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(2018 – unpublished) 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 

Tikalsky and 

Amended and Restated Donald and Betty Lou 

Tikalsky Revocable Trust, 

 Defendants, 

Terry Stevens, 

 Defendant-Respondent-Petitioner. 

FILED 

MAY 23, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

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 

2 

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. 
No. 2017AP170 

3 

("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 

 

2 Although 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. 

3 While 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. 

4 Prior to the 2008 revision, the 2007 Trust provided that 

Steven would receive certain effects from Mr. Tikalsky's law 

office under certain circumstances. 
No. 2017AP170 

4 

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. 
No. 2017AP170 

5 

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. 
No. 2017AP170 

6 

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. 
No. 2017AP170 

7 

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 
No. 2017AP170 

8 

("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)). 
No. 2017AP170 

9 

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. 
No. 2017AP170 

10 

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. 

 

10 This 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. 
No. 2017AP170 

11 

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." 

 

11 See 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). 
No. 2017AP170 

12 

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. 
No. 2017AP170 

13 

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 
No. 2017AP170 

14 

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 

 

13 Black'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). 
No. 2017AP170 

15 

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 
No. 2017AP170 

16 

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, 

 

14 Quoting 3 Pomeroy, Equity Jurisprudence (4th Ed.) pp. 

2397-2401. 

15 Restatement (First) of Restitution § 160 (1937). 
No. 2017AP170 

17 

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 

 

16 Schmalz 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). 
No. 2017AP170 

18 

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 
No. 2017AP170 

19 

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."). 
No. 2017AP170 

20 

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 
No. 2017AP170 

21 

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 
No. 2017AP170 

22 

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 

 

18 Steven'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. 

19 See 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)). 
No. 2017AP170 

23 

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." 
No. 2017AP170 

24 

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) 
No. 2017AP170 

25 

¶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. 
No. 2017AP170 

26 

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, 
No. 2017AP170 

27 

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 
No. 2017AP170 

28 

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 
No. 2017AP170 

29 

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 
No. 2017AP170 

30 

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 

 

23 See, e.g., Chief Justice Roggensack's dissent, ¶73 ("The 

complaint alleges that '[t]he funds that constituted a onequarter 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). 
No. 2017AP170 

31 

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 
No. 2017AP170 

32 

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-DMix 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 
No. 2017AP170 

33 

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). 
No. 2017AP170 

34 

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. 
No. 2017AP170 

35 

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 commonsense 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. 
No. 2017AP170 

36 

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 freefloating 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) 
No. 2017AP170 

37 

* 

¶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. 
No. 2017AP170 

38 

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

reversed. 
No. 2017AP170.akz 

1 

¶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 
No. 2017AP170.akz 

2 

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). 
No. 2017AP170.akz 

3 

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. 
No. 2017AP170.akz 

4 

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 standalone 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 
No. 2017AP170.akz 

5 

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 
No. 2017AP170.akz 

6 

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 
No. 2017AP170.akz 

7 

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 
No. 2017AP170.akz 

8 

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) 
No. 2017AP170.akz 

9 

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). 
No. 2017AP170.akz 

10 

¶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) 
No. 2017AP170.akz 

11 

¶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. 
No. 2017AP170.pdr 

1 

¶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. 
No. 2017AP170.pdr 

2 

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). 
No. 2017AP170.pdr 

3 

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 onethird interest in her parents' estate, Terry was a participant 

 

3 Complaint, ¶123. 

4 Complaint, ¶133. 

5 Complaint, ¶134. 

6 Complaint, ¶135. 
No. 2017AP170.pdr 

4 

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) 
No. 2017AP170.pdr 

5 

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). 
No. 2017AP170.pdr 

6 

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 
No. 2017AP170.pdr 

7 

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. 
No. 2017AP170.pdr 

8 

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 
No. 2017AP170.pdr 

9 

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 
No. 2017AP170.pdr 

10 

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 

 

13 The 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. 

14 Wisconsin 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. 
No. 2017AP170.pdr 

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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. 
No. 2017AP170.pdr 

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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. 

 

19 E. 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. 
No. 2017AP170.awb 

1 

¶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."). 
No. 2017AP170.awb 

2 

¶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. 
No. 2017AP170.awb 

3 

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. 
No. 2017AP170.awb 

4 

¶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. 
No. 2017AP170.awb 

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