Onderdonk v. Lamb

• Citation: 255 N.W.2d 507,79 Wis.2d 241
• Decision Date: 01 July 1977
• Docket Number: No. 75-355,75-355
• Parties: James O. ONDERDONK, Appellant, v. Francis LAMB et al., Respondents.
• Court: United States State Supreme Court of Wisconsin

Page 507

255 N.W.2d 507

79 Wis.2d 241

James O. ONDERDONK, Appellant, v. Francis LAMB et al., Respondents.

No. 75-355.

Supreme Court of Wisconsin.

Submitted on briefs June 2, 1977.

Decided July 1, 1977.

James O. Onderdonk (hereinafter plaintiff) commenced an action against Francis Lamb and others. The plaintiff appeals from an order sustaining a demurrer to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action.

James O. Onderdonk, pro se.

James C. Herrick and Axley, Brynelson, Herrick & Gehl, Madison, on the brief, for respondents.

CONNOR T. HANSEN, Justice.

The plaintiff became acquainted with one Edna E. E. Taylor in 1953. He and his four children rented or leased certain rooms in the Taylor residence and jointly occupied the premises with Taylor until her death in 1972. Between 1953 and 1972, the plaintiff and Taylor entered into various business arrangements, the nature and extent of which are not set forth in the record.

Upon her death in 1972, Taylor left a substantial portion of her real estate to The Edna Taylor Foundation. The plaintiff had previously been appointed as trustee of the foundation. Taylor's will further provided for the appointment of the plaintiff as executor thereof and devised one-half of the remainder of her estate to the plaintiff.

The respondents, Patricia T. Keepman and Jay P. Keepman, were the daughter and son-in-law of Taylor. The respondents, Francis Lamb and Richard J. Callaway were lawyers engaged at various times by the Keepmans and others. The respondents will hereinafter be referred to jointly as defendants.

In December 1974, the plaintiff commenced action against the defendants alleging generally that beginning in 1954, and continuing up to and after the death of Taylor, the defendants and others entered into a conspiracy to interfere with and bring about an interruption and the dissolution of the various business arrangements between the plaintiff and Taylor and to deny the plaintiff his rights as trustee, executor and devisee under the Taylor will.

The plaintiff alleged damages in the amount of $750,000 and punitive damages in the amount of $1,500,000.

The defendants demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the plaintiff was given twenty days to replead. The plaintiff appeals.

The proposition to be determined is whether the complaint sets forth facts sufficient to constitute a cause of action.

The rules governing our review on demurrer to a complaint alleging conspiracy are the same as those applicable to other actions. They have been frequently repeated. See: Int'l Found. Emp. Ben. Plans v. Brookfield, 74 Wis.2d 544, 548, 549, 247 N.W.2d 129 (1976). This court must confine itself to the face of the pleadings; the pleadings are to be liberally construed with a view to substantial justice between the parties; the pleadings are entitled to all reasonable inferences in favor thereof; and all material well-pleaded facts are taken as true. State v. Ross, 73 Wis.2d 1, 3, 4, 242 N.W.2d 210 (1976); Weiss v. Holman, 58 Wis.2d 608, 614, 207 N.W.2d 660 (1973). If the complaint states any cause of action, a demurrer thereto must be overruled. Val-Lo-Will Farms v. I. Azoff & Asso., 71 Wis.2d 642, 644, 238 N.W.2d 738 (1976).

The complaint alleges conspiracies on the part of the defendants as follows: (1) To interfere with and bring about an interruption to and dissolution of the various business arrangements and related business rights existing between the plaintiff and Taylor; (2) to deny the plaintiff his rights under a current existing and valid lease and a valid bill of sale; (3) to deny the plaintiff his various legal rights in the estate of Taylor including his rights to properly bequeathed to him; (4) to convert and to defraud the plaintiff of his rights and property, vested and future, real and personal; (5) to deny the plaintiff his rights as the trustee of The Edna Taylor Foundation and to interfere in the internal affairs of the trust; and (6) to deprive the plaintiff of his right to act as an executor in the estate.

In Radue v. Dill, 74 Wis.2d 239, 241, 246 N.W.2d 507, 509 (1976), this court set forth the definition of civil conspiracy:

" . . . In Wisconsin civil conspiracy has been defined as a combination of two or more persons by some concerted action to accomplish some unlawful purpose or to accomplish by unlawful means some purpose not in itself unlawful. Mendelson v. Blatz Brewing Co. (1960), 9 Wis.2d 487, 490, 101 N.W.2d 805. The law of civil conspiracy is further characterized in this state by the following:

" 'It is the established law of this state that there is no such thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a conspiracy but none for the conspiracy alone. In a civil action for damages for an executed conspiracy, the gist of the action is the damages.' Singer v. Singer (1944), 245 Wis. 191, 195, 14 N.W.2d 43."

See also: Dalton v. Meister, 71 Wis.2d 504, 520, 239 N.W.2d 9 (1976); Cranston v. Bluhm, 33 Wis.2d 192, 198, 147 N.W.2d 337 (1967); White v. White, 132 Wis. 121, 129, 130, 111 N.W. 1116 (1907); Martens v. Reilly, 109 Wis. 464, 473, 84 N.W. 840 (1901).

The gravamen of a civil action for damages resulting from an alleged conspiracy is thus not the conspiracy itself but rather the civil wrong which has been committed pursuant to the conspiracy and which results in damage to the plaintiff. The resultant damages in a civil conspiracy action must necessarily result from overt acts, whether or not those overt acts in themselves are unlawful. Radue, supra, 74 Wis.2d 244, 246 N.W.2d 507. Such a conclusion was reached by the federal court in Weise v. Reisner (E.D.Wis.1970), 318 F.Supp. 580, 583:

" . . . However, in an action for civil conspiracy, it is not the conspiracy, as such, that constitutes the cause of action, but the overt acts that result from it. Thus, any concomitant damage to the plaintiffs stems from the acts done in furtherance of the conspiracy, not from the conspiracy itself. See Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir. 1959)."

To state a cause of action for civil conspiracy, the complaint must allege: (1) The formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts. See: Wise v. Southern Pacific Company, 223 Cal.App.2d 50, 35 Cal.Rptr. 652, 660 (1963), and cases cited therein. The criteria are the same whether the conspiracy is based upon concerted action to accomplish some unlawful purpose or upon concerted action to accomplish some lawful purpose by unlawful means. The complaint must state what was done in the execution of the conspiracy and that the purpose of the combination was accomplished. White, supra, 132 Wis. 127, 130, 111 N.W. 1116; Martens, supra, 109 Wis. 473, 84 N.W. 840.

In 15A C.J.S. Conspiracy § 24, pp. 675-677, it is stated:

"The wrongful acts, done in pursuance of the conspiracy, which constitute the grounds or gravamen of the action, whether single or several, must be set out with the same certainty and particularity as in an ordinary civil action, against a single defendant, growing out of tortious acts of the same general character, primarily, so that the...