COURT OF APPEALS DECISION DATED AND RELEASED January 8, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0279
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
LARRY TAYLOR,
Plaintiff-Appellant,
v.
ROBERT A. NUZZO,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Kenosha County:
DAVID M. BASTIANELLI, Judge. Affirmed.
Before Brown, Nettesheim
and Anderson, JJ.
PER
CURIAM. Larry Taylor appeals from an order dismissing his
unjust enrichment claim against Robert A. Nuzzo on the grounds that Nuzzo did
not appreciate the benefit Taylor conferred upon him by supporting Nuzzo's
biological child born to Taylor's wife during their marriage. Because we agree that the elements of unjust
enrichment were not satisfied, we affirm.
The facts are
undisputed. A child was born to Debra Taylor
in August 1988, while she was married to Larry Taylor. In his affidavit in support of summary
judgment, Nuzzo stated that he first learned he fathered the child in May 1994
and began making child support payments in July 1994. Nuzzo denied paternity from February 1992, when Taylor called to
advise him that he was the biological father, to May 1994 when Nuzzo was
adjudicated the father in an Illinois proceeding.
Taylor's affidavit
indicates that he learned that he was not the biological father in February
1992. The Taylors commenced divorce
proceedings in May 1992 and were divorced in February 1994. Taylor sued Nuzzo in April 1995 claiming
unjust enrichment because Taylor supported the child when support was Nuzzo's
legal obligation as the biological father.
At the hearing on
Nuzzo's summary judgment motion, Taylor stated that his claim was for unjust
enrichment and restitution to recover the cost of supporting the child until
Nuzzo's paternity was determined. The
trial court considered the parties' affidavits on summary judgment in the
context of Taylor's unjust enrichment claim.
The trial court concluded that the second element of unjust
enrichment—appreciation or knowledge by Nuzzo of the benefit conferred—was not
satisfied because Nuzzo denied paternity until he was adjudicated the father in
May 1994. The trial court concluded
that it was undisputed that Nuzzo had no appreciation of the support benefit
while it was being conferred by Taylor.
The trial court found no material factual dispute and ruled that there
were insufficient facts to support the appreciation or knowledge element of
Taylor's unjust enrichment claim.
We review decisions on
summary judgment by applying the same methodology as the trial court. M & I First Nat'l Bank v.
Episcopal Homes Management, Inc., 195 Wis.2d 485, 496, 536 N.W.2d 175,
182 (Ct. App. 1995); see § 802.08(2), Stats. That methodology has been recited often and
we need not repeat it here except to observe that summary judgment is
appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. See M & I First Nat'l Bank, 195 Wis.2d
at 496-97, 537 N.W.2d at 182.
On appeal, Taylor argues
that satisfaction of the second element of unjust enrichment—knowledge or
appreciation of the benefit conferred—was unnecessary in order to maintain his
cause of action and to seek restitution.
The elements of unjust enrichment are:
(1) a benefit conferred upon the defendant by the plaintiff; (2) an
appreciation or knowledge by the defendant of the benefit; and (3) acceptance
or retention by the defendant of the benefit under circumstances making it
inequitable for the defendant to retain the benefit without payment of its
value. Puttkammer v. Minth,
83 Wis.2d 686, 688-89, 266 N.W.2d 361, 363 (1978). Restitution is the recovery for unjust enrichment. Management Computer Servs., Inc. v.
Hawkins, Ash, Baptie & Co., 196 Wis.2d 578, 599-600, 539 N.W.2d
111, 120 (Ct. App. 1995), aff'd in part, rev'd in part by No. 93‑0140
(Wis. Dec. 20, 1996). The trial
court found that it was undisputed that Nuzzo had no appreciation that he was
the biological father until his paternity was adjudicated in a May 1994
Illinois proceeding. Accordingly, he
could not have appreciated the benefit Taylor conferred upon him by supporting
his child.[1]
The elements of unjust
enrichment are clear. The trial court
did not err in granting Nuzzo summary judgment on the undisputed facts.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.