make him a
beneficiary of their estates.              See Bautista, 58 Wis. 2d at 229;
see also Olszewski v. Borek, 254 Wis. 153, 157, 35 N.W.2d 209
(1948), on reh'g, 254 Wis. 153, 35 N.W.2d 911 (1949) ("It has
often been held by this court that one of the most important
rights that a normal adult person has is his power to dispose of
                                          27
                                                                       No.   2017AP170



his   property by will as             he chooses.       In    fact,    it has    been
referred to by this court as a 'sacred right' and one that is
guaranteed     by     the    constitution.");        Schaefer   v.    Ziebell,    207

Wis. 404, 410, 241 N.W. 382 (1932) ("One of the most important
rights that a person of full age, mature mind, and disposing
memory enjoys is the absolute right to dispose of his property
by will as he may choose.").                So the Tikalskys violated no duty
to Steven when they caused their estate planning documents to
transfer part of their estates to Terry.                    And in the context of
innocent beneficiaries, where there is no violated duty, there
can be neither unjust enrichment nor an "additional showing,"
and so there can be no constructive trust.                    Therefore, the sole

remaining set of factual allegations in Steven's Complaint does
not state a cause of action capable of implicating Terry or the
property in her possession.
                                 3.    The Dissents
                        a.     Chief Justice Roggensack
      ¶34     Chief Justice Roggensack, however, believes there is a
path we can follow from the Complaint's allegations all the way
to a constructive trust over property in Terry's hands.                           She
says "a constructive trust is an appropriate remedy if Susan,
James   and    Terry    have    converted        property    from    their   parents'
estate that would have been devised to Steven but for wrongful
influence      over     Donald        and    Betty    Lou."          Chief    Justice

Roggensack's        dissent,      ¶68.           According      to    the     Chief's
formulation, the Complaint would need to allege facts sufficient


                                            28
                                                                           No.     2017AP170



to support two torts, to wit, conversion and undue influence.
On the state of the record before us, it does not.
       ¶35    With respect to the tort of conversion, the Chief's
dissent says "Steven claims Terry converted property to her own
use that should have been devised to him."                        Id., ¶77.            And it

faults    Terry for not            having    rebutted     that    allegation           in    the
summary judgment proceedings:

       Although Terry's answer denies the factual allegations
       and legal claims made in Steven's complaint, she makes
       no evidentiary offer of proof by affidavit or
       otherwise sufficient to show a prima facie case for
       summary judgment dismissing Steven's claim against her
       for possession and subsequent conversion of property
       that should have belonged to him.
Id., ¶78.        Steven, of course, dismissed his conversion claim.
The dissent, surprisingly, believes this was a non-event.                                        It
says    the    "majority     opinion        mistakenly    concludes        that     'Steven
voluntarily dismissed'             his    allegations     of     wrongful        possession
that    led    to   conversion       of     the    property."        Id.,        ¶78    n.13.
"That," it says, "never happened."                    Id.        The record begs to
differ.       Steven's response to the defendants' motion for summary

judgment      said:      "Plaintiff         voluntarily     dismisses       his        Fourth
Claim for Relief for Common Law Conversion/Fraud."                           That seems
pretty definitive.           But perhaps the dissent means to say that
the voluntary dismissal was merely a representation that Steven
would    no    longer    assert      that    the   alleged       facts    add     up        to    a
conversion.         If that is what the dissent meant, it did not
follow through with its own understanding of what Steven said.
At   every     step     of   the    analysis,       the   dissent        relied        on    the


                                             29
                                                               No.   2017AP170



viability of a conversion claim.23            That is to say, the dissent's
analysis    depends      entirely   on   an   inscrutable   insistence    that
Steven might be able to prove a claim he voluntarily dismissed.
Because the dissent's path to the imposition of a constructive
trust     depends   on    a   nonexistent     conversion    claim,   it   must
necessarily fail.         It must fail for the additional reason that
the other claim upon which its rationale is founded does not
exist either.
     ¶36    The second tort necessary to the dissent's analysis is
"undue influence."        But the circuit court granted Terry summary

     23See, e.g., Chief Justice Roggensack's dissent, ¶73 ("The
complaint alleges that '[t]he funds that constituted a one-
quarter share in Donald and Betty Lou's joint estate plan and
were converted from Steven to the defendants were at all times
after the conversion held by the defendants in constructive
trust for Steven.'" (emphasis added)); id. ("'[A] complaint
states a claim in conversion when it alleges that the plaintiff
is "entitled to immediate possession" of a "chattel" over which
the defendant had wrongfully retained dominion or control.'"
(emphasis added) (citation omitted)); id. ("'An action for
conversion is bottomed upon a tortious interference with
possessory rights.'" (emphasis added) (citation omitted));
id., ¶76 ("In the matter before us, the allegations in the
complaint state a claim for wrongful possession and conversion
of property by Terry on which relief can be granted, and the
answers join issues of fact and of law.") (emphasis added);
id., ¶77 ("Steven claims Terry converted property to her own use
that should have been devised to him.") (emphasis added); id.
("Therefore, if one is in possession of property which in equity
should belong to another and the possessor puts that property to
his or her own use, the possessor has converted property of
another.") (emphasis added); id., ¶78 ("[S]he [Terry] makes no
evidentiary offer of proof by affidavit or otherwise sufficient
to show a prima facie case for summary judgment dismissing
Steven's claim against her for possession and subsequent
conversion of property that should have belonged to him.")
(emphasis added).


                                         30
                                                                             No.     2017AP170



judgment with respect to this claim, and entered a final order
dismissing all claims against her with prejudice.                               Steven has
not appealed the circuit court's ruling on this claim.                                     The
dissent,     however,           says    we    may     ignore    the     circuit      court's
decision, as well as Steven's failure to appeal it:

      The dismissal was not a final judgment with regard to
      Susan and James or Steven; therefore, Steven had no
      right to appeal its dismissal, and he could not bring
      it to us. Wis. Stat. § 808.03. The majority opinion
      errs when it relies on Steven's not appealing the
      dismissal of his claim for undue influence and states
      that the "only remaining cause of action" is the claim
      of intentional interference with expected inheritance.
Chief Justice Roggensack's dissent, ¶67 n.10.
      ¶37    The       dissent     is    correct      that     the    dismissal      was   not
final     "with        regard     to    Susan    and     James,"       but    we    are    not
interested in the status of the claim as against them.                                We are
interested in its status with respect to Terry.                               The circuit
court     thought        the     claim       lacked     merit,       and     the    judgment
dismissing Terry from the case made that conclusion final as
between     her    and     Steven.           Specifically,      if    proven,       this   the
circuit     court        said     "[t]he       defendants'       motion       for    summary
judgment    as     to    the     Second      Claim    for    Relief     asserted      in   the
plaintiffs' complaint, for undue influence is hereby GRANTED,
and that cause of action is hereby dismissed, with prejudice."
The subsequent judgment made it clear the disposition was final
as   between      Terry     and    Steven:           "All    claims    asserted      by    the
plaintiff,        J.    Steven     Tikalsky,         against    the    defendant,         Terry
Stevens, are hereby dismissed, with prejudice."                              It concluded


                                                31
                                                                                   No.    2017AP170



with the admonition that "[t]his Judgment is final for purposes
of appeal."
      ¶38      It      is    an     unremarkable         precept       in       our      rules     of
procedure that a party who does not raise an appealable issue
before the appropriate appellate tribunal forfeits it.                                           See,

e.g.,    Yakus v. United States, 321 U.S. 414, 444                                  (1944)       ("No
procedural          principle        is      more     familiar . . . than                 that      a
constitutional right may be forfeited in . . . civil cases by
the   failure       to      make    timely      assertion       of   the        right    before     a
tribunal     having         jurisdiction         to   determine        it.");         Freytag      v.
C.I.R.,     501     U.S. 868,        894-95      (1991)     (Scalia,         J.,      concurring)
("Forfeiture is 'not a mere technicality and is essential to the

orderly administration of justice.'") (citation omitted); State
v. Huebner, 2000 WI 59, ¶11, 235 Wis. 2d 486, 611 N.W.2d 727
(stating "issues that are not preserved are deemed waived" and
explaining that it                would    be   more precise          to     use      "forfeited"
rather than "waived"); United Concrete & Constr., Inc. v. Red-D-
Mix   Concrete,          Inc.,      2013     WI 72,      ¶16,    349       Wis. 2d 587,           836
N.W.2d 807        ("[b]y       supreme     court      rule,     '[i]f       a    petition        [for
review] is granted, the parties cannot raise or argue issues not
set   forth       in     the      petition      unless    ordered       by       the'     court.")
(brackets       in       original)         (citation       omitted);            Preisler,         360
Wis. 2d 129, ¶59 ("[w]e decline to consider issues not raised in
petitions for review."); Attorney's Title Guarantee Fund, Inc.
v. Town Bank, 2014 WI 63, ¶61, 355 Wis. 2d 229, 850 N.W.2d 28
(Bradley, Ann Walsh, J., dissenting) ("where a party has not
raised    an      issue        before     the    circuit      court     or       the     court     of
                                                 32
                                                                      No.   2017AP170



appeals, we deem that issue forfeited.").                    The circuit court's
adjudication of the undue influence claim, so far as it relates
to Terry,24 became final and appealable upon entry of judgment
disposing of all claims against her.                Steven appealed, but did
not raise this issue before the court of appeals.                      Nor does he
address it here.         Therefore, one of two conclusions must obtain.
Either Steven does not disagree with the circuit court's ruling,
or he forfeited his opportunity to challenge it by failing to
include the issue in his appeal.                Whichever it is, we cannot
simply pretend this is a live claim when Steven has abandoned
it.25        And the dissent does not explain why we should.                 So the
dissent's       entire   analytical     framework       is   faulty    because    it

presumes the existence of two well-pled torts, both of which
have been irrevocably dismissed.
                         b.    Justice Ann Walsh Bradley
        ¶39    Justice Ann Walsh Bradley also believes there is a
path from the Complaint's allegations to a constructive trust
over property in Terry's possession, although it is different

from     the    one   chosen    by   Chief    Justice    Roggensack.        Justice
Bradley        settled   on    count   3——intentional         interference      with

        24
       Resolution of the undue influence claim is not final with
respect to Susan and James, of course, because there are still
matters pending in the circuit court between them and Steven.
        25
       "[T]he issues before the court are the issues presented
in the petition for review and not discrete arguments that may
be made, pro or con, in the disposition of an issue either by
counsel or by the court." State v. Weber, 164 Wis. 2d 788, 789,
476 N.W.2d 867 (1991) (footnote omitted).


                                         33
                                                                                     No.      2017AP170



expected        inheritance.          Unlike        count       2    (undue      influence)            and
count 4 (conversion), this is at least a live claim inasmuch as
neither Steven nor the circuit court dismissed it.                                        It is not,
however,        capable      of    supporting        imposition            of    a     constructive
trust.
      ¶40       The    dissent       largely       adopts           the    court       of    appeals'
understanding that successfully proving count 3 would satisfy
the   requirements           for     imposing        a    constructive           trust.            "With
respect to the first element of a constructive trust," the court
of appeals said, "Steven's allegations and supporting evidence
raise    material       facts tending           to show             that his siblings hold
title      to    property      that       equity     dictates             should     go      to    him."

Tikalsky,        2017AP170,        unpublished           slip       op.,    ¶14.            Therefore,

"'[i]f      proven,         this     claim    would        establish            that      all      three
siblings        (including         Terry)      were        unjustly          enriched             by    an
inheritance that would have gone——at least in part——to Steven.'"
Justice Ann Walsh Bradley dissent, ¶86 (emphasis in original).
      ¶41       But that does not follow at all.                             Proof of count 3
means that Susan and James, not Terry, are liable to Steven.                                            No
principle of equity so much as even hints that proving such a
claim would make anyone other than the tortfeasor responsible to
the victim.           Tortfeasors are liable for their own torts, not
their non-tortfeasor siblings.                  "It is a basic principle of law,
as well as common sense, that one is typically liable only for
his   or    her       own    acts,    not     the        acts   of        others."           Lewis      v.
Physicians        Ins.       Co.     of      Wisconsin,             2001    WI 60,          ¶11,       243
Wis. 2d 648, 627 N.W.2d 484; see also Oxmans' Erwin Meat Co. v.
                                                34
                                                                        No.     2017AP170



Blacketer,        86    Wis. 2d 683,    692,       273   N.W.2d 285      (1979)       ("An

individual        is    personally     responsible        for    his    own     tortious
conduct."); CLL Assocs. Ltd. P'ship v. Arrowhead Pac. Corp., 174
Wis. 2d 604,       610,     497   N.W.2d 115       (1993)    ("[A]s     a     matter    of
justice, tort law shifts the losses caused by a personal injury
to   the    one    at     fault . . . .");       Oliver     Wendell     Holmes,       Jr.,
Agency, 5 Harv. L. Rev. 1, 14 (1891) ("I assume that common-
sense is opposed to making one man pay for another man's wrong,
unless he actually has brought the wrong to pass according to
the ordinary canons of legal responsibility . . . .").26
      ¶42       The dissent and court of appeals disagree.                    They would
make Terry——a non-tortfeasor——liable to Steven for the torts of

Susan and James through the expedient of imposing a constructive
trust      on   property    in    Terry's    possession.          But   they     do    not
describe the mechanism by which Terry could be held liable for
James and Susan's torts.             Nor could they.            In the absence of a
claim      of    unjust     enrichment,      the     only    other      basis    for     a
constructive trust is the transfer of property to an innocent


      26
       This is consistent with how the tort of intentional
interference with expected inheritance was formulated in Harris
v. Kritzik, 166 Wis. 2d 689, 480 N.W.2d 514 (Ct. App. 1992).
There, the court of appeals said: "One who by fraud, duress or
other tortious means intentionally prevents another from
receiving from a third person an inheritance or gift that he
would otherwise have received is subject to liability to the
other for loss of the inheritance or gift."          Id. at 695
(adopting Restatement (Second) of Torts, § 774B (1977)).      The
liability link between tortfeasor and victim is explicit. It is
the one engaging in the tortious conduct who "is subject to
liability to the other for loss of the inheritance or gift." Id.


                                            35
                                                                           No.    2017AP170



beneficiary     in       violation   of    a   duty      to    transfer      it   to   the
plaintiff, as described in Richards.                    Even Wilharms, upon which

both the dissent and the court of appeals relied, recognized
this.      In Wilharms, a husband changed the beneficiary of a life
insurance policy contrary to a court order.                      The Wilharms court
quoted Richards for the controlling principle:                        "'Where a person
holding property transfers it to another in violation of his
duty to a third person, the third person can reach the property
in   the    hands    of    the   transferee     (by      means   of    a   constructive
trust)     unless     the    transferee        is   a    bona    fide      purchaser.'"
Wilharms, 93 Wis. 2d at 679.              As discussed above, count 3 cannot
possibly describe such a situation because the transferors——the

Tikalskys——were under no obligation to transfer anything at all
to Steven.          So the claim that Susan and James intentionally
interfered     with       Steven's   expected       inheritance        cannot     support
imposition     of    a    constructive     trust        over   property      in   Terry's
possession.27

      27
       The dissent says Wilharms v. Wilharms, 93 Wis. 2d 671,
287 N.W.2d 779 (1980), recognized the existence of a free-
floating constructive trust that can attach to property without
reference to a supporting cause of action.     Justice Ann Walsh
Bradley dissent, ¶83 n.2. Wilharms did no such thing. To the
contrary, it tightly tied the availability of a constructive
trust to the potential unjust enrichment consequent upon Dennis
Wilharms having named a new insurance beneficiary in violation
of a court order. We remanded the Wilharms case, and in doing
so we directed that future proceedings concentrate on whether
there had been unjust enrichment:       "The question on remand
therefore is whether the parents of Dennis Wilharms were
unjustly enriched by their own or their son's wrongful conduct."
Wilharms, 93 Wis. 2d at 679.     In other words, a constructive
trust would not attach in the absence of unjust enrichment.
                                                                            (continued)
                                          36
                                                                          No.   2017AP170



                                              *
       ¶43       Steven's Complaint cannot survive summary judgment if
it   does    not     state   a   claim      on    which   relief    may   be    granted.
Before      we    assayed    the    Complaint       for   the    existence      of   such
claims, we first had to clarify what qualifies as a cause of
action.          After concluding that a constructive trust does not
fall   into       that   category,     we    nonetheless        scoured   the   alleged
facts——without regard for how they were grouped or labeled——to
determine whether they comprised one or more causes of action
against Terry or were otherwise capable of calling into question
her ownership of the inheritance she received from her parents.
They did not.

                                    IV.     CONCLUSION
       ¶44       We hold that a constructive trust is not a cause of
action and that Steven's Complaint does not state a claim for
relief against Terry.              Therefore, the circuit court did not err
when it dismissed her from the case with prejudice.


     Because there can be no constructive trust in the absence
of a good cause of action, the dissent's analysis is flawed.
The dissent acknowledges there are no remaining claims against
Terry. Justice Ann Walsh Bradley dissent, ¶83 n.2. And it does
not address how the Tikalskys' decision to disinherit Steven is
comparable to Dennis Wilharms' decision to name a new life
insurance beneficiary.   Because it was Mr. Wilharms' violation
of a duty that potentially gave rise to a claim of unjust
enrichment, the dissent must identify a correlative duty here.
But the Tikalskys were under no obligation to make Steven an
heir, so disinheriting him violated no duty.     Contrary to the
dissent's   argument,  therefore,   Wilharms  does   not  say  a
constructive trust can be imposed in this case because there has
been no violated duty.    So Wilharms can provide no succor for
the dissent's belief in a self-animating constructive trust.

                                             37
                                                               No.   2017AP170



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




                                  38
                                                                   No.   2017AP170.akz


     ¶45    ANNETTE KINGSLAND ZIEGLER, J.                 (concurring).       I join
the majority but concur and write separately to further clarify
the issue we were called upon to decide, which is, whether a
constructive trust is an independent cause of action.                        Because
it is not and instead is a remedy, Terry Stevens ("Stevens")
must be dismissed from this action.                 Stated differently, it is
undisputed that Steven Tikalsky ("Tikalsky") alleged only two
causes of action against Stevens: (1) unjust enrichment and (2)
constructive       trust.      As    the       unjust     enrichment     claim     was

dismissed, we are left to decide whether a constructive trust is
a stand-alone cause of action or instead, a remedy.                       Because it
is a remedy, Stevens was properly dismissed.                     If this case were
not now dismissed as to Stevens, she would remain solely to
satisfy    a remedy awarded         if   alleged     wrongdoing of others           is
proven.     To the extent constructive trusts have been imposed,
they are a potential remedy once a viable cause of action has
been proven against that defendant.                 Here, no viable cause of

action remains against Stevens.                  Constructive trust is not a
stand-alone cause of action.             As a result, Stevens was properly
dismissed from the action.           See, e.g., Sulzer v. Diedrich, 2003

WI 90, ¶¶26–30, 263 Wis. 2d 496, 664 N.W.2d 641; Wilharms v.
Wilharms,     93    Wis. 2d 671,         679–81,    287     N.W.2d 779       (1980);
Richards    v.   Richards,    58    Wis. 2d 290,        296–99,    206    N.W.2d 134
(1973); Schmalz v. McKenna, 58 Wis. 2d 220, 231, 206 N.W.2d 141
(1973);     Connecticut      General      Life     Ins.    Co.    v.     Merkel,    90
Wis. 2d 126, 132–34, 279 N.W.2d 715 (Ct. App. 1979) (all cases



                                           1
                                                                        No.   2017AP170.akz


of constructive trust with underlying causes of action being
unjust enrichment).
       ¶46     I write to further explain why here, Stevens does not
properly remain in this case because no viable legal theory of
liability has been alleged against her.                          Although Tikalsky's
arguments have morphed somewhat, Tikalsky makes no argument that
any otherwise unstated cause of action, such as conversion, has
been       alleged   against      Stevens.1         Instead,     he    urges    that    the
complaint       be    viewed      to    support         "an    equitable       claim    for

imposition of a constructive trust" despite no allegation made
against the innocent property holder.                         Tikalsky argues, "once
the    elements      of    a    constructive        trust     are     established,      the
equitable claim can proceed."                     I would clarify that absent a
viable cause of action——which could be the violation of a court
order or contract which resulted in wrongful distribution to an
innocent       beneficiary——there        can       be    no   consequent       remedy    of
constructive trust against Stevens.                     Here, no such violation of

court order or contract has been alleged.                        Tikalsky's argument
instead      rises   and       falls   with   variations        of    the     same   theme:
whether a constructive trust is a viable, stand-alone cause of
action.        Specifically, he argues that he has stated a viable
cause of action by pleading the elements of constructive trust,

       1
       Under Wisconsin law, a plaintiff claiming conversion must
show that (1) the defendant intentionally controlled or took
property belonging to the owner; (2) the defendant controlled or
took the property without the owner's consent or without lawful
authority; and (3) the defendant controlling or taking the
property seriously interfered with the owner's right to possess
the property.   Wis. JI–Civil 2200 (2014).


                                              2
                                                                             No.   2017AP170.akz


that a claim for "restitution" alone is viable, and because "the
equitable    claim or          cause       of   action might          be    labeled 'unjust
enrichment' based upon third party wrongdoing."                               Here, seeking
this constructive trust remedy, absent an underlying cause of
action, is legally insufficient.2
     ¶47    The majority correctly concludes that a constructive
trust is a remedy, not a cause of action.                                  Additionally, the
majority    correctly        concludes          that       Tikalsky    could       not   seek    a
constructive trust without a viable underlying cause of action

against    Stevens.          Because        no viable         cause of action remains
against     her,       the     remedy       of        a    constructive       trust      cannot
independently exist as a stand-alone claim.                                 In other words,
Tikalsky is precluded from asserting the right to this remedy
absent an underlying cause of action that would give rise to a
constructive       trust.        While          the       majority    is    correct      in   its
conclusions,       I    write        to     further         emphasize        the    majority's
conclusions.           There    is     a    fundamental         difference         between      an

underlying    cause      of     action——here,              unjust     enrichment——and         the
potential remedy of a constructive trust.
     ¶48    I begin with the general distinction between a cause
of action and a remedy.                    The majority correctly states that
causes of action and remedies are distinct legal concepts, and
must be understood and applied as such.                              "[A] cause of action


     2 The remaining claims against the other siblings, however,
are not affected by this determination.     Those other siblings
have not made any allegations against Stevens so to otherwise
make her a proper party to this litigation.


                                                 3
                                                                                No.      2017AP170.akz


owes its existence to a set of operative facts."                                          Wussow v.

Commercial Mechanisms, Inc., 97 Wis. 2d 136, 145, 293 N.W.2d 897
(1980);     see also Caygill               v.    Ipsen,       27    Wis. 2d 578,              582, 135
N.W.2d 284 (1965) ("The operative facts, not the consequences,
are   determinative           of    a    cause    of     action.").             A     remedy      is   a
consequence that flows from a successful cause of action.                                        Goetz
v. State Farm Mut. Auto Ins. Co., 31 Wis. 2d 267, 273–74, 142
N.W.2d 804       (1966);          see    also    Franklin          v.       Gwinnett      Cty.    Pub.
Schs.,     503    U.S.       60,    73–74       (1992)      (discussing            the    difference

between     a    cause       of    action       and     a    remedy,         and    stating       that
"[f]ederal courts cannot reach out to award remedies when the
Constitution or laws of the United States do not support a cause
of action").            A viable cause of action is thus a necessary
precedent, separate and distinct from a potential remedy, but
required in order to give rise to the potential relief prayed
for in the complaint.               A cause of action owes its existence to a
set   of    operative facts              and    legal       conclusions         that      if    proven

require consideration of whether a remedy should be awarded.
Contrary to the court of appeals' conclusion, such a distinction
is not "largely immaterial."                     Rather, the distinction between a
cause of action and a remedy is essential.
      ¶49       Since    a    constructive            trust    is       a    remedy      and     not   a
stand-alone        cause      of    action,       I     will       briefly      discuss         unjust
enrichment as a cause of action.                       Unjust enrichment is a stand-
alone cause of action.                  See, e.g., Sands v. Menard, 2017 WI 110,
¶¶29–30,     379    Wis. 2d 1,           904     N.W.2d 789         (referring           to    "claims
based upon unjust enrichment" and referring to "action[s] for

                                                  4
                                                                               No.    2017AP170.akz


recovery based upon unjust enrichment"); Admiral Ins. Co. v.

Paper    Converting            Machine          Co.,      2012      WI   30,       ¶¶49–50,      339
Wis. 2d 291, 811 N.W.2d 351 (describing unjust enrichment as a
theory       of    recovery      and       as    a       claim);     Watts     v.     Watts,     137
Wis. 2d 506,        530,       405    N.W.2d 303           (1987)    (stating        that   unjust
enrichment is a "theory of recovery" and describing it as a
stand-alone         cause        of       action);          Lawlis       v.    Thompson,         137
Wis. 2d 490,            496,    405       N.W.2d 317           (1987)    (describing        unjust
enrichment         as    "a    well-recognized             and    long-accepted        theory     in

Wisconsin jurisprudence," and referring to it as "a cause of
action");         Puttkammer         v.    Minth,         83     Wis. 2d 686,        688–89,     266

N.W.2d 361 (1978) (referring to unjust enrichment as a "cause of
action" and considering whether the plaintiff stated a claim for
relief for unjust enrichment).
       ¶50    "[A]n 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."                       Watts, 137 Wis. 2d at 530 (citing
Puttkammer, 83 Wis. 2d at 689).                          In a cause of action for unjust
enrichment, "the focus is on the benefit received by one party
from    the other party               which      would         be inequitable to retain."
Sands,       379        Wis. 2d 1,        ¶41     (citing          Boldt      v.     State,      101
Wis. 2d 566,        573,       305 N.W.2d 133 (1981)).                     To succeed       on    an
unjust enrichment claim and thus be entitled to restitution, a
plaintiff must show "(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

                                                     5
                                                                        No.    2017AP170.akz


the defendant under circumstances making it inequitable to do
so."    See Sands, 379 Wis. 2d 1, ¶30 (citing Watts, 137 Wis. 2d

at 531); see also Wis. JI-Civil 3028 (2016).
       ¶51    While     unjust   enrichment       is    undoubtedly           a    cause    of
action,      a constructive      trust is but          one     method of           providing
restitution to        a party     who    succeeds      on    an   unjust          enrichment
claim and it has its own elements.                     Although Wisconsin courts
have    not    always    been    precise   and     uniform        when    describing         a
constructive trust, today we clarify that that a constructive

trust is a remedy and not an independent cause of action.                                   We
decline to extend here the doctrine of unjust enrichment under a
third-party beneficiary theory so to create a constructive trust
as a remedy for Tikalsky when no viable cause of action has been
pled.
       ¶52    "A constructive trust is an equitable device used to
prevent unjust enrichment which arises when a party receives a
benefit      the retention of          which is    unjust      to   another party."

Sulzer, 263 Wis. 2d 496, ¶20 (citing Wilharms, 93 Wis. 2d at
678-79).       Put differently, where unjust enrichment occurs, a
constructive trust may be imposed as a remedy to ensure that an
unjustly received benefit goes to the proper party.                               However, a
constructive        trust   is   not    always    the       automatic         remedy    when
unjust enrichment has been proven.                 This court has stated that
the conditions precedent for such a constructive trust to be
imposed       are   "(1)    unjust      enrichment       and      (2)     abuse        of    a
confidential relationship or some other form of unconscionable
conduct."       Watts, 137 Wis. 2d at 533–34.                 Thus, a constructive

                                           6
                                                           No.   2017AP170.akz


trust might or might not be the proper remedy even when unjust
enrichment is proven.
       ¶53   This court has stated that circuit courts may impose a
constructive trust in cases of "'actual or constructive fraud,
duress, abuse of confidence, mistake, commission of a wrong, or
by any form of unconscionable conduct,'" and only where "the one
against whom the trust is imposed 'has either obtained or holds
the legal title to property which he ought not in equity and in
good   conscience     beneficially    enjoy.'"    Gorski   v.    Gorski,   82

Wis. 2d 248, 254–55, 262 N.W.2d 120 (1978) (quoting Bautista v.
Schneider, 16 Wis. 2d 304, 312, 114 N.W.2d 449 (1962)).                Thus,
as our jurisprudence reflects, no stand-alone cause of action
exists for a constructive trust, and a constructive trust remedy
will not be imposed absent successful prosecution of a viable
cause of action and then the elements of constructive trust must
be   proven.     In    this   case,   the   relationship   between    unjust
enrichment and a constructive trust is that of a cause of action

and a remedy, not that of two independent causes of action.
       ¶54   As a practical matter, consider for example, how a
defense might ever be mounted to a request for a constructive
trust if no cause of action exists to defend against.                   If a
constructive trust were to be considered a stand-alone cause of
action, an asset-holder would be left with no defense or role
other than to possibly assist in the defense of those against
whom a claim has been made.           The asset-holder's property would
be held hostage, subject to the will and decisions of those who
are able to mount a defense, despite the fact that plaintiff

                                      7
                                                              No.   2017AP170.akz


asserts no claim or wrongdoing against the asset-holder.                  It is
most       incongruous   that   one   be   a   party   to   litigation   simply
because a plaintiff would prefer to, if successful, collect one
person's property by a constructive trust rather than that of
the parties for which liability is alleged.3                As highlighted by

       3
       I recognize that this court has imposed a constructive
trust on innocent beneficiaries who engaged in no wrongdoing,
but those cases have been limited to situations where a
plaintiff has established a right to the innocent party's
property due to an existing court order, contract, or a
confidential relationship. See Sulzer v. Diedrich, 2003 WI 90,
¶¶26-30, 263 Wis. 2d 496, 664 N.W.2d 641 (imposing constructive
trust where retirement benefits were not properly divided
pursuant to divorce judgment due to mutual mistake); Wilharms v.
Wilharms, 93 Wis. 2d 671, 679–81, 287 N.W.2d 779 (1980) (holding
that constructive trust may be imposed where divorced husband
changed life insurance beneficiary designation to dispose of his
ex-wife's interest in violation of a temporary court order, but
remanding for further factual determination); Prince v. Bryant,
87 Wis. 2d 662, 672–75, 275 N.W.2d 676 (1979) (stating that a
constructive trust may be imposed where a divorced husband
removed his ex-wife as a named beneficiary of his life insurance
policies in violation of temporary court order, but remanding
for further findings of fact on the issue); Richards v.
Richards,   58   Wis. 2d 290,    296–99,   206 N.W.2d 134   (1973)
(imposing constructive trust where divorced husband changed
beneficiary of life insurance policy to the defendant in
violation of divorce judgment); Bautista v. Schneider, 16
Wis. 2d 304,    312–14,     114    N.W.2d 449  (1962)    (imposing
constructive trust to require divorced wife to return proceeds
from bonds to her ex-husband's estate in conformity with their
divorce judgment).     However, where no judgment, contract, or
confidential relationship has been violated, this court has also
declined to impose a constructive trust where the defendant
engaged in no "fraud, duress, abuse of confidence, mistake,
commission   of   a   wrong   or    'any  form of   unconscionable
conduct[,]'" and where the plaintiff established no right to the
defendant's property. Schmalz v. McKenna, 58 Wis. 2d 220, 231,
206 N.W.2d 141 (1973) (declining to impose constructive trust
where decedent added $10,000 bequest to defendant pursuant to a
contract but defendant breached contract prior to decedent's
death, because the will did not reference or depend on the
contract and defendant engaged in no wrongdoing); see also
                                                       (continued)
                                  8
                                                                 No.   2017AP170.akz


the   majority,     nearly    40    jurisdictions    have    rejected         such   a
proposition, holding that a constructive trust is a remedy and
not a cause of action.         See, e.g., Nat'l Union Fire Ins. Co. of

Pittsburgh v. DiMucci, 34 N.E.3d 1023, 1045 (Ill. App. Ct. 2015)
("We first note that a constructive trust is a remedy, not a
cause    of action.");       Keeling v. Keeling, 145 So. 3d 763, 769
(Ala. Civ. App. 2014) ("[A] constructive trust is an equitable
remedy; and a request to impose such a trust is not a cause of
action    that     will   stand     independent     of    some    wrongdoing.");

Sterenbuch    v.    Goss,     266   P.3d    428,    437   (Colo.       App.    2011)

(citation omitted) ("[A] constructive trust, being a remedy to
prevent unjust enrichment, is not to be pled as a separate cause
of action . . . .").


Connecticut General Life Ins. Co. v. Merkel, 90 Wis. 2d 126,
132–34, 279 N.W.2d 715 (Ct. App. 1979) (declining to impose
constructive trust where divorced husband removed his ex-wife as
a named beneficiary of his life insurance policy because no
judgment   or   contract   was  violated).      A   "confidential
relationship" in the context of constructive trust cases
involves more than the presence of a familial relationship
alone, as there must be "other facts indicating a relation of
confidence" for a constructive trust to be imposed.     Gorski v.
Gorski, 82 Wis. 2d 248, 256–58, 262 N.W.2d 120 (1978) (denying
defendant's motion to dismiss and stating that a constructive
trust may be imposed where the defendant retained funds his
brother-roommate gave him over a period of 12 years in violation
of an oral agreement, as the facts alleged indicated a close and
"confidential relationship" between the parties); see also Meyer
v. Ludwig, 65 Wis. 2d 280, 285–88, 222 N.W.2d 679 (1974)
(imposing constructive trust to convey title to a house to
defendant, where defendant made substantial improvements over a
period of years on the house her parents promised to give her,
and where the facts established a confidential relationship
between the plaintiff and defendant, who were father and
daughter and who lived on the same property for years and
provided each other mutual support and assistance).

                                        9
                                                                     No.    2017AP170.akz


     ¶55    By way of analogy, the remedy of a constructive trust
operates similar to the remedy of punitive damages.                         The remedy
of punitive damages does not independently exist as a claim and
in fact, is not provided for unless compensatory damages are
first awarded.         Wisconsin law is clear that a party may not be
awarded punitive damages without a viable underlying cause of
action and a compensatory award.             See Groshek v. Trewin, 2010 WI

51, ¶30, 325 Wis. 2d 250, 784 N.W.2d 163; Tucker v. Marcus, 142
Wis. 2d 425, 440–41, 418 N.W.2d 818 (1988); Hanson v. Valdivia,

51 Wis. 2d 466, 474, 187 N.W.2d 151 (1971).                      Wisconsin Stat.
§ 895.043    allows      punitive       damages       only   where     "evidence      is
submitted showing that the defendant acted maliciously toward
the plaintiff or in an intentional disregard of the rights of
the plaintiff."        § 895.043(3).
     ¶56    To    seek       either    a   constructive       trust        or    punitive
damages, a party must first succeed on an underlying cause of
action.     If the party does not succeed on an underlying cause of

action,    then   it    is    not     entitled   to    any   relief,       and   neither
punitive damages nor a constructive trust may be sought.                          Simply
stated, neither are stand-alone causes of action.4


     4 Punitive damages were available as a common law remedy.
Since Wis. Stat. § 895.043(3) was created in 1995, Wisconsin
courts have explained that punitive damages are a remedy, not a
cause of action.   See Fouts v. Breezy Point Condo. Ass'n, 2014
WI App 77, ¶23 n.2, 355 Wis. 2d 487, 851 N.W.2d 845 ("We observe
that Fouts' complaint incorrectly frames his request for
punitive damages as a separate cause of action."); Hansen v.
Texas Roadhouse, Inc., 2013 WI App 2, ¶21, 345 Wis. 2d 669, 827
N.W.2d 99 ("Punitive damages are a remedy, not a cause of
action."). Even prior to the creation of § 895.043, this court
emphasized that punitive damages were a remedy and not a cause
                                                     (continued)
                               10
                                                                               No.   2017AP170.akz


     ¶57       Turning to the case at hand, the majority correctly
concludes      that     the complaint         fails   to state a                claim    against
Stevens       because    the     only     remaining       claim      against          her——here,
unjust enrichment——was dismissed.                  Since no claim exists against
Stevens, the imposition of a remedy, a constructive trust, is
not allowable under the law.                  Tikalsky does not argue that the
complaint otherwise states an alternative cause of action not
specifically pled.            As a result, a constructive trust cannot be
imposed       with    respect     to     Stevens.         Therefore,            the    court     of

appeals    was       incorrect      to   conclude     that      a    constructive           trust
could    be    sought       against      Stevens    without         the    existence        of    a
viable cause of action against her.
     ¶58       While    I    join     the    majority,      I   write           separately       to
highlight       the     distinction         between   a    cause          of     action——here,
unjust enrichment——and the remedy sought——here, a constructive
trust.
     ¶59       For the foregoing reasons, I respectfully concur.




of action.     In Brown v. Maxey, 124 Wis. 2d 426, 431, 369
N.W.2d 677 (1985), this court stated "that the availability of a
punitive damage award is not dependent upon the classification
of the underlying cause of action, but, rather, upon proof of
the requisite 'outrageous' conduct" (footnote omitted).     This
court further "stress[ed] that punitive damages are in the
nature of a remedy and should not be confused with the concept
of a cause of action." Id.


                                              11
                                                                              No.   2017AP170.pdr


       ¶60    PATIENCE DRAKE ROGGENSACK, C.J.                        (dissenting).              The
question presented is whether Terry Stevens (Terry), one of four
children of Donald and Betty Lou Tikalsky, is properly joined in
this action to recover property from her that she received from
her parents through what is alleged to be tortious conduct by
Susan Friedman (Susan) and James Tikalsky (James), two other
children      of       Donald    and    Betty      Lou.     Because       I    conclude     that
J. Steven Tikalsky (Steven) has made a sufficient claim against
Terry,      which       if     proved     would        warrant   the      imposition       of     a

constructive trust on some of the property she received from the
estate of Donald and Betty Lou, for which claim Terry did not
make an evidentiary, prima facie case for dismissal, and for
which Steven provided sufficient evidentiary support to create
material issues of fact, I would affirm the court of appeals'
reversal          of    the     circuit       court's      summary     judgment,         and      I
respectfully dissent from the majority opinion.
                                        I.    BACKGROUND1

       ¶61    The majority opinion ably sets forth the circumstances
from which Steven's claims arise; therefore, I will relate here
only       what    is    necessary           for   the    reader     to       understand        the
following discussion.                  In 1999, Donald and Betty Lou's estate
planning documents divided their property equally among their
four children.                In 2007, Donald and Betty Lou revised those
documents specifically to exclude Steven and Steven's children
from   any inheritance.                 Although some of           the     estate planning

       1
       The factual assertions that follow are either uncontested
facts or shown as allegations from Steven's complaint.


                                                   1
                                                                            No.   2017AP170.pdr


documents      were   revised        in     2008      and    2009,    they    continued     to
exclude Steven and his children from any inheritance from Donald
and Betty Lou.
     ¶62    Donald died in 2009, five months after he and Betty
Lou made the final revision to their estate plan.                                  It is the
difference in Steven's inheritance in Donald and Betty Lou's
1999 estate plan and the estate plan finalized in 2009 that
Steven     alleges       was   caused           by    Susan's    and     James'      tortious
influence of his parents' decision making.

     ¶63    Betty Lou died in 2014, and in 2015, Steven filed the
action now before us.            Steven alleged, among other claims, that
Susan    and     James    intentionally              exerted    undue       influence     over
Donald     and     Betty       Lou        and     interfered         with    his     expected
inheritance by arranging the preparation and execution of his
parents' wills and the changes to their trust documents that
excluded Steven and his children.                         The complaint also alleged a
claim for unjust enrichment against Terry.2                           Steven voluntarily

dismissed      that   claim,         so    it        is   not   before      us.      However,
dismissal of the unjust enrichment claim did not dismiss the
factual allegations that preceded or followed that label as they


     2 The elements of unjust enrichment are: (1) a benefit
conferred on the defendant by the plaintiff; (2) knowledge by
the defendant of the benefit; and (3) acceptance and retention
of the benefits by the defendant under circumstances making it
inequitable to do so. Puttkammer v. Minth, 83 Wis. 2d 686, 688-
89, 266 N.W.2d 361 (1978).   The benefit that Terry retains was
not conferred by Steven, but by her parents; therefore,
dismissal of the claim for unjust enrichment was reasonable.
See also Estate of Lade v. Ketter, 82 Wis. 2d 80, 85, 260 N.W.2d
665 (1978).


                                                 2
                                                                    No.   2017AP170.pdr


were incorporated by reference into subsequent portions of the
complaint.
     ¶64       Furthermore,      the    allegations         in      the     complaint
incorporate Terry as participating in rewards from Susan's and
James' allegedly tortious conduct.                 For example, the complaint
alleges that "[b]ut not for Susan and James' conduct described
above, Donald and Betty Lou would have left a legacy to Steven
equal to that of the legacy left to each of their other three
issue."3       The complaint goes on to state that "Susan and James'

false and fraudulent representations and conduct described above
resulted    in a benefit        being conferred           upon   Susan, James      and
Terry by making them each one-third beneficiaries of Donald and
Betty      Lou's    joint      estate    plan       rather       than      one-fourth
beneficiaries along with Steven."4                 The complaint alleges that
Terry    was    aware    of   Susan's   and   James'      conduct    and    that   she
benefitted from it.           For example, the complaint states, "Susan,
James    and     Terry   had    knowledge     of    and    appreciation       of   the

benefit;"5 and "Susan, James and Terry accepted and retained the
benefit under circumstances that make it inequitable for them to
retain the benefit."6
     ¶65       The complaint also alleges that by retaining a one-
third interest in her parents' estate, Terry was a participant

     3   Complaint, ¶123.
     4   Complaint, ¶133.
     5   Complaint, ¶134.
     6   Complaint, ¶135.


                                         3
                                                                   No.    2017AP170.pdr


along with Susan and James in converting property to their own
use that Steven claims should have been his.                         The complaint
alleges that "[t]he funds that constituted a one-quarter share
in Donald and Betty Lou's joint estate plan and were converted[7]
from       Steven   to   the   defendants   were       at   all   times    after   the
conversion       held    by    the   defendants   in    constructive       trust   for
Steven."8
       ¶66     Steven prayed for relief that included a declaration
that all estate planning documents executed in 2009 are invalid;

that       assets   of   his   parents'   estate   be       returned,     except   for
payment of debt, taxes and administrative expenses; that trust
property be returned pursuant to Wis. Stat. § 701.0604 (2017-
18);9 and a judgment issued against Susan, James and Terry in an
amount to be determined at trial that is sufficient to award him
a one-quarter interest in his parents' estate.
       ¶67     The circuit court granted summary judgment on Steven's
claim of undue influence10 and his request for a constructive

       7
       Black's Law Dictionary defines "conversion" as "[t]he
wrongful possession or disposition of another's property as if
it were one's own." Black's Law Dictionary, 381 (9th ed. 2009).
It is in that form that "conversion" is alleged against Terry in
Steven's complaint.
       8    Complaint, ¶143.
       9
       All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
       10
       Whether the claim for undue influence (Steven's second
claim) was properly dismissed is not before us.   The dismissal
was not a final judgment with regard to Susan and James or
Steven; therefore, Steven had no right to appeal its dismissal,
and he could not bring it to us.     Wis. Stat. § 808.03.   The
majority opinion errs when it relies on Steven's not appealing
                                                    (continued)
                               4
                                                                         No.    2017AP170.pdr


trust.      The circuit court also dismissed Terry from the lawsuit,
with prejudice.             The court of appeals reversed, concluding that
Steven had made sufficient allegations, which had not been set
aside by Terry, to permit the remedy of constructive trust to be
applied      against        property    held       by   Susan,   James    and       Terry   if
Steven prevailed at trial.11
                                     II.   DISCUSSION
      ¶68        The   majority     opinion        gets    mired   down        in   deciding
whether constructive trust is a claim or a remedy.                             It concludes

that constructive trust is a remedy, a conclusion with which I
agree.      However, that determination is not the question on which
the     outcome        of    Steven's      allegations       against       Terry       turns.
Rather, a constructive trust is an appropriate remedy if Susan,
James      and    Terry     have    converted       property     obtained       from    their
parents' estate that would have been devised to Steven but for
wrongful influence over Donald and Betty Lou.
                               A.    Standard of Review

      ¶69        Steven seeks the equitable remedy of a constructive
trust.       Whether to impose a constructive trust is a two-step
process.         Sulzer v. Diedrich, 2003 WI 90, ¶16, 263 Wis. 2d 496,

664 N.W.2d 641.              In the first step, we independently review




the dismissal of his claim for undue influence and states that
the "only remaining cause of action" is the claim of intentional
interference with expected inheritance. Majority op., ¶29.
      11
       Tikalsky v. Stevens, No. 2017AP170, ¶16, unpublished slip
op. (Wis. Ct. App. May 30, 2018).


                                               5
                                                                               No.       2017AP170.pdr


whether a constructive trust could be imposed on property of the
defendants.         Id.

       ¶70    We     also    independently            review   the      court        of     appeals'
reversal      of     the    circuit       court's       summary      judgment             dismissing
Terry,       while    benefitting         from        discussions         of       the     court    of
appeals and the circuit court.                         Hoida, Inc. v. M&I Midstate
Bank, 2006 WI 69, ¶15, 291 Wis. 2d 283, 717 N.W.2d 17.
                                  B.    Constructive Trust
       ¶71    A constructive trust could be imposed if Steven proves

that   the     wrongful          influences      of    Susan     and      James          caused    the
division of his parents' estate into three, rather than four
shares and that Susan, James and Terry each received property
that they converted to their own use that in equity should have
been devised to him.               Wilharms v. Wilharms, 93 Wis. 2d 671, 678-

79, 287 N.W.2d 779 (1980).
       ¶72    A constructive trust is an equitable remedy that a
court may impose to prevent the retention of property that was

obtained       by     fraud        or    by     the      abuse       of        a     confidential
relationship.         Ross v. Specialty Risk Consultants, Inc., 2000 WI
App    258,    ¶13,        240    Wis. 2d       23,    621     N.W.2d      669.             "In    the
constructive         trust       case,    the    defendant        has      legal          rights    in
something that in good conscience belongs to the plaintiff."
Id., ¶14 (citing 1 Dan B. Dobbs, Law of Remedies § 4.3(1), at
587-88 (2d ed. 1993)).                   "It is not necessary that the person
against whom the constructive trust is to be imposed be the
wrongdoer or know of wrongdoing initially."                               Ross, 240 Wis. 2d
23, ¶15.       Rather, a constructive trust will in equity follow the

                                                 6
                                                                No.    2017AP170.pdr


property or the proceeds from the property that was obtained by
wrongful means.        Id., ¶16.

      ¶73     The   complaint       alleges     that     "[t]he       funds      that
constituted a one-quarter share in Donald and Betty Lou's joint
estate plan and were converted from Steven to the defendants
were at all times after the conversion held by the defendants in
constructive trust for Steven."12             "[A] complaint states a claim
in conversion when it alleges that the plaintiff is 'entitled to
immediate possession' of a 'chattel' over which the defendant

had wrongfully retained dominion or control."                   Methodist Manor

of Waukesha, Inc. v. Martin, 2002 WI App 130, ¶7, 255 Wis. 2d
707, 647 N.W.2d 409.         "An action for conversion is bottomed upon
a tortious interference with possessory rights."                Id.
      ¶74     Steven alleges that the wrongful conduct of Susan and
James resulted in invalid estate planning documents for Donald
and   Betty Lou, thereby        permitting      Susan,      James   and    Terry   to
convert     to   their own    use    property, which absent Susan's and

James'      wrongful    conduct,     would    have   been    his.         If   Steven
prevails at trial, a constructive trust is an appropriate remedy
to impose on property that Terry possessed and converted to her
own use, just as it is for property Susan and James possessed
and converted.         Furthermore, even though imposing a constructive
trust      on property held     by    an innocent recipient           may      require
"[a]dditional factors," abuse of a confidential relationship is
such a factor.           Prince v. Bryant, 87 Wis. 2d 662, 667, 275


      12   Complaint, ¶143.


                                         7
                                                                        No.    2017AP170.pdr


N.W.2d       676    (1979).       Steven     alleges      abuse    of         parent-child
relationships, certainly they are confidential relationships.
                               C.    Summary Judgment
       ¶75     Terry was granted summary judgment of dismissal, with
prejudice, which the court of appeals reversed.                         When reviewing
summary judgment, Wis. Stat. § 802.08(2) is our guide.                            We apply
the same methodology as the circuit court and court of appeals.
Linden v. Cascade Stone Co., Inc., 2005 WI 113, ¶5, 283 Wis. 2d

606,     699    N.W.2d     189.       We   first       examine    the     complaint       to

determine whether it states a claim, and then we review the
answer to determine whether it joins a material issue of fact or
law.     Ande v. Rock, 2002 WI App 136, ¶8, 256 Wis. 2d 365, 647

N.W.2d 265.          The label of a claim is not determinative; it is
the factual allegations that drive whether the complaint states
a claim for relief.           Strid v. Converse, 111 Wis. 2d 418, 422-23,
331 N.W.2d 350 (1983).              If the complaint and answer join issue,
we     examine      the    moving      party's     evidentiary      submissions           to

determine whether they establish a prima facie case for summary
judgment on some or all of the issues joined by answer.                                 Ande,
256 Wis. 2d 365, ¶8.              If they do, we consider the evidentiary
submissions         in    opposition    to     summary    judgment        to     determine
whether there are issues of material fact that require a trial.
Hoida, 291 Wis. 2d 283, ¶15.                 Summary judgment is appropriate
only when there are no issues of material fact.                               Linden, 283
Wis. 2d 606, ¶5.
       ¶76     In   the    matter     before     us,    the   allegations          in    the
complaint state a claim for wrongful possession and conversion

                                             8
                                                                         No.   2017AP170.pdr


of property by Terry on which relief can be granted, and the
answers join issues of fact and of law.                        Methodist Manor, 255

Wis. 2d 707, ¶7.           I do not discuss all the claims because only
Terry has been dismissed from the lawsuit.
       ¶77     Steven's claims against Terry are that she obtained
possession of property from Donald and Betty Lou, some of which
should have belonged to him, and thereby benefitted from the
tortious      acts of Susan         and    James.        Stated   otherwise,        Steven
claims Terry converted property to her own use that should have

been devised to him.            Although Steven's allegations could have
been more particularized, they give fair notice of the gravamen
of his claims against Terry.               As we have explained in regard to
wrongful       conversion,     "[t]he      gravamen       of   the       action    is     the

wrongful       conversion,     to    which       the    possession        is    matter     of
inducement.        The action does not rest upon the fraudulent nature
of the possession, but upon the subsequent tortious conversion."
Kalckhoff v. Zoehrlaut, 40 Wis. 427, 430-31 (1876).                             Therefore,

if    one    is   in   possession    of    property       which     in    equity    should
belong to another and the possessor puts that property to his or
her own use, the possessor has converted property of another.
Id.
       ¶78     Although Terry's answer denies the factual allegations
and    legal      claims    made    in    Steven's      complaint,        she     makes   no
evidentiary offer of proof by affidavit or otherwise sufficient
to    show    a   prima    facie    case    for     summary    judgment         dismissing
Steven's       claim      against    her     for       possession        and    subsequent



                                             9
                                                        No.    2017AP170.pdr


conversion   of   property   that   should   have   belonged    to   him.13
Therefore, she has made no evidentiary showing that if Steven is
able to prove the factual allegations in his complaint, that a
constructive trust is not an equitable remedy that should attach
to some of the property she received from Donald and Betty Lou.
Wilharms, 93 Wis. 2d at 678-79.

     ¶79   One also could argue that Terry is an indispensable
party to this action pursuant to Wis. Stat. § 803.03(1)(b).14            To
explain further, Terry was dismissed with prejudice.           Therefore,

if that judgment stands and Steven prevails at trial, the court
may be without power to affect the property Terry received from
her parents; and therefore, Susan's and James' property will be
subject to recovery for the full amount of Steven's one-third
share, while Terry's property will not be affected by the final


     13The majority opinion mistakenly concludes that "Steven
voluntarily dismissed" his allegations of wrongful possession
that led to conversion of the property.     Majority op., ¶35.
That never happened. Steven's dismissal of his claim of unjust
enrichment against Terry does not negate all the factual
allegations in the complaint or the affidavits that Steven
submitted in opposition to Susan's, James' and Terry's motions
for summary judgment.
     14Wisconsin Stat. § 803.03(1)(b)2. provides: "PERSONS TO
BE JOINED IF FEASIBLE.    A person who is subject to service of
process shall be joined as a party in the action if: . . . .

     (b) The person claims an interest relating to the subject
of the action and is so situated that the disposition of the
action in the person's absence may: . . . .

     2. Leave any of the persons already parties subject to a
substantial risk of incurring double, multiple or otherwise
inconsistent obligations by reason of his or her claimed
interest.


                                    10
                                                            No.   2017AP170.pdr


judgment     on     Steven's     claims.15       No     party     has   raised
§ 803.03(1)(b)2. so I go no further with it except to note its
interest.
    ¶80     The majority opinion errs because it does not complete
the requisite analysis for summary judgment, and in so doing
repeats    the    error   of   the   circuit   court.     For   example,   the
majority opinion relies on a circuit court's finding of fact
that "the defendants had nothing to do with the 'orchestration
and preparation' of the Tikalskys' estate planning documents."16

That factual determination was erroneously made on a motion for
summary judgment.         Summary judgment is appropriate only when
there are no disputes of material fact.                 Linden, 283 Wis. 2d

606, ¶5.     All one has to do is review the record to learn that
Steven had a story to tell that is the opposite of what his
sisters and brother told.            See Affidavit of J. Steven Tikalsky
(R. 47);17 Affidavit of John R. Pankraz (R 40);18 Affidavit of

    15 All three defendants are represented by the same attorney
in this matter.   Therefore, if counsel were to prevail on his
arguments in favor of Terry and lose at trial, Susan and James
could be adversely affected by his representation of Terry.
    16    Majority op., ¶29 n.21.
    17 Steven's affidavit sets out a significant adult sibling
rivalry imposed during the course of Donald's cognitive decline,
including specific acts by Terry that fed into family discord
when Donald and Betty Lou were no longer well equipped to
address it.    He describes repeated acts of his siblings to
preclude his access to both Donald and Betty Lou. R. 47.
    18 John R. Pankraz averred that in 2006, it was apparent to
him that Donald had suffered a "significant cognitive decline."
R. 40, ¶8. He said, "Don Tikalsky then stated 'the kids want me
to sue Steven.'      The 'kids' referred to Steven Tikalsky's
siblings, Terry, Jim and Susan." R. 40, ¶11.

                                       11
                                                                 No.    2017AP170.pdr


E. John Raasch (R. 39).19         Summary judgment is not a trial by
affidavit, but that is what occurred at the circuit court.
     ¶81       The court of appeals correctly overturned the circuit
court's    summary    judgment   dismissing       Terry   from    this     lawsuit.
Steven's allegations are sufficient to give fair notice of his
claims against Terry and any evidentiary showing that supports
her position is controverted by the evidentiary showing Steven
made.     Terry should proceed to trial along with Susan and James.
                              III.    CONCLUSION

     ¶82       Because I conclude that Steven has made a sufficient
claim     against    Terry,   which    if    proved       would        warrant   the
imposition of a constructive trust on some of the property she
received from the estate of Donald and Betty Lou, for which
claim Terry did not make an evidentiary prima facie case for
dismissal, and for which Steven provided sufficient evidentiary
support to create material issues of fact, I would affirm the
court     of   appeals'   reversal    of    the    circuit   court's        summary

judgment, and I respectfully dissent from the majority opinion.




     19E. John Raash avers that Steven and his father had a
strong relationship for many years that began to falter after
Donald retired and his mental health declined. R. 39.


                                       12
                                                                            No.    2017AP170.awb


       ¶83       ANN WALSH BRADLEY, J.                 (dissenting).        I agree in part
with Chief Justice Roggensack's dissent.                             Specifically, I agree
that       a     constructive         trust       is     a     remedy,      but    that    this
determination is not the question on which this case turns.                                  See

Chief Justice Roggensack's dissent, ¶68.                             I further agree that
Steven         may   continue    to    pursue          the    remedy   of    a    constructive
trust.1          However,    I   do     not       join       Chief   Justice      Roggensack's
dissent         because,    like      the     majority         opinion,     it     appears    to
conflate         the   imposition       of    a       constructive       trust     on   Terry's

property with a claim against Terry herself.2

       1
       As the majority opinion does, I refer to the members of
the Tikalsky family by their first names for the sake of
clarity. See majority op., ¶2.
       2
       For example, Chief Justice Roggensack's dissent indicates
that Steven has claims against Terry that remain. Specifically,
the dissent states, "Steven claims Terry converted property to
her own use that should have been devised to him.       Although
Steven's allegations could have been more particularized, they
give fair notice of the gravamen of his claims against Terry."
Chief Justice Roggensack's dissent, ¶77; see also id., ¶76 ("In
the matter before us, the allegations in the complaint states a
claim for wrongful possession and conversion of property by
Terry . . . .").    Contrary to this assertion, no causes of
action against Terry remain. What remains is the request for a
constructive trust on Terry's property——not a claim against
Terry as a party.

     Similarly, the majority tethers the imposition of a
constructive trust over property in Terry's possession to the
existence of a cause of action against Terry herself.       See
majority op., ¶¶39-40. Such a connection is not required by our
case law.   See Wilharms v. Wilharms, 93 Wis. 2d 671, 679, 287
N.W.2d 779 (1980) ("It is not necessary that the person against
whom the constructive trust is to be imposed be a wrongdoer or
know of the wrongdoing initially.     If the other elements for
imposing a constructive trust have been satisfied, and the
holder of the legal title is not a bona fide purchaser, a
constructive trust may be imposed.").


                                                  1
                                                                       No.    2017AP170.awb


       ¶84    Rather      than    focusing       on   any    alleged    conversion         on
Terry's part, I would follow the approach taken by the court of
appeals.         That is, because the surviving cause of action for
intentional        interference        with       expected        inheritance         "would
establish        both    elements    necessary        for    a    constructive        trust,
these elements remain for further adjudication."                             Tikalsky v.

Stevens, No. 2017AP170, unpublished slip op., ¶16 (Wis. Ct. App.
May 30, 2018).3
       ¶85    A constructive trust is an equitable device that will

be imposed in limited circumstances only.                        Wilharms v. Wilharms,

93    Wis. 2d 671, 678-79, 287             N.W.2d 779 (1980).                In    order   to
impose a constructive trust, two elements must be fulfilled.
First, "[t]he legal title must be held by someone who in equity
and    good      conscience       should   not        be    entitled    to        beneficial
enjoyment."        Id. at 679.        Second, "[t]itle must also have been
obtained by means of actual or constructive fraud, duress, abuse
of a confidential relationship, mistake, commission of a wrong,

or    by   any    form    of     unconscionable        conduct."       Id.        (citations
omitted).
       ¶86    As the court of appeals determined, "[w]ith respect to
the first element of a constructive trust, Steven's allegations
and supporting evidence raise material facts tending to show

       3
       Unlike the court of appeals, which utilized the cause of
action for intentional interference with expected inheritance
against Susan and James as a pathway to a constructive trust,
Chief    Justice  Roggensack's   dissent  bases   a   potential
constructive trust on "a claim for wrongful possession and
conversion of property by Terry . . . ."     See Chief Justice
Roggensack's dissent, ¶76.


                                             2
                                                                      No.    2017AP170.awb


that his siblings hold title to property that equity dictates
should go to him."               Tikalsky, No. 2017AP170, unpublished slip

op.,   ¶14.       "If        proven,   this     claim    would    establish       that all
three siblings (including Terry) were unjustly enriched by an
inheritance that would have gone——at least in part——to Steven."
Id.    I agree.
       ¶87    Likewise,         sufficient        allegations      are      stated    with
respect to the second element of a constructive trust.                                 The
court of appeals explained:

       As   to  the   second   element,   Steven's   claim   for
       intentional interference is sufficient to potentially
       establish that title to the inheritance was "obtained
       by means of actual or constructive fraud, duress,
       abuse   of   a   confidential   relationship,    mistake,
       commission   of   a   wrong,   or    by  any    form   of
       unconscionable conduct."    As the circuit court noted,
       part of Steven's claim for intentional interference
       was that Susan and James made false statements and
       "innuendos" to Donald and Betty in an attempt to get
       the parents to disinherit Steven.
Id., ¶15.      Similarly, I agree.
       ¶88    The fact that Terry is not alleged to have committed
any misconduct is irrelevant:                     "It is not necessary that the
person against whom the constructive trust is to be imposed be a
wrongdoer or know of the wrongdoing initially.                             If the other
elements for imposing a constructive trust have been satisfied,
and the holder of the legal title is not a bona fide purchaser,
a constructive trust may be imposed."                        Wilharms, 93 Wis. 2d at
679.     Thus,      a    constructive      trust       may   be   imposed    on    Terry's
property     even       if    there    remain     no   active     claims    against    her
personally.


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        ¶89   Accordingly, I agree with the court of appeals that
"[b]ecause        Steven's         claim    for       intentional       interference       would
establish      both      elements      necessary          for    a     constructive     trust,
these elements remain for further adjudication."                               Tikalsky, No.

2017AP170, unpublished slip op., ¶16.                            It correctly observed
that Steven may continue to seek a constructive trust against
Terry's property if he is able to establish two elements:                                    (1)
"that she holds property that 'in equity and good conscience
[she]    should        not    be    entitled       to,'"      and    (2)     "title   to   that

property was 'obtained by means of actual or constructive fraud,
duress,       abuse          of    a   confidential             relationship,         mistake,
commission        of    a     wrong,       or     by    any     form    of    unconscionable
conduct.'"        Id. (citing Wilharms, 93 Wis. 2d at 678-79).

        ¶90   For the reasons stated above, I respectfully dissent.
        ¶91   I    am    authorized         to    state       that     Justice     SHIRLEY   S.
ABRAHAMSON joins this dissent.




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