Harris v. Kritzik, 91-0705
| Decision Date | 07 January 1992 |
| Docket Number | No. 91-0705,91-0705 |
| Citation | 480 N.W.2d 514,166 Wis.2d 689 |
| Parties | Lynette HARRIS, Plaintiff-Appellant, d v. Stanley KRITZIK, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert E. Sutton of Sutton & Kelly of Milwaukee.
On behalf of the defendant-respondent, the cause was submitted on the briefs of Thomas L. Smallwood and Steven T. Botzau of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
Lynette Harris appeals from a judgment dismissing her complaint for compensatory and punitive damages arising from Stanley Kritzik's alleged wrongful interference with her expected inheritance from David Kritzik, Stanley's father (the "decedent"). The circuit court order underlying the judgment granted Stanley's motion to dismiss the complaint because it was filed after the applicable two-year statute of limitations had run and because the complaint failed to state a claim for which relief can be granted. We affirm on the basis that the alleged facts do not support a claim for wrongful interference with an expected inheritance.
Harris' complaint alleges that she and the decedent, between December 1980 and June 1987, enjoyed a continuous, non-marital relationship in which she provided the decedent with "all of the services and companionship of a wife," that he treated her as such, and "on a number of occasions propos[ed] marriage to [Harris]." Harris alleges that as a consequence of their relationship, she refrained from other romantic relationships and ceased her pursuit of a career as a model and motion picture actress. Harris alleges that in consideration for her companionship, her role as a wife, and the forbearance of her career pursuits, the decedent repeatedly represented and promised that "[Harris] would receive $5,000,000 from his estate at the time of his death."
Harris' complaint further alleges that commencing June 1987, Stanley embarked upon a course of action that ultimately caused her separation from the decedent. Stanley's conduct included monitoring and restricting her and the decedent's activities so as to prevent interaction. Stanley also allegedly defamed Harris to his father by calling her a prostitute and stating that she was afflicted with a venereal disease. Stanley also allegedly told his father that Harris stole from him and engaged in other unlawful conduct. This activity, the complaint alleges, was calculated to persuade and influence the decedent to leave Harris nothing in his will. Harris concludes that Stanley's cumulative acts constituted a wrongful and malicious interference with her expected inheritance.
Since the matter of the statute of limitations raised by Stanley in the circuit court and on appeal may be dispositive of Harris' claim, we look to the undisputed facts of the complaint to determine whether, as a matter of law, Harris commenced the action after the statute of limitations expired. Borello v. U.S. Oil Co., 130 Wis.2d 397, 404, 388 N.W.2d 140, 143 (1986). An appellate court is not bound by a circuit court's conclusions of law when the facts are undisputed and decides the matter de novo. See First Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
The complaint states that Stanley's intentional and malicious interference with Harris' claimed right of expected inheritance started in June of 1987. However, the record does not reflect when this conduct ceased, nor does it reflect when Harris discovered or should have discovered the contents of the decedent's will. 3 Since Stanley's argument that Harris' complaint falls outside the two-year statute of limitations 4 is undeveloped, In re Balkus, 128 Wis.2d 246, 255 n. 5, 381 N.W.2d 593, 598 n. 5 (Ct.App.1985), and unsubstantiated by references to the record, we need not address it. Keplin v. Hardware Mut. Casualty Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323 (1964), reh'g denied, 24 Wis.2d 319, 130 N.W.2d 3 (1964).
The circuit court granted Stanley's motion to dismiss Harris' claim for failure to state a claim upon which relief can be granted. Section 802.06(2)(f), Stats. "The purpose of a motion to dismiss for failure to state a claim is to test the sufficiency of the complaint." Evans v. Cameron, 121 Wis.2d 421, 426, 360 N.W.2d 25, 28 (1985). When judging the complaint, the facts pleaded are deemed to be true. Id. Moreover, in light of the policy of liberal construction of the pleadings, "a claim will be dismissed only if 'it is quite clear that under no conditions can the plaintiff recover.' " Id. (citation omitted).
Harris alleges in her complaint that Stanley interfered with her inheritance. The elements of this cause of action have never before been defined in Wisconsin. We adopt Restatement (Second) of Torts, sec. 774B (1977), relied upon in Anderson v. McBurney, 160 Wis.2d 866, 875, 467 N.W.2d 158, 161 (Ct.App.1991), review denied. This restatement, entitled Intentional Interference with Inheritance or Gift, provides:
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.
The elements of a cause of action for intentional interference of an expected inheritance are: (1) an existence of the plaintiff's expectancy; (2) that the defendant intentionally interfered with that expectancy; (3) that the conduct of the defendant, in and of itself, is tortious--e.g., fraud, defamation, bad faith, or undue influence; 5 (4) that there exists a reasonable certainty that the testator would have left a particular legacy had he or she not been persuaded by the defendant's tortious conduct; 6 and (5) existence of damages. See, e.g., Nemeth v. Banhalmi, 99 Ill.App.3d 493, 55 Ill.Dec. 14, 425 N.E.2d 1187, 1191 (1981). Without an examination of the facts as they relate to the first three elements, we focus on the dispositive element--the existence of a reasonable certainty of a particular legacy.
The complaint, according it the liberal construction to which it is entitled, alleges a verbal agreement between the decedent and Harris whereby Harris would confer connubial favors upon the decedent in exchange for his promise to leave her $5,000,000 in his will. The relationship between the parties, and more particularly the consideration for the decedent's promise, was contractual sex. Although the complaint does not specifically allege this, we can draw no other reasonable inference from the words "services and companionship of a wife" in the context of the facts alleged within the complaint and Harris' contention that the verbal agreement existed. Moreover, the complaint alleges no services independent of the sexual relationship or that Harris' services enhanced the decedent's estate.
This state recognizes the right of unmarried cohabitants to "raise claims based upon unjust enrichment following the termination of their relationships where one of the parties attempts to retain an unreasonable amount of the property acquired through the efforts of both." Watts v. Watts, 137 Wis.2d 506, 532-33, 405 N.W.2d 303, 314 (1987). 7 "[P]ublic policy does not necessarily preclude an unnamed cohabitant from asserting a contract claim against the other party to the cohabitation so long as the claim exists independent of the sexual relationship and is supported by separate consideration." Id. at 529, 405 N.W.2d at 313. Harris' services or consideration for the decedent's promise were merely meretricious. Harris' complaint alleged no facts which support the element of a reasonable expectancy of a legacy. 8
We conclude that the complaint fails to state a basis for which relief can be granted for intentional or malicious interference with Harris' expected inheritance. Harris had no reasonable certainty of a particular legacy.
Judgment affirmed.
I agree with the majority that public policy, as recognized by Watts v. Watts, 137 Wis.2d 506, 529, 405 N.W.2d 303, 313 (1987) (...
To continue reading
Request your trial
-
Tikalsky v. Friedman
...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......
-
Fell v Rambo
...v. Morris, 871 P.2d 380, 384 (N.M. Ct. App. 1994); Firestone v. Galbreath, 616 N.E.2d 202, 203 (Ohio 1993); Harris v. Kritzik, 480 N.W.2d 514, 517 (Wis. Ct. App. 1992).18 So far, at least eleven jurisdictions have expressly adopted the tort of intentional interference with inheritance or gi......
-
Hollywood v. First Nat. Bank of Palmerton
...Doughty v. Morris, 117 N.M. 284, 871 P.2d 380 (App. 1994); King v. Acker, 725 S.W.2d 750 (Tex. App.1987); Harris v. Kritzik, 166 Wis.2d 689, 480 N.W.2d 514 (App.1992). ¶ 11 Pennsylvania is among five states that recognize a similar cause of action. However, unlike Restatement section 744B, ......
-
State v. Young, 2010AP2559–CR.
...entrapment argument because it is undeveloped and unsubstantiated by any reference to the trial record. See Harris v. Kritzik, 166 Wis.2d 689, 694, 480 N.W.2d 514 (Ct.App.1992). In his very brief appellate argument, Young glancingly argues that Jay's phone calls induced him to possess cocai......
-
After Beckwith: an Update on the Interference With Inheritance Tort in California
...(1849) 22 Vt. 50); West Virginia (Barone v. Barone (W.Va. 1982) 294 S.E.2d 260); and Wisconsin (Harris v. Kritzik (Wis.Ct.App. 1992) 480 N.W.2d 514). The District of Columbia has also recognized the tort (In re Ingersoll Trust (D.C. 2008) 950 A.2d 672).8. See, e.g., Barclay v. Castruccio (M......
-
Tortious Interference With Inheritance
...v. Acker, 725 S.W.2d 750 (Tex.App. 1987); West Virginia: Barone v. Barone, 294 S.E.2d 260 (W.Va. 1982); Wisconsin: Harris v. Kritzik, 480 N.W.2d 514 (Wis.App.), review granted, 485 N.W.2d 412 (Wis. 1992). States that specifically do not recognize tortious interference with inheritance or ot......