McCaffery v. Garrett

Decision Date04 April 2023
Docket Number2021AP715
PartiesEstate of Hugh F. McCaffery, Sr., by its Personal Representative Hugh F. McCaffery, Jr., Plaintiff-Appellant, v. Gilbert Garrett, Roxanne Garrett, Shirley Martin, George Aiken, Wendy Thayer, Harjit K. Sohpaul, Resham Sohpaul, Portal Properties, LLC and Pivitol Partners, LLC, Defendants-Respondents.
CourtCourt of Appeals of Wisconsin

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from judgments of the circuit court for Rusk County: Cir. Ct. No. 2019CV87, STEVEN P. ANDERSON, Judge.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).


¶1 The Estate of Hugh McCaffery, Sr., appeals summary judgments entered in favor of Gilbert Garrett, Roxanne Garrett, Shirley Martin, George Aiken, Wendy Thayer, Harjit Sohpaul, Resham Sohpaul, and Portal Properties, LLC.[1] The Estate contends that the circuit court erred by dismissing several of its claims against these parties. We reject all of the Estate's arguments except for its argument that the court erred by granting summary judgment on its claim for conversion of personal property claim against Martin.[2]We therefore affirm in part, reverse in part, and remand for further proceedings.[3]


¶2 The following facts are undisputed for purposes of this appeal. McCaffery Sr. and his brother owned a farm ("the Farm") in Rusk County, Wisconsin, that was allegedly worth $225,000 as of September 2013. Near the end of that month, the two brothers signed a contract agreeing to eventually sell the Farm to Gilbert for only $110,200. The contract contained a number of covenants, including a covenant that "[t]he following personal property is included with the premises," which was then followed by a handwritten note: "As is." At the time of the contract, both McCaffery Sr. and Gilbert were associated with an organization known as the Institute for the Study of Human Awareness, Inc. (ISHA) and its leader, Ishwar Puri.[4]

¶3 According to the complaint, McCaffery Sr "conditioned" the sale of the Farm on Gilbert's "assurances that the [F]arm was being purchased for Ishwar Puri and ISHA." ISHA apparently wanted the Farm "to construct a conference center complex" and "the Dera Hall." The complaint further alleged that Gilbert agreed: (1) that he would hold title to the Farm "as trustee for ISHA" until it repaid him the purchase price; and (2) "[t]hat if ISHA followed through with [its] commitments and paid [him] back …, [a]ll the land would then revert to ISHA."

¶4 Gilbert subsequently assigned his right to purchase the Farm to Pivitol Partners, LLC, of which he and his wife, Roxanne were the only members.

In November 2013, McCaffery Sr. and his brother conveyed the Farm to Pivitol Partners via warranty deed. Sometime thereafter, Pivitol Partners changed its name to Portal Properties, LLC.

¶5 Despite the sale, McCaffery Sr. continued to live on the Farm for two more years, until mid-November 2015, when he began end-of-life care in a nursing home "due to terminal cancer." On November 24, 2015, McCaffery Sr. executed a number of legal documents, including a new will, naming Martin and Gilbert as executors of McCaffery Sr.'s estate, and authorizations that changed the joint owner of one of his bank accounts. McCaffery Sr. died four days later.

¶6 Around the time of McCaffery Sr.'s death, his son, Hugh McCaffery, Jr., observed several individuals removing some of McCaffery Sr.'s personal property from the Farm including firearms, computers and files. McCaffery Jr. filed a report with the Rusk County Sheriff's Office, alleging that people had stolen his father's personal property. However, the sheriff's office concluded that the dispute was a civil matter, and it declined to get involved. Thereafter, additional items were removed from the Farm at the direction of Portal Properties. Portal Properties eventually contracted with an auction service to sell McCaffery Sr.'s remaining personal property on October 1 2016.

¶7 Meanwhile, McCaffery Jr. petitioned for the administration of McCaffery Sr.'s estate. McCaffery Jr. was later appointed as the personal representative of the Estate after the circuit court found that McCaffery Sr.'s November 2015 will was invalid, because two of the witnesses were beneficiaries of the will. McCaffery Jr. then commenced an action on behalf of the Estate, seeking the return of allegedly stolen personal property or, alternatively, the stolen property's cash value. The Estate voluntarily dismissed that case in 2019 after some of the defendants, including Gilbert and Martin, were dismissed and the Estate's appeal of that decision was unsuccessful.

¶8 In October 2019, the Estate commenced this action. The Estate alleged that Gilbert, Portal Properties, and Martin unlawfully disposed of, or took, McCaffery Sr.'s personal property. In addition, the Estate claimed that Martin had stolen money from McCaffery Sr.'s Fidelity investment account and Pennsylvania State Employees Credit Union (PSECU) bank accounts. The Estate also alleged that Gilbert had violated his "assurances" to McCaffery Sr. by selling the Farm in 2018. With respect to Roxanne, the Estate alleged that she had executed the deed that transferred the Farm from Portal Properties to several individuals, including Aiken, Thayer and the Sohpauls. The Estate also asserted claims against those individuals, claiming they knew of the Estate's claims "for fraud in the inducement of the sale of the McCaffery Farm" and that their deed to the Farm should be cancelled.

¶9 All of the defendants later filed motions to dismiss or, alternatively, for summary judgment. At a hearing on those motions, the circuit court first granted Aiken's, Thayer's and the Sohpauls' motion for summary judgment. In doing so, the court concluded that they were good faith purchasers of the Farm and, as such, they could not be "divest[ed] … of their title to the property." The court also granted Martin's motion for summary judgment, concluding that she did not steal, convert or "otherwise fraudulently acquire[]" McCaffery Sr.'s personal property or his financial accounts.

¶10 Next, the circuit court granted Roxanne's motion for summary judgment because it could not "find any allegations nor any evidence in the record which seemed to indicate that Roxanne Garrett was responsible for any … fraud."

Likewise, the court concluded that the complaint failed to adequately allege a claim of fraud in the inducement against either Gilbert or Portal Properties, and the court therefore granted summary judgment on those claims as well. The court also granted Gilbert summary judgment on the Estate's claim for the theft or conversion of McCaffery Sr.'s personal property because the claim was barred by collateral estoppel.[5] The court determined, however, that the Estate could proceed with its claim against Portal Properties regarding the ownership and disposal of McCaffery Sr.'s personal property because there were genuine issues of material fact as to the rightful owner of that property.

¶11 The Estate now appeals. Additional facts will be provided as necessary below.


¶12 We review a circuit court's summary judgment decision de novo, employing the same methodology as the circuit court. Chapman v. B.C. Ziegler & Co., 2013 WI.App. 127 ¶2, 351 Wis.2d 123, 839 N.W.2d 425. Our "[s]ummary-judgment analysis is a two-step process." Id. First, we must determine whether the complaint states "a proper claim for relief" and "whether the answer disputes the facts that purport to underlie that claim." Id. (citation omitted). If the pleadings join issue on a proper claim for relief, we must then determine "whether there are any genuine issues of disputed facts that are material to the complaint's claim." Id.

¶13 Summary judgment must be granted 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) (2021-22).[6] Inferences to be drawn from the summary judgment materials are viewed in the light most favorable to the party opposing the motion. Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶23, 241 Wis.2d 804, 623 N.W.2d 751.

I. Claims against Gilbert Garrett
A. Fraud in the inducement

¶14 The Estate argues that the circuit court erred by granting Gilbert summary judgment on the Estate's fraud in the inducement claim.[7] The Estate contends that its complaint "clearly states a claim for fraud in the inducement" and that there are genuine issues of material fact as to the elements of that claim.[8] ¶15 To state a claim for fraud in the inducement, a plaintiff must allege that: (1) the defendant made a factual representation; (2) the factual representation was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; (5) the plaintiff believed the statement to be true and relied on it to his or her detriment; and (6) the untrue representation occurred before the formation of a contract. See Kaloti Enters. v. Kellogg Sales Co., 2005 WI 111, ¶¶12, 30, 283 Wis.2d 555, 699 N.W.2d 205. The plaintiff must also comply with the heightened pleading standards in Wis.Stat. § 802.03(2). See Kaloti Enters., 283 Wis.2d 555, ¶21.

¶16 Wisconsin Stat. § 802.03(2) provides that "[i]n all averments of fraud or...

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