Alexopoulos v. Dakouras

• Decision Date: 06 October 1970
• Docket Number: No. 134,134
• Citation: 48 Wis.2d 32,179 N.W.2d 836
• Parties: Christ ALEXOPOULOS, as Exr. of the Estate of Vasilios Diamantopoulos, decd., Respondent, v. William DAKOURAS, Appellant.
• Court: Wisconsin Supreme Court

Page 836

179 N.W.2d 836

48 Wis.2d 32

Christ ALEXOPOULOS, as Exr. of the Estate of Vasilios Diamantopoulos, decd., Respondent, v. William DAKOURAS, Appellant.

No. 134.

Supreme Court of Wisconsin.

Oct. 6, 1970.

This is an appeal from a money judgment in the circuit court for Milwaukee county granting judgment to Christ Alexopoulos, executor of the estate of Vasilios Diamantopoulos, against William Dakouras in the principal sum of $10,497.16, together with interest thereon in the sum of $3,183.40. The action arose as the result of the alleged failure of William Dakouras, hereinafter referred to as the defendant, to account for certain sums of money given to him by Vasilios Diamantopoulos, during his lifetime, pursuant to a power of attorney executed by Diamantopoulos. Diamantopoulos, referred to in the proceedings of the trial court as 'barber Bill,' was a barber of modest means in the city of Milwaukee. He lived by himself in the back of his barber shop. In 1961 he was in failing health and, as the result of complications of diabetes, he was frequently hospitalized and eventually both legs were amputated. William Dakouras was, according to the rites of the Greek Orthodox Church, the godson of Barber Bill. On June 7, 1961, Barber Bill executed a power of attorney, which gave to Dakouras:

'* * * full power and authority to do and perform all and every act and thing whatsoever required and necessary to be done as fully to all intents and purposes as I might or could do if personally present. * * *'

At the time of the execution of the power of attorney, Barber Bill had a bank account in the amount of $10,415.44. The bankbook was delivered to Dakouras, and between the date of the execution of the power of attorney and December 29, 1961, Dakouras made four withdrawals totaling $10,497.16, which completely exhausted the funds on deposit. During this period Barber Bill was living in the defendant's home and also spent considerable time in a hospital.

On March 20, 1963, Christ Alexopoulos, the plaintiff and respondent herein, was appointed by the county court of Milwaukee county as the conservator of Barber Bill's estate. Subsequent to that appointment, on March 28, 1963, Alexopoulos, a practicing attorney in Milwaukee, acting as conservator for Barber Bill, commenced a discovery proceeding for the purpose of examining William Dakouras and Dakouras' attorney, N. A. Pachefsky, in an attempt to ascertain the assets of Barber Bill and to determine what had become of the funds deposited in Barber Bill's bank account. No action was ever commenced during the period of the conservatorship, and the proceedings undertaken appear to be of a discovery nature only.

On May 24, 1963, Barber Bill died, and the plaintiff Alexopoulos was appointed executor of the estate. In October of 1964 the executor commenced an action in the circuit court alleging that Dakouras had wrongfully converted monies belonging to Barber Bill. A jury commenced on October 3, 1968. The executor's proof showed the godparent-godchild relationship between the deceased and Dakouras. Under the precepts of the Greek Orthodox Church, it is argued that this relationship created a fiduciary status. The plaintiff's case established the execution of the power of attorney, the transference to the defendant of the bankbook, and the withdrawal by Dakouras of $10,497.16. When the plaintiff rested his case, the defendant declined to present a defense but instead moved for a nonsuit. Upon the denial of that motion, he moved for a directed verdict. The plaintiff also moved for a directed verdict and, accordingly, the jury was dismissed and the trial judge made findings of fact and conclusions of law resulting in the judgment for the plaintiff.

The trial judge concluded that Dakouras was an agent of the deceased and as such, even though acting under a power of attorney, he had an obligation to account for the funds received and that, in the absence of evidence of justifiable expenditures by the agent, proof of the receipt of the funds and the failure to account was sufficient to satisfy the plaintiff's burden of proof that the funds had been converted. Judgment was entered accordingly, and it was from this judgment that the appeal was taken.

Brady, Pachefsky & Sullivan, Milwaukee, Jerome F. Pogodzinski, Milwaukee, of counsel, for appellant.

Pfannerstill, Camp & Tyson, Wauwatosa, for respondent.

HEFFERNAN, Justice.

The inconsistency between the defenses asserted by the defendant in his brief before this court and the position taken by defendant's counsel on oral argument make the analysis of the proferred defense difficult. In the brief of the defendant it is contended that the conservatorship proceedings were res judicata in this action. Defendant appears to contend that the discovery initiated by the conservator was in fact an action for accounting and that, since some testimony was taken and receipts for some expenditures were apparently presented, the action presently brought in circuit court was barred by the earlier county court conservatorship proceedings.

It should be pointed out at the outset that res judicata was not pleaded in this action and was not raised by the defendant until his motion to dismiss at the end of the plaintiff's case. The defense of res judicata cannot be raised even where it is applicable by the mothod employed by the defendant herein. We have frequently stated that where res judicata is raised as a defense it must be pleaded and proved. In Lowe v. Laursen (1930), 201 Wis. 309, 230 N.W. 75, we pointed out that a trial court could not grant a motion to dismiss on the grounds of a former adjudication or res judicata and that, if the defendant wishes to interpose that defense, it must be pleaded and proved as an affirmative defense. Accordingly, we conclude that the matter of res judicata was not properly raised. Moreover, we think it apparent that defense counsel could not have meritoriously raised this defense even though the proper procedural devices had been employed, inasmuch as the earlier conservatorship discovery proceedings did not rise to the dignity of an action but was a part of the conservator's function in marshalling the assets.

The trial judge herein properly characterized the earlier discovery proceedings when he stated:

'This was no more than a discovery proceeding, and an incomplete one at that. Decedent died within two months thereafter. Nothing was adjudicated, there was no judgment. No one's rights were determined in that proceeding.'

This conclusion of the trial judge comports with this court's statement in Cohan v. Associated Fur Farms, Inc. (1952), 261 Wis. 584, 598, 53 N.W.2d 788, 795:

"A final valid judgment on the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action; identity of the thing sued for, of the causes of action, of the parties to the action, and of the quality or capacity in which the parties sue or are sued is essential to the application of the doctrine.' 50 C.J.S. Judgments § 598, p. 16.'

We conclude, therefore, in accordance with well established principles that, there being no former action and no judgment growing out of the conservator's discovery proceedings, res judicata is not applicable as a defense herein even if it were raised by a proper affirmative pleading.

In fairness to the attorney who presented the oral argument, not the author of the brief, the defense of res judicata was abandoned at oral argument. Rather, counsel at oral argument asserted the defense that the circuit court was without jurisdiction to hear the accounting because at the time of the commencement of the action in circuit court the conservatorship had not been terminated in the probate branch of the county court and was not in fact terminated until two years after the commencement of the circuit court action.

It should also be pointed...