COURT OF APPEALS
DECISION
DATED AND FILED
April 23, 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 WISCONSIN���
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IN COURT OF
APPEALS
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DISTRICT I
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In the matter of the estate of Stanley
J. Fredericks:
Mary Ann Jezuit,
���������
Plaintiff-Respondent-Cross-Appellant,
���� v.
Michael J. Fredericks , individually as Power of Attorney
for Stanley
J. Fredericks, Michael J. Fredericks ,
Personal Representative of the Estate of Stanley J.
Fredericks and William Fredericks,
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Defendants-Appellants-Cross-Respondents.
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����������� APPEAL
and CROSS-APPEAL from a judgment of the circuit court for Milwaukee County:� michael
j. dwyer, Judge.� Affirmed.�
����������� Before Higginbotham, P.J., Vergeront and Bridge, JJ.
�1������� PER CURIAM. Michael Fredericks
and his son, William Fredericks, appeal a judgment that awards Mary Ann Jezuit
$239,054.68 from Michael or the estate, and compels William to return a
dwelling to the estate.� The judgment is
based on a jury finding that Stanley Fredericks was not competent and was
subject to Michael�s undue influence when he signed a quitclaim deed
transferring the residence to William.�
The Fredericks
raise numerous issues on appeal. �Jezuit
cross-appeals, arguing that she is entitled to punitive damages.� We affirm the judgment.
BACKGROUND
�2������� Stanley�s
will bequeathed a residence to Jezuit.�
However, approximately three weeks before he died, Stanley executed a quitclaim deed
transferring the residence to his grandson, William.� Jezuit initially commenced this action as an
untimely claim against the estate. �She
eventually amended her complaint to plead an objection to the inventory of the
estate under Wis. Stat. � 879.63
(2007-08)
and breach of fiduciary duty by Michael.�
�3������� At trial, Jezuit presented evidence on Stanley�s competency to execute the deed.� Dr. Shane Wernsing examined Stanley�s medical records and opined that he
was not competent.� Stanley�s medical records indicate that on
the day he signed the quitclaim deed he was disoriented as to time.�
�4������� Jezuit also presented evidence on the two-prong and
four-prong tests for undue influence.�
The two-prong test requires proof of a confidential or fiduciary
relationship and the existence of suspicious circumstances.� Malmar v. Stimac, 73 Wis.
2d 192, 202, 243 N.W.2d 435 (1976). �The
four-prong test for undue influence requires proof of susceptibility,
opportunity to untimely influence, a disposition to influence, and a coveted
result.� Id.�
�5������� The court concluded as a matter of law that Stanley and
Michael had a fiduciary relationship because Michael possessed and recently
utilized a power of attorney with respect to Stanley.�
Jezuit presented numerous witnesses to establish suspicious circumstances.� Attorney Michael Tobin, Stanley�s longtime attorney, testified that he
felt pressured by Michael to prepare a transfer deed.� Tobin refused.� Michael then approached Attorney Gerald
Boisits to prepare the deed and, along with Michael�s wife and William, to
present the deed to Stanley
for his signature.� Boisits had never
spoken to Stanley
before and had not reviewed his estate plan.�
Stanley�s sisters testified to Stanley�s longstanding
intent that the real estate in question go to Jezuit, including a conversation
shortly before he went to the hospital.�
Family members were discouraged by Michael�s wife from visiting Stanley in his last days,
ostensibly because he was allowed no visitors other than medical
personnel.� Stanley�s sister testified that she later
found out that was not the case.�
�6������� Regarding the four-prong test, Jezuit presented evidence from
Dr. Wernsing that Stanley
was susceptible to undue influence.�
Williams� opportunity to influence Stanley
was accomplished through the attorney he hired, Michael�s wife and his son, who
were the only people present when the deed was signed.� The disposition to influence was shown by his
hiring of attorney Boisits and, through his wife, discouraging other relatives
from visiting Stanley.� Finally, the coveted desired result consisted
of obtaining for his son, William, a residence valued at $140,000.�
�7������� The jury also heard evidence of Michael�s use of an
eighteen-year-old power of attorney to cash in Stanley�s
annuity that had named Stanley�s
four sisters as beneficiaries.� Michael
exercised his rights under the power of attorney even though he had not had any
contact with Stanley
for more than five years.� The effect of
cashing in the annuity and depositing it in a money market account was that the
$140,000 proceeds would then flow through the estate where Michael was a
primary beneficiary, rather than going to Stanley�s sisters.�
�8������� The Fredericks� witnesses denied any wrongdoing and claimed Stanley was competent to
execute the deed.� Dr. Robert Goldmann, Stanley�s physician, testified as a fact witness regarding
Stanley�s
physical health.� He was not, however,
allowed to offer an opinion as an expert regarding Stanley�s mental condition
because Goldmann was not identified as an expert witness as required in the
scheduling order and because Goldmann did not profess to have expertise on that
question.� The court also ruled that the dead
man�s statute, Wis. Stat. � 885.16,
disqualified William and Susan Fredericks from testifying regarding their
conversations with Stanley
before his death.�
�9������� The jury found that Stanley
was not competent when he signed the deed.�
It also found that suspicious circumstances were present in the transfer
and that Michael had not established that he did not unduly influence Stanley.� The verdict also included findings that Stanley was susceptible to undue influence, Michael had an
opportunity to unduly influence Stanley, he had
the disposition to influence Stanley
and he achieved a desired result.� The court
answered the verdict questions relating to Michael�s fiduciary relationship
with Stanley
and the amount of damages that would compensate Jezuit for the lost
property.� The court entered an order for
judgment requiring William to return the property to the estate and requiring
the estate or Michael to pay Jezuit $239,054.68 in which damages consisted of
the value of the house plus attorney fees and costs.�
DISCUSSION
�10����� The Fredericks first argue that the circuit court should have
granted their motion for summary judgment because Jezuit�s initial claim
against the estate was untimely.� Jezuit
amended her complaint to plead an action under Wis. Stat. � 879.63.�
That statute imposes no deadline for bringing an action to add property
to the inventory of an estate.� Because Jezuit
abandoned her �claim against the estate,� her untimely filing of the initial
claim is irrelevant.�
�11����� The Fredericks next argue that Jezuit should not have been
allowed to amend her complaint because they did not consent to the
amendment.� However, their consent was
not necessary under Wis. Stat. � 802.09(1)
because the amendment was granted by leave of the court.� In fact, the court suggested the filing of an
amended complaint.� In addition, the Fredericks� attorney
withdrew the parts of the motion for summary judgment regarding jurisdiction
and the statute of limitations.�
�12����� The Fredericks also contend the remaining portion of the
summary judgment motion, dealing with the merits of the undue influence claim,
should have been granted.� Summary
judgment is only appropriate if the supporting papers show there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law.� See Wis. Stat. � 802.08(2).� The Fredericks
argue that there was no evidence of suspicious circumstances, no evidence of
Michael�s opportunity to unduly influence Stanley,
and no evidence that Michael benefitted from the transfer of the property to
William.� The same argument is repeated
under sections of their brief relating to a motion to dismiss at the close of
the plaintiff�s case, challenges to the jury instructions and verdict form, and
arguments relating to their posttrial motions.�
The answer is the same as to each of these arguments.� Jezuit presented sufficient evidence to
defeat summary judgment and to support the jury�s verdict.�
�13����� The suspicious circumstances included Stanley�s abrupt decision to, in effect,
disinherit Jezuit despite statements he made before he went to the hospital.� Michael�s decision to retain an attorney to
draft and present the quitclaim deed after Stanley�s
attorney refused, along with evidence that relatives were discouraged from
visiting Stanley,
constitute suspicious circumstances, particularly when coupled with Michael�s
actions regarding the annuity.� Michael�s
opportunity to influence Stanley
was established despite their estrangement.�
Michael�s selection of Attorney Boisits and the presence of his wife and
son adequately establish his opportunity to influence Stanley through others.� The Fredericks
cite no authority for the proposition that the opportunity to influence the
testator does not include the activity of surrogates such as an attorney and
family members.� Michael�s benefit from
the undue influence consisted of obtaining a free house for his son.� Again, the Fredericks cite no authority for the
proposition that the undue influence must directly benefit the person providing
the influence rather than a close family member.� To the contrary, the concept of a coveted
result includes obtaining for oneself or another a benefit that a person would
not normally receive.� Becker
v. Zoschke, 76 Wis. 2d 336,
349, 251 N.W.2d 431 (1977).
�14����� The Fredericks next argue that Dr. Goldmann should have been
allowed to testify as an expert witness.�
The court properly exercised its discretion when it limited Goldmann�s
testimony to exclude expert opinion testimony because the Fredericks failed to comply with the
scheduling order.� In addition, Goldmann
testified in his deposition that he was not qualified to give an expert opinion
regarding Stanley�s
mental ability to execute legal documents.�
�15����� The Fredericks next argue that the trial court improperly
exercised its discretion when it allowed testimony regarding Michael�s
liquidation of Stanley�s
annuity account.� Jezuit�s amended
complaint alleged that Michael breached his fiduciary duty as personal
representative with regard to the annuity transaction.� The trial court ultimately ruled that Jezuit
lacked standing to raise that issue.�
However, Michael�s decision to liquidate the annuity account was
introduced as other acts evidence to show Michael�s motive, intent, opportunity
and preparation.� See Wis. Stat.
� 904.04(2). �The evidence
was relevant to show suspicious circumstances, an element of the two-prong test
for undue influence.� It was also
relevant to establish Michael�s disposition to unduly influence, which �implies
grasping and overreaching, and a willingness to do something wrong or
unfair.�� Evans v. Krueger, 83 Wis.
2d 259, 282, 265 N.W.2d 529 (1978).� The Fredericks did not
establish that introducing evidence regarding the annuity was substantially
more prejudicial than probative.�
Therefore, under the test set out in State v. Sullivan, 216 Wis.
2d 768, 772, 576 N.W.2d 30 (1998), the court properly admitted the
evidence.� The Fredericks
argue that liquidating the annuity was not a �prior bad act� because it
occurred three days after Stanley
signed the quitclaim deed.� Nothing in Wis. Stat. � 904.04(2) requires
that the other crime, wrong or bad act precede the charged offense.
�16����� The Fredericks next argue that they were prejudiced by the
court�s refusal to allow William and Susan to testify regarding their
conversations with Stanley.� However, they do not identify any specific
error in the court�s enforcement of Wis.
Stat. � 885.16, the dead man�s statute.� The core meaning of the statute is that �it
disqualifies a witness to a transaction or communication with a decedent from
testifying about that transaction or communication in his or her favor, or in
favor of any party to the case claiming under the witness.�� Bell v. Neugart, 2002 WI App 180,
�17, 256 Wis. 2d 969, 650 N.W.2d 52.� The Fredericks
offer no specific argument that the dead man�s statute did not apply.�
�17����� The Fredericks next argue that the court utilized a misleading,
confusing and highly prejudicial special verdict.� They argue that the court improperly shifted
the burden of proof on question number 8:�
�Has Michael Fredericks shown that he did not unduly influence Stanley
Fredericks?�� The court did not
improperly instruct the jury on this question.�
Under the two-prong test for undue influence, upon proof of a confidential
or fiduciary relationship and suspicious circumstances, a rebuttable
presumption of undue influence is raised.�
See Lee v. Kamesar, 81 Wis. 2d 151,
164, 259 N.W.2d 733 (1977).� The court
answered the second verdict question concluding as a matter of law that Stanley
and Michael had a fiduciary relationship.�
The jury answered the third question, finding suspicious circumstances
were present in the transfer of the real estate.� Therefore, a rebuttal of presumption of undue
influence was created and the court appropriately required Michael to rebut the
presumption.� Although the court did not
use the term �rebuttable presumption� in the jury instruction, the effect of
requiring Michael to overcome the presumption correctly states the law.� As to all other questions, the court
appropriately instructed the jury that Jezuit had the burden of proof.�
�18����� The Fredericks also argue that the special verdict should not
have included question nine:� �What sum of
money will fairly and reasonably compensate Mary Ann Jezuit for her
damages?�� That question was answered by
the court.� The Fredericks argue that the jury should not
have been exposed to the question because it raised an inference that Jezuit was
damaged.� No objection to question number
nine was raised in the jury instruction and verdict conference.� Therefore, the objection was waived.� See Wis. Stat. � 805.13(3).�
�19����� The Fredericks also argue that judgment against William was not
appropriate because none of the verdict questions mention William.� William is a party to this action because he
was the title holder to the property Jezuit sought to return to the inventory
of the estate.� As the beneficiary of
Michael�s wrongdoing, William is an appropriate party even though none of the
allegations directly involved William.�
The Fredericks
cite no authority for the proposition that William must be included in the
verdict before he can be ordered to return property to the estate.�
�20����� The Fredericks next argue that the court should have read
Wisconsin Civil Jury Instruction 352 regarding the presumption of Stanley�s competency.� The court did instruct the jury that a person
is presumed to have sufficient competency to sign a deed and transfer
property.� We conclude that the
instruction given adequately informed the jury of the presumption of
competency.�
�21����� The Fredericks next argue that the order for judgment and
judgment are ambiguous and confusing.�
They argue that Jezuit is entitled to the residence, not the cash value
of the residence under the terms of the will.�
The order for judgment and the transcript of the posttrial hearing allow
a $140,000 credit against the total amount of the judgment if the estate
transferred the residence to Jezuit.�
There is no double counting of the value of the house.� If the Fredericks
elect to retain the house, they are not aggrieved by that choice.�
�22����� The Fredericks also challenge the portion of the order for
judgment that allows recovery of future attorney fees for the cost of defending
the verdict on appeal.� They argue that
the award of attorney fees is not allowed under Wis. Stat. Rule 809.25.�
The circuit court awarded the future attorney fees pursuant to Wis. Stat. �� 879.33, 879.37 and
879.63. �The Fredericks do not argue the applicability of
those statutes.� Therefore, we will not
address the issue.� See State v. Allen, 2004 WI 106, �26 n.8,
274 Wis. 2d
568, 682 N.W.2d 433 (issue not argued is waived). �The Fredericks also complain that the order for
judgment required the return of all early distributions by November 17, 2006,
one month before the order for judgment was signed.� They do not identify any penalty that was
imposed for violating the order.� They do
not argue that the court exceeded its authority to preserve the assets of the
estate.� We conclude the issue is not
adequately briefed to establish that the Fredericks
are aggrieved by the discrepancy.
�23����� Finally, the Fredericks
request a new trial in the interest of justice.�
They repeat arguments already considered and rejected by this
court.� We conclude that the merits were
fully and fairly tried, justice has not miscarried, and there is little
likelihood that retrial would result in a different verdict.� See State v. Darcy N.K., 218 Wis.
2d 640, 667-68, 581 N.W.2d 567 (Ct. App.
1998).�
�24����� In her cross-appeal, Jezuit argues that the trial court
improperly exercised its discretion by not presenting the issue of punitive
damages to the jury.� Punitive damages
are available only when the conduct is sufficiently aggravated.� Strenke v. Hogner, 2005 WI 25, �38,
279 Wis.
2d 52, 694 N.W.2d 296.� In Strenke,
the court noted that �not every drunk driving case will give rise to punitive
damages.� Only when the conduct is so
aggravated that it meets the elevated standard of an �intentional disregard of
rights� should a circuit court send the issue to a jury.�� Id.,
�42. �In this case, Fredericks� undue influence is not distinguishable
from any other undue influence case.� We
agree with the circuit court that Fredericks�
actions as found by the jury are not sufficiently egregious to warrant punitive
damages.
����������������������� By the
Court.�Judgment affirmed.
����������������������� This opinion will not be published.� See Wis.
Stat. Rule 809.23(1)(b)5.