### COURT OF APPEALS DECISION DATED AND FILED April 6 , 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.
Appeal No. 2019AP1788 Cir. Ct. No. 2017CV10 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

C HARLES V AN H ULLE , P ETITIONER - R ESPONDENT ,
V . J AMES V AN H ULLE , T HOMAS V AN H ULLE , R ICHARD F RANCIS E PARVIER , D ANIEL M URPHY , A NDREW G. V AN H ULLE , C AROL A NN V AN H ULLE AND D ANIEL H. V AN H ULLE , R ESPONDENTS - A PPELLANTS , E DWARD V AN H ULL E , T ERRI O LSEN , J EAN V AN H ULLE , P ATRICIA V AN H ULLE , D AWN V AN H ULLE AND P AUL O LSEN , I N TERESTED P ERSONS .

APPEAL from a judgment of the circuit court for Florence County: LEON D. STENZ , Judge. Affirmed

.

Before Stark, P.J., Hruz and Seidl , JJ.No. 2019AP1788

2 Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3). ¶ 1 PER CURIAM. James Van Hulle 1 appeals a judgment entered in favor of C har l es Van Hulle, following a bench trial . The judgment imposed a constructive trust on the one

- fifth interest James currently has in certain Florence County property , and it requir ed James to convey his interest to himself and his four siblings as tenants in common

. James received his interest in the property by

a quit claim deed from his father, but the circuit court concluded his father had meant only to make James the primary person who could conduct lease negotiations with the other property ow ners on behalf of James’ siblings.
¶ 2 T he circuit court determin ed that equitable principles support ed the imposition of the constructive trust . James argues that there was no mistake regarding the contents of the unambiguous quit claim d eed transferring the property interest to him so as to support a reformation of the deed

. James therefore contends the court erred by imposing a constructive trust on his one
- fifth interest without a proper showing of the mistake upon which the court granted Charles relief

. We reject all of James’ arguments and affirm.

BACKGROUND
¶ 3 In the late 1950s, John Van Hulle

— who is the father of James , Charles , Edward, Daniel and Terr i

— together with John’s father and John ’s uncle, purchased fifty

- five acres in Florence County (“the Property”)

. The three original

1 Because the parties share a surname, we refer to them individually by their given names.No. 2019AP1788

3 individuals on the deed subsequently let others into the ownership group
. Eventually , t he Property was owned by John Va n Hulle, Howard Van Hulle, Glen Van Hulle, Thomas Van Hulle, and Thomas Murphy

. In 1972, John bui lt a cabin on a 1.44

- acre section of the Property to which the judgment indicated he had exclusive use

. We refer to this particular section of the Property as “the Cabin Land.”
¶ 4 In January 1991, the five owners of the fifty

- five

- acre parcel entered into a hand written lease ( “the L ease”) , which purported to allow John to manage and control the Cabin Land

. The L ease restricted the us e of that land to personal purposes and forb a d e all commer cial use. It also provided that the cabin itself could be expanded or replaced, but that multiple cabin s could not be constructed. John , as lessee, was responsible for paying taxes on the improvements , and if he failed to do so, the L ease woul d be terminated. The L ease contained the five lessors’ names but no signatures.
¶ 5 A few months after the L ease was created , John executed a quit claim deed conve ying his one

- fifth interest in the Property to his son , James. A round the same time, John, James, James’ siblings , and their spouses executed a handwritten contract (“ the C ontract”) , which controlled how the Cabin Land would be used a s well as the duties and responsibilities each family member assumed. The C ontract declared that

John Van Hulle of Krueger Quarry Road, County of Oconto, State of Wisconsin, has transferred his ownership of his one

- fifth share of Florence [C] ounty property to James Van Hulle. This means James is the official representative for all of John [ ’ ] s children and heirs that want to actively participate in the lease agreement between John and the five current owners of the total property.No. 2019AP1788

4 ¶ 6 In addition to designat ing James as the “official representative , ” the Contract appointed C harles to serve as “chairman of the group actively participating in the lease agreement,” and it imposed responsibility upon Charles for developing a “rotating schedule” for cabin use. The C ontract also provided that the family members equal ly share in th e expenses related to the Cabin Land

— such as electricity, insurance, taxes, improvements and mai ntenance

— and that any family members who failed to make their shared payments forfeited their right to use the Cabin Land

. Any major improvements to the Cabin Land were to be agreed upon by a majority of the family members

. The C ontract foreclosed expansion of the number of family members who could share in using the Cabin Land and join in the C ontract itself

. ¶ 7 Th e C ontract then governed th e use of the Cabin Land for over twenty years. During that time, James represented the family in dealings with the other owners of the large r parcel, and each family paid its equal share for operating the cabin

. Any excess amount of expenses paid would be remitted to each family m ember equally.
¶ 8 In late 2014 or early 2015, James began paying expenses for the Cabin Land himself rather than obtaining contributions fr om family members. In April 2015, James drafted an agreement (“ the U sa ge A greement”) specifically
sta t ing that he had the sole and exclusive right to determine the us e of the Cabin Land

. James presented the Usage Agreement to the oth er owners for signature. The U sage A greement provided that the document was

p ersonal to Jam es Van Hulle and shall not be perpetual or assignable to his heirs. Furthermore, at such time as James Van Hulle wishe s to terminate this Agreement, he shall provide the other co

- owners with a quit claim deed releasing his rights under this Usage Agreement. If not, all rights and duties shall terminate upon his death.No. 2019AP1788

5 James claimed that the U sage A greement was drafted to cure the L ease ’s defect of
not being signed , and to clarify that he would pay the real estate expenses and control all use of the Cabin Land

. ¶ 9 James then asked his siblings to sign the U sage A greement

. I n doing

so , they had to acknow ledge that James alone owned the C abin Land and controlled their interest in the Property

. The siblings were hesitant to sign the U sage A greement because it superseded the C ontract they originally signed , which confined James’ responsibility to serve as being the “official representative” in dealing with the owners of the larger parcel

. Thomas, Daniel and James eventually signed t he U sage A greement, but the other siblings, including Charles , did not

. In 2015, James stopped scheduling cabin usage to all other family member s , and thereafter he was the only family member to use the cabin.
¶ 10 Charles filed a complaint in this action , which he subsequently amended. The amended complaint alleg ed that James breached the L ease and the C ontrac t by executing the U sage A greement, and by doing so, he violated his fiduciary duty owed to John’s other children. Charles sou ght relief requesting : (1) James to act for the benefit of John’s heirs and to permit them to exercise their rights under the C ontract; (2) a judgment voiding the U sage A greement or , in the alternative, an injunction permanent ly enjoining the enforcement of the U sage A greement; (3) injunctive relief enforcing the unsigned lease agreement; and (4) an award of monetary damages, puni tive damages , and attorney fees and costs.
¶ 11 The circuit court held a two

- day bench trial

. It ultimately denied Charles’ request to reform the deed between John and James so as to include all of the siblings as co
- owners, concluding th at the deed itself was unambiguous

.No. 2019AP1788

6 Specifically, t he court found that John intended to give his one

- fifth interest in the Property to James and there was no mistake in that regard or otherwise in the deed itself

. Meanwhile, the court concluded Charles presented no evidence showing that John intended to execute a different document or to agree to something other than as stated in the deed

. John understood that Jam es was receiving ownership.
¶ 12 However, based on extrinsic evide nce surrounding the related transactions and decades of the parties’ conduct, t he circuit court concluded that the reason for John’s transfer of his interest to James was not to give James exclusive control over the Cabin Land vis

- à

- vis James’ siblings. I nstead , John

“ did exactly what he wanted to do , ” which was to g i ve his interest in the Property to James but only for the understood purpose of James be ing the family representative in dealing with the other owners of the Property

. ¶ 13 Based upon this finding, t he circuit court further determine d that it would impose a constructive trust o n James’ one
- fifth interest in the Property “in favor of the heirs of John Van Hulle (Charles Van Hulle, Edward Van Hulle, Terri Olsen, Daniel Van Hull e and James Van Hulle)

. ” The court noted that while James was not engaged in any type of fraud or abusive confidential relationship , his sole ownership of John’s interest in the Property nevertheless was obtained by mistake

. Specifically, it determined t hat John inadvertently thought that by deeding his interest in the Property to James only , James could get the beneficial

use

— to wit, to “get the use to negotiate and deal with the general owners and to make those decisions [easier] for the group ,” while “ he was still subject to the condition that [he] was as an official representative and that they all shared equally in the [ P ] roperty.”No. 2019AP1788

7 ¶ 14 The circuit court stated that a construc tive trust c ould be imposed when title to property is held b y someone who , in equity and good conscience , should not be entitled to the enjoyment of it

. The court concluded that it would be inequitable for James to retain sole title/ownership of the one

- fifth interest in the Property, “ due to mistake and unjust en richment. ” The court found that the Contract “ established a fiduciary duty upon James ” and that he breached that fiduciary duty by entering into the Usage Agreement. The court also found that the U sage A greement directly conflicted with the C ontract entered into between John and all of his children, including James. The court disagreed with James’ assertion that the U sage A greement pr otected his siblings. In fact, the court found that it did quite the opposite , as the siblings no longer ha d the righ t under the U sage A greement to use the Cabin Land

. ¶ 15 Ultimately, t he circuit court imposed a constructive trust on James’

one
- fifth interest in the Property in favor of John’s heirs , and it invalidated the U sage A greement

. James was ordered to execute a deed transferring his interest to

“ all the siblings or their heirs as tenants in common for the one

- fifth interest in the property

. ” James now appeals.

DISCUSSION
¶ 16 “Findings of fact shall not be set aside unless cl early erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.” W IS

. S TAT

. § 805.17(2) (201 9

- 20 ). A finding of fact is clearly erroneous whe n it is against the great weight and clear prepondera nce of the evidence. Phelps v. Physicians Ins. Co. of Wis., Inc. , 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615 . We may search the record for evidence in support ofNo. 2019AP1788

8 the circuit court’s factual findings. Royster
- Clark, Inc. v. Olsen’s Mill, Inc. , 2006 W I 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530.
¶ 17 We review the circuit court’s decision to impose a construct ive trust under the erroneous exercise of discretion standard. Pluem er ex rel. Buggs v . Pluemer , 2009 WI App 170, ¶9, 322 Wis. 2d 138, 776 N.W.2d 261. We will sustain a discretionary act where the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Gaugert v. Duve , 2001 WI 83, ¶44, 244 Wis. 2d 691, 628 N.W.2d 861.
¶ 18 James’ entire argument is re duced to an alleged inherent inconsistency between two of the circuit court’s conclusion s. James asserts the court first concluded that there was no basis to reform John’s deed conveying his interest in the Property to James because John did not mistakenly tran s fer his entire fee interest to James

— James asserts that he clearly intended to do so

. James contends that this conclusion is directly contradictory to the court’s second conclusion t hat a constructive trust should be imposed on James’ interest in the Property based up on a factual finding that John never intended James to have exclusive use of the Cabin Land to the detriment of John’s oth er children

. ¶ 19 James also argues that there must be an additional showing beyond unjust enrichment in order to properly impos e a constructive trust. In support of this contention, James cites Pulkkila v. Pulkkila , 2020 WI 34, 391 Wis. 2d 107 , 941 N.W.2d 239

. There, the Wisconsin Supreme Court noted:

Unjust enrichment by itself is not sufficient to require the imposition of a constructive trust

. Indeed, a constructive trust will be imposed only where there is a demonstration of unjust enrichment accompanied by an “ additional showing ” of “ actual or constructive fraud, duress, abuse ofNo. 2019AP1788

9 confidence, mistake , commission of a wrong, or by any form of un conscionable conduct” that has caused the one against whom a trust is imposed to either obtain or hold legal title to property which that person ought not in equity and good conscience enjoy. In short, both unjust enrichment and the “additional showing” a re required.

Id. , ¶30 (citations omitted ; emphasis added) . James asserts that Charles has failed to prove any such additional showing.
¶ 20 Specifically, James contends the circuit court erroneously exercised its discretion by determini ng that a mistake justified the imposition of a constructive trust. The court expressly held that John had no t made a mistake sufficient to warrant deed reformation

. The court, however, did find that a mistake was made with respect to Charles’ clai m for a constructive trust. James argues that i f there was no mistake that would justify deed reformation , the court necessarily err ed in finding a mistake that justified the imposition of the constructive trust

. A ccording to James , “It cannot be both ways

. ” Additionally, James argues that the court erroneously exercised its discretion because the court did not demonstrate a “ rational process in imposing a constructive trust ” against James , absent an additional showing beyond unjust enrichment

— “ here, mistake , in order to satisfy the legal standard for a constructive trust. ” F inally , James believes that ” [u]nder the circumstances here, there is no meaningful distinction between a mistake under a claim for reformation and a claim for the imposition of
a construc tive trust such that the mistake element may not be satisfied for one claim but may be satisfied for the other

. ”
¶ 21 We disagree with James’ various contentions

. A s Charles correctly points out and the circuit court held , reformation and constructive trusts are distinct legal concepts

. As to reformation , “Wisconsin courts have long recognized that a court in equity can reform written instruments that, by mutualNo. 2019AP1788

10 mistake, do not express the true intentions of the parties.” Chandelle Enters., LLC v. XLNT Dairy Farm, Inc. , 2 005 WI App 110, ¶18, 282 Wis. 2d 806, 699 N.W.2d 241. T o show a mutual mistake sufficient to support reformation , there must be clear and convincing evidence that both parties intended to make a different instrument than the one signed and that both parties agreed on facts different tha n those set forth in the instrument. Prezioso v. Aerts , 2014 WI App 126, ¶39, 358 Wis. 2d 714, 858 N.W.2d 386.
¶ 22 There was no such showing of mutual mist ake regarding the deed here . T he circuit court found that the quit claim deed was unambiguous on its face. The extrinsic evidence (here, the C ontract and , to a lesser extent, the Lease ) establish ed that John wanted to g i ve his interest in the Property to James , but with the understanding that he was going to act in a representative capacity for the benefit of all of his siblings. R esort to extrinsic evidence , however, ( such as the C ontract and the family’s subsequent conduct pursuant to it ) is proper to show the parties’ intent only if we conclude there is ambiguity within the four corners of the deed

. See Rikkers v. Ryan , 76 Wis. 2d 185, 188, 251 N.W.2d 25 (1977)

. The court correctly determined the deed was unambiguous , and , therefore , the C ontract and wealth of other evidence extrinsic to the deed could not be considered when determining if there was a basis to reform the deed.
¶ 23 Conversely, the C ontract and other extrinsic evidence could be considered when determining whether a c onstructive trust should be imposed in equity

. See Masino v. Sechrest , 268 Wis. 101, 110, 66 N.W.2d 740 (1954)

. It was clear from the C ontract and other evidence that John did not intend to permit James to own and use his interest in the Property to the exclu sion of James’ siblings , especially as it pertained to the family’s use of the Cabin Land . The circuit court thus noted that James’ fee simple, exclusive interest

— which gaveNo. 2019AP1788

11 James the authority to shut his siblings out

— was obtained by mistake

. Namely, rather th an acquiring sole ownership and use of the P roperty through the quit claim deed, extrinsic evidence showed that James was only to “get the use to negotiate and deal with the general owners and to make those decisions [easier] for the group but [that] he was still subject to the condition that [he] was an official representative and that they all shared equally in the [one

- fifth interest of the Property] .”
¶ 24 James and his siblings knew of his representative role and acted in accordance with that kn owledge for over twenty years. During that time , James acted in his representative capacity in dealings with the other owners of the large parcel, and each family member paid an equal share for operating the C abin Land and sharing in its use
. We agree with the circuit court that James’ unilateral us e of that representative capacity to suddenly exclude his family members based on their refusal to sign the Usage Agreement

— albeit consistent with his legal title to th e Property

— breached his implied fiduciary duty to his siblings

. ¶ 25 James is now attempting to change the original relationship of the parties in a manner that unjust ly enriches him. As the circuit court found, John erroneously thought t hat deeding his interest in the Property to J ames in fee simple would ensure that James served as fiduciary for his siblings and nothing more. Thus, there was a clear mistake

. T he court properly exercised its discretion in ordering a constructive trust in order to give full effect to John’s original intention of p roviding James with his one
- fifth interest in the Property for purposes of representing the rights of all of the siblings in the use of the P roperty , rather than requiring his siblings to recogn ize James’ rights attendant to his ownership that were directly contrary to the Contract and the Lease

.No. 2019AP1788

12 ¶ 26 Indeed, t here was overwhelming evidence of John’s intentions and James’ actions contrary to th ose intentions . James never address e s how the circuit
court erred in its relevant factual findings other than pointing to his own testimony and claim ing that the court ’s finding of a mistake reached inconsistent legal conclusions on the merits of Charles’ claims for deed reformation and the imposition of a constructive trust

. T he court , however, is the ultimate arbiter of the credibility of the witnesses and of the weight to be given to each witness’s testimony. Plesko v. Figgie Int’l , 190 Wis. 2 d 764, 775, 528 N.W.2d 446 (Ct. App. 1994)

. The court found James’ testimony to be “ evasive ” and

“ ludicrous

. ” Further more , as explained above , the two “ mistakes ” at issue with respect to each legal doctrine are substantively different . There was no mistake in entering into the deed , which unambi guously transferred John’s one

- fifth interest in the Property to James. The only mistake that occurred was that John incorrect ly thought that by deeding his interest in the Property to James , James would be required to act as a representative for the equa l owners and users , rather than as the exclusive owner and possessor.
¶ 27 On appeal, Charles makes a compelling argument regarding James’ efforts at trial

— namely, James did not seek to further John’s plan through the U sage A greement but , rather , to override it. If James’ assertion were right

— i.e., that as the fee simple owner, he alone possessed full control over the interest in P roperty

— then John was mistaken and his plan fails because the deed to James and the C ontract could not ensure his children’s equal use of the Property. And, if James was merely attempting to further John ’s plan by requiring his siblings’
assent to the U sage A greement, then the constructive trust clarif ies and accomplishes what John functionally planned in the first place. In any event,No. 2019AP1788

13 neither of the scenarios justif ies awarding James property that was never intended by John for James’ exclusive use to the detriment of his siblings.
¶ 28 The record supports the circuit court’s determination s b oth that James was unjust ly enrich ed and that Charles made the additional showing of a mistake by John regarding the effect of deeding his one

- fifth interest in the Property to James

. Contrary to James’ assertions, t he court made no contradictory fac tual findings, much less found “ without explanation ” that John mad e a mistake sufficient to impose a constructive trust. In all, we perceive no basis on which to conclude that the court erroneously exercised its discretion by voiding the U sage A greement, impos ing a constructive trust , and ordering James to deed the one
- fifth interest in the P roperty equally to himself and his four siblings in order to satisfy that constructive trust

.

By the Court

. — Judgment affirmed. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5. (2019

- 20).