2009 WI App 55
court of appeals of
published opinion
Case No.: |
2008AP2166 |
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Complete Title of Case: |
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Daniel Buckett,
Plaintiff-Appellant, v. Glenn Jante and Elsie Jante,
Defendants-Respondents, State of Defendant. |
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Opinion Filed: |
March 4, 2009 |
Submitted on Briefs: |
February 25, 2009 |
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JUDGES: |
Brown, C.J., |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Christopher A. Geary of Hostak, |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was
submitted on the brief of Peter J. Ludwig of |
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2009 WI App 55
COURT OF APPEALS DECISION DATED AND FILED March 4, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Daniel Buckett,
Plaintiff-Appellant, v. Glenn Jante and Elsie Jante,
Defendants-Respondents, State of Defendant. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J.,
¶1 BROWN, C.J. Daniel Buckett paid the property taxes on a portion of his neighbors’ property for over twenty-five years, but neither he nor his neighbors, Glenn and Elsie Jante, knew it. It was not until the Wisconsin Department of Transportation condemned the parcel and paid the Jantes $63,000 that both parties found out. Buckett wanted to be paid back, so he sued, inter alia, for a portion of the condemnation sale price on the theory of unjust enrichment. The circuit court held that unjust enrichment was unavailable because the Jantes did not have “knowledge or appreciation” that Buckett was paying their taxes contemporaneous with Buckett’s tax payments. The law is, however, that when the benefit conferred can be easily returned, like money for example, the benefited party need not have knowledge or appreciation of the gain at the precise time it is conferred. Instead, the party asserting an unjust enrichment claim satisfies the knowledge or appreciation element by proving that the benefited party had knowledge of or appreciated the benefit at a time which provided the party a fair opportunity to choose whether to accept or reject that benefit. So, we disagree with the circuit court on the law. Because the parties dispute the amount of taxes each party paid, we reverse and remand with directions that the trial court determine the amount that the Jantes were unjustly enriched.
BACKGROUND
¶2 In the late 1960’s
¶3 From at least the 1970’s on,
¶4 Glenn Jante, however, had purchased this parcel as part of a larger section of property from his mother’s estate in 1991. He had farmed the property for his entire life, though after the road spliced the two-acre parcel off, he stopped farming that part. The parties no longer dispute that the Jantes were the true owners of the parcel.
¶5 In 2005, the Wisconsin Department of Transportation sought to
condemn and purchase the parcel through an eminent domain proceeding for
another road construction project.
Initially, the DOT looked at
¶6 Sometime around 2005, Buckett approached Glenn Jante about
the taxes he had paid on the parcel.
They spoke on the phone and in person at one point, but they did not
resolve the matter. When Buckett asked
the Jantes to reimburse him for the taxes he paid on the parcel, the Jantes
refused. It was during these discussions
that the Jantes initially learned Buckett had been paying taxes on the
parcel. The Jantes claimed that they
also paid property taxes on the parcel because
¶7 The Jantes refused to reimburse Buckett for back taxes and Buckett sued. The circuit court ruled for the Jantes on the parties’ cross motions for summary judgment.[1] It held that Buckett had not provided sufficient facts to meet the elements of unjust enrichment. Buckett appeals, again maintaining that the Jantes were unjustly enriched because he had paid taxes on the parcel since 1981. We will provide additional facts as needed.
DISCUSSION
Standard
of Review
¶8 We review a motion for summary judgment de novo, applying the
same standard as the circuit court. Green
Spring Farms v. Kersten, 136
¶9 A circuit court’s decision whether to grant or deny equitable
relief in an action for unjust enrichment is discretionary. Ulrich v. Zemke, 2002 WI App 246,
¶8, 258
Failure to State a Claim
¶10 We begin with an examination of the pleadings to determine
whether Buckett stated a claim for relief.
To establish a claim for unjust enrichment, the plaintiff must prove
three elements: (1) the plaintiff
conferred a benefit upon the defendant; (2) the defendant had an appreciation
or knowledge of the benefit; and (3) the defendant accepted or retained the
benefit under circumstances making it inequitable for the defendant to retain
the benefit without payment of its value.
S & M Rotogravure Serv., Inc. v. Baer, 77
1. Elements One and Three (Conferring a Benefit
and Acceptance and Retention of the Benefit)
¶11 The first reason why the circuit court granted summary judgment for the Jantes is because, in its opinion, “nothing in [the final] complaint … describes the property that the state ultimately bought.” The circuit court concluded that Buckett included the wrong legal description in his second amended complaint (the final complaint). And the DOT never purchased the parcel in this description, so Buckett’s tax payments did not confer a benefit on the Jantes. Therefore, it ruled that Buckett failed to state a claim.
¶12 Neither party disputes that Buckett provided the wrong legal
description in his final complaint.[3] Regardless, though, Buckett did correctly
describe the parcel by address, in a narrative form, and by reference to the parcel
identification number that
2. Element Two (Appreciation and Knowledge of
the Benefit)
¶13 The circuit court also granted summary judgment because Buckett could not prove that the Jantes appreciated or knew about Buckett’s tax payments contemporaneous with Buckett’s actual payment. The Jantes and the circuit court believed that element two comes with a bright-line rule that when the benefited party receives a benefit but is “unaware of that benefit until after it had been done, [it] was not unjust for [the benefited party] to keep the [benefit].”[4] Since the Jantes did not have knowledge of the benefit at the precise time that Buckett conferred the benefit, the circuit court held that Buckett could not prove element two.
¶14 We agree that Buckett cannot prove the Jantes had knowledge or
appreciation of Buckett’s tax payments at the precise time he made them. But, element two does not state that the
benefit must be contemporaneous with the knowledge or appreciation. Instead, element two of an unjust enrichment
claim is “an appreciation or knowledge by the defendant of the benefit.” S & M Rotogravure Serv., Inc.,
77
¶15 Our review of Wisconsin case law reveals that Nelson
v. Preston, 262
[T]he essential elements of quasi contract entitling one to judgment for unjust enrichment are:
1. A benefit conferred upon the defendant by the plaintiff;
2. Appreciation by the defendant of the fact of such benefit;
3. Acceptance and retention by the defendant of such benefit, under circumstances such that it would be inequitable to retain the benefit without payment of the value thereof.
¶16 Nelson cited Dunnebacke Co. v. Pittman, 216
¶17 The Dunnebacke court also explained that the choice need not happen
contemporaneously with the conferral of the benefit. If the benefited party does not have
contemporaneous knowledge, the plaintiff may still be able to establish a
factual basis for recovery if subsequent conduct evinces an attempt to accept
the benefits.
¶18 As it happens, the available literature considers mistakenly
paying someone else’s taxes to be a prime example of a factual basis where the
benefited party can return the benefit well after it is conferred. The fungible nature of a tax payment means
that the benefited party can easily return the benefit at any time because,
upon learning of the payment later on, the benefited party can simply repay the
plaintiff or the plaintiff can place a lien on the benefited party’s property
in the amount of the tax payment. See Central
Wis. Trust Co. v. Swenson, 222
The case in our opinion clearly falls within section 38 (1) of the American Law Institute’s “Restatement of Restitution and Unjust Enrichment” (Tent. Draft No. 1), which reads:
“§ 38. Performance of another’s duty or discharge of lien against another’s property. (1) A person who, by payment to a third person, has discharged the duty of another or has released another’s property from an adverse interest, doing so unintentionally or acting because of an erroneous belief induced by a mistake of fact that he [or she] is thereby discharging a duty of his [or her] own or releasing property of his [or her] own from a lien, is entitled to restitution from such other of the value of the benefit conferred up to the value of what is given, unless the other disclaims the transaction.”
¶19 The Restatement (Third)
of Restitution & Unjust Enrichment § 7(1) (Tentative Draft No. 1,
2001) similarly explains that
“[r]estitution for the mistaken performance of another’s obligation is readily
available where the performance consists of payment of a money debt. If liability in restitution merely
substitutes one creditor for another, the restitution defendant is not
substantially prejudiced by the claimant’s mistaken intervention.…” The Restatement
continues, explaining that “[m]istaken payment of another’s debt may have the
effect of discharging a lien on the other’s property, in which case the payor
may seek to be subrogated to the discharged lien. The standard example involves mistaken
payment of taxes on another’s property.”
¶20 Both the Restatement
and Central
Wisconsin Trust Co. provide illustrations directly on point. Illustration
one of the Restatement states: “[b]y a mistake of the tax authority, and
unknown to either taxpayer, A’s real property is assessed for improvements
located on the property of B. A pays the
tax bill in the belief that the property has been correctly assessed. A has a claim in restitution against B to
recover taxes paid in respect of B’s property.”
¶21 We thus conclude that when a party mistakenly confers a monetary benefit, or other easily returnable benefit, on another, that party is entitled to restitution from the benefited party who, upon learning of the mistaken payment, refuses to repay the money. Buckett’s claim that his inadvertent tax payments unjustly enriched the Jantes is therefore viable. Buckett had demanded repayment from the Jantes, giving them knowledge of the benefit, and which demand the Jantes refused. Therefore, unless there has been a double payment of taxes, an issue we will get to in a moment, the Jantes have accepted, retained and appreciated the tax payments, and the retention of those benefits without payment to Buckett is inequitable. Buckett sufficiently pled a claim of unjust enrichment.
Genuine Issue of Material Fact
¶22 The next step in our summary judgment review is to determine
whether any genuine issue of material fact exists which would preclude summary
judgment. Gouger v. Hardtke, 167
¶23 The Jantes raise two factual issues related to the amount they
actually benefited from Buckett’s payments.
First, they claim that
1. Double Taxation
¶24 The Jantes first dispute whether they received any benefit at
all from Buckett’s tax payments because
¶25 This is a genuine issue of material fact because if
2. Improper Tax Assessment
¶26 Still to be determined is the length and breadth of our
remand. The Jantes claim that there is
another genuine issue of material fact to resolve even if no double taxation
occurred. The Jantes believe that
¶27 The theory behind the Jantes’ argument is this: The tax bill
¶28 The Jantes then allege that because it is undisputed that the
assessment was wrong in that it included improvements that were not there, and
because it included improvements that were Buckett’s responsibility to pay, the
Jantes claim that Buckett must prove the following question to establish the
benefit they received: “[W]hat should
the assessment value for this thin, road-side, non-buildable parcel be?” In other words, to prove damages, the Jantes
claim that Buckett must prove the amount that
¶29 The problem with the Jantes’ theory is that it is all
theory. It is all allegation,
speculation, and conjecture. Yes, there
is proof in the record that the tax bill included a tax for improvements, but
there is absolutely no proof in the record that
¶30 Here, Buckett provided facts showing that he paid the taxes. He knew that the tax bill added improvements that were not there and so his claim is just for the taxes he paid on the land itself. This evidence is taken as true if not contradicted by opposing affidavits or proof. The Jantes’ theory of over-taxation was a challenge to Buckett’s summary judgment motion. If the Jantes were to defeat summary judgment using this theory, they would have had to bring facts to the circuit court’s attention that the taxes Buckett paid were based on an over-evaluation of the land’s worth. They failed to do so. See Moulas, 213 Wis. 2d at 410-11 (once a motion for summary judgment is made and properly supported, the opposing party must advance specific facts showing the presence of a genuine issue for trial, and does not have the luxury of resting upon its mere allegations or denials of the pleadings).
¶31 There is no such proof.
There is no affidavit or deposition from
¶32 Hence, only the double taxation issue—where the Jantes did present sufficient evidence to
defeat Buckett’s summary judgment motion—is available as the Jantes’ defense to
Buckett’s claim. At bottom, what we have
here is essentially a claim that the Jantes are “free riders,” to use the law
and economics term, and that they rode at Buckett’s expense. Whether the Jantes are free riders depends on
how the double taxation issue comes out.
Summary judgment is thus precluded, and we remand with instructions that
the trial court determine if
By the Court.—Order reversed and cause remanded with directions.
[1] Buckett
also named the State of
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] According to Buckett, the legal description in his second amended complaint came from an early DOT offer. After the DOT concluded that the Jantes owned the parcel, the DOT switched its legal description to that on the Jantes’ recorded deed. And after the DOT purchased the property they used yet another legal description.
[4] The circuit court offered the following example of when the knowledge or appreciation must be contemporaneous with the conferral of the benefit:
The lawn care service came and spread fertilizer on my property, stuck the bill in the door, but I had never ordered from them the fertilizer. It was intended for my neighbor. In fact, the bill they stuck in my door was for one of the neighbors, so I called them and said I never ordered this, and they indicated that I wouldn’t have to pay for it and enjoy my lush green lawn for the summer. Now, I got a benefit, but I was unaware of that benefit until after it had been done, and therefore [it] was not unjust for me to keep the fertilizer on my grass.
If, on the other hand, I had been home when [the lawn care service] pulled up in their truck and the guy jumps out with his sprayer and starts spraying and I say nothing, knowing that I have not ordered this service, then [the lawn care service] could pursue me to recover for unjust enrichment when I knew I was getting something that I was not entitled to and stood by and did nothing.
[5]Industrial
Credit Co. v. Inland G.M. Diesel, Inc., 51
[6] In
Central
Wisconsin Trust Co. v. Swenson, 222
[7] As proof of double taxation, the Jantes submitted receipts from tax years 1994 through 1997, 1999, 2001, and 2005. Each tax bill shows the acreage as 84.38, except for the 1999 year, which does not list an acreage amount. The Jantes assert that they did not submit to the court any earlier tax receipts because at Buckett’s deposition he stated that 1994 was the first year he thought he had paid taxes on the parcel. They state that they did not learn Buckett claimed he paid taxes since 1981 until his affidavit in support of summary judgment. And, they aver, at that point they did not have an opportunity to obtain additional, historic tax records. Beyond that, it is unclear whether the 84.38 acres included the disputed parcel, or not. These are exactly the sort of mistakes and disputes that should be resolved at the trial court level.