COURT OF APPEALS DECISION DATED AND FILED May 5, 2010 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
and CROSS-APPEAL from a judgment of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Snyder, J.
¶1 PER CURIAM. Glenn and
Elsie Jante appeal and Daniel Buckett cross-appeals from a circuit court
judgment awarding damages and an equitable lien to Buckett on a theory of
unjust enrichment because Buckett paid property taxes for the years 1981-92[1]
on a parcel of property owned by the Jantes and their predecessors in
title. On appeal, the Jantes argue that
Buckett’s unjust enrichment claim should have been barred by laches. On cross-appeal, Buckett seeks to recover
taxes he paid on the parcel for the 1993-2005 tax years. Pursuant
to a presubmission conference and this court’s order of November 17, 2009, the
parties submitted memorandum briefs.
Upon review of those memoranda and the record, we affirm the circuit
court.
¶2 The
facts of this matter are set out in Buckett v. Jante, 2009 WI App
55, 316 Wis. 2d 804, 767 N.W.2d 376 (Buckett I), and we do not repeat
them here at length. Buckett and the Jantes claim that they have each
been paying real estate taxes on the same two-acre parcel of property. The parcel was actually owned by the Jantes
and family members who preceded them in title.
The parcel was created in the late 1960s when
¶3 On
remand, both parties sought summary judgment.
The Jantes’ summary judgment motion appended materials showing that
Buckett paid taxes on the parcel for tax years 1981-2005. The Jantes also submitted an excerpt from
Buckett’s deposition in which he testified that in 1993, he received an
additional tax bill, but he did not inquire about that bill even though he
wondered why he received it.[2] Buckett thought the tax bill might have something
to do with his divorce or the property behind his home.
¶4 Buckett’s
summary judgment motion argued that the Jantes could not show that they paid
taxes on the parcel to support their double taxation theory. Therefore, Buckett conferred a benefit via
his tax payments and should be able to recover the taxes he paid.
¶5 At
the summary judgment hearing, the parties agreed that the Jantes owned the
parcel and that this was the same parcel upon which Buckett had been paying
taxes since 1981. Buckett conceded that
it was not until 1993 that he received an additional tax bill and first
wondered about his tax obligations.
Buckett believed the separate tax bill had to do with his divorce, did
not inquire regarding the bill, and continued paying property taxes on the
parcel through 2005.
¶6 The
Jantes argued that because their legal description and total acreage was never
reduced by the two-acre parcel, they must have been paying taxes on the parcel
all along, even while Buckett paid taxes under the parcel number the county
assigned as a result of unknown circumstances.
Buckett countered that the Jantes did not prove that the two-acre parcel
was included on the Jantes’ tax bill for the 1981-2005 tax years.
¶7 The
Jantes opposed Buckett’s request for an equitable lien for the taxes he paid on
the parcel. The Jantes argued that
although they farmed the land, they did not obtain title to the parcel from the
elder Mrs. Jante’s estate until 1991.
Therefore, the lien should not cover Buckett’s tax payments for the
1981-91 tax years. And, because the
Jantes did not learn until 2005 that Buckett had been paying taxes on the
parcel, Buckett should not have an equitable lien for the period from
1991-2005. Buckett responded that his
equitable interest in the parcel, the res, attached in 1981 regardless of who
owned the property then or later.
¶8 The
circuit court concluded that there were no disputed issues of material
fact. The key dates for summary judgment
purposes were 1981 (when Buckett could prove he started paying taxes on the
parcel and paid $11,817 in taxes through the 1992 tax year), 1991 (when the
Jantes acquired the parcel from the elder Mrs. Jante’s estate), and 1993 (when
Buckett received an unexpected tax bill and did not inquire about it). The court concluded that the Jantes did not
demonstrate that they also paid taxes on the parcel so that double taxation
occurred. Therefore, the Jantes did not
defeat Buckett’s unjust enrichment claim for the benefit he conferred by paying
$11,817 in taxes on the parcel through the 1992 tax year. The court granted Buckett an equitable lien
on the parcel to avoid unjustly enriching the Jantes.
¶9 Turning to the Jantes’ defenses, laches and failure to mitigate, the court concluded that it was undisputed that Buckett could not have known that he was paying taxes on the parcel until 1993 when he received an unexpected tax bill. At that point, the court reasoned, “a person of ordinary intelligence and prudence under the same or similar circumstances would not have acted in the same fashion” and would have taken some steps to investigate. Therefore, Buckett could not recover for taxes paid for the 1993-2005 tax years because he failed to mitigate his damages. The Jantes appeal, and Buckett cross-appeals.
¶10 An appeal from a grant of summary judgment raises an issue of
law that we review de novo by applying the same standards employed by the
circuit court. Brownelli v. McCaughtry,
182
¶11 A circuit court’s decision to grant equitable relief in an
action for unjust enrichment is discretionary, but whether the undisputed facts
satisfy the elements of unjust enrichment presents a question of law that we
review de novo. Tri-State Mechanical, Inc. v.
Northland College, 2004 WI App 100, ¶13, 273 Wis. 2d 471, 681 N.W.2d
302 (citations omitted). “To recover on
a claim for unjust enrichment, three elements must be proven: (1) a benefit
conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge
by the defendant of the benefit; and (3) the acceptance or retention by the
defendant of the benefit under circumstances that makes its retention
inequitable.”
¶12 The timeliness of an unjust enrichment claim is governed by
laches. See Suburban Motors of Grafton, Inc. v. Forester, 134
¶13 On
appeal, the Jantes argue that Buckett should have known as early as 1981 that
he was paying taxes on the parcel because the tax bills from 1981 forward bear
the parcel number for the two-acre parcel.
This claim is not supported by the summary judgment record. The documents the parties submitted showing
that Buckett paid the taxes were created in 2008 from a review of the records
in the
¶14 As
noted in Buckett I, on remand the
Jantes had to prove their defense to the unjust enrichment claim: that they also paid taxes on the parcel and
therefore Buckett did not confer a benefit upon them. Buckett, 316
¶15 The Jantes argue that Buckett’s unjust enrichment claim for the
tax years 1981-92 should have been barred on laches grounds. It is undisputed that Buckett did not have an
inkling before 1993 that something was amiss regarding his tax
obligations. The Jantes argue that once
Buckett was on notice in 1993 that something was amiss with his tax bills, he
should have brought an unjust enrichment claim for the 1981-92 taxes contemporaneously
with that discovery. Our review of the
record reveals that the Jantes did not ask the circuit court to consider this
specific argument. Rather, the Jantes
argued in the circuit court that Buckett should have known in 1981 that he was
paying taxes on property he did not own.
This is not the same argument as made on appeal. We will not address this issue for the first
time on appeal. Segall v. Hurwitz, 114
¶16 On cross-appeal, Buckett argues that he paid all of the taxes
on the parcel for the years 1981 to 2005, and recovery on his unjust enrichment
claim should not have been limited to tax payments made through the 1992 tax
year. Unjust enrichment sounds in equity
and a court, sitting in equity, may consider equitable defenses, see Suburban Motors, 134
¶17 The
Jantes challenge the circuit court’s award to Buckett of an equitable lien on
the parcel for the 1981-92 taxes.
The essential elements of equitable liens include (1) a
debt, duty or obligation owing by one person to another[,] and (2) a res to
which that obligation fastens, which can be identified or described with
reasonable certainty. In
Yorgan
v. Durkin, 2006 WI 60, ¶38, 290
¶18 The
Jantes argue that the parcel is not sufficiently identifiable so as to be the
res to which the obligation attaches. We
disagree. Both parties sought summary
judgment and agreed that it was undisputed which parcel was the subject of Buckett’s claims. A party cannot take an inconsistent position
on appeal. Godfrey Co. v. Lopardo,
164
¶19 The
Jantes protest that an equitable lien should not attach to the parcel because
they had no notice that Buckett was paying taxes on the parcel during the time
the elder Mrs. Jante owned the property and for the first two years they owned
the property after purchasing it from her estate in 1991. An equitable lien relates back to the time it
was created by the parties’ conduct. Swanson
v. Stoffregen (In re Stoffregen), 206 B.R. 939, 944 (Bankr. E.D. Wis.
1997). The equitable lien attached when
Buckett paid the real estate taxes for the parcel starting in 1981 and
continuing until Buckett should have investigated the arrival of an additional
tax bill in 1993. We detect no misuse of
circuit court discretion in fashioning this remedy.
¶20 We
conclude that the Jantes were unjustly enriched because Buckett paid taxes on
the parcel for the 1981-92 tax years, and Buckett conferred a benefit which the
Jantes have accepted, retained and appreciated.
Tri-State Mechanical, 273
¶21 No
costs to either party on appeal.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] We describe the years Buckett paid taxes on the parcel by the tax year, not the year when Buckett actually paid the taxes.
[2] The additional tax bill Buckett received in 1993 was not for the parcel at issue in this case. However, the arrival of an additional tax bill for an unknown property should have prompted Buckett to inquire regarding his tax obligations.
[3] In their depositions, Glenn Jante and Buckett agreed that the parcel received a separate parcel number in 1993 or 1994.
[4] We need not speculate as to what such an investigation would have revealed.