Debra K. Sands v. John R. Menard, Jr. ( 2017 )


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    2017 WI 110
    SUPREME COURT       OF   WISCONSIN
    CASE NO.:            2012AP2377 & 2015AP870
    COMPLETE TITLE:      Debra K. Sands,
    Plaintiff-Appellant-Petitioner,
    v.
    John R. Menard, Jr., Menard Thoroughbreds, Inc.,
    Webster Hart as Trustee of the John R. Menard,
    Jr. 2002 Trust and Related Trusts, Angela L.
    Bowe as Trustee of the John R. Menard, Jr. 2002
    Trust and Related Trusts and Alphons Pitterle as
    Trustee of the John R. Menard , Jr. 2002 Trust
    and Related Trusts,
    Defendants-Respondents,
    Midwest Manufacturing Co., Wood Ecology Inc.,
    Countertops Inc., Team Menard Inc., Menard
    Engine Group, Menard Competition Technologies
    LTD, MC Technologies Inc., Menard Engineering
    LTD, UltraMotive LTD and Merchant Capital LLC,
    Defendants,
    Menard, Inc.,
    Defendant-Respondent-Cross Petitioner.
    ------------------------------------------------
    Debra K. Sands,
    Plaintiff-Appellant-Cross-Respondent-
    Petitioner,
    v.
    John R. Menard, Jr. and Menard Thoroughbreds,
    Inc.,
    Defendants-Respondents-Cross-
    Appellants,
    Webster Hart as Trustee of the John R. Menard,
    Jr. 2002 Trust and Related Trusts, Angela L.
    Bowe as Trustee of the John R. Menard, Jr. 2002
    Trust and Related Trusts, Alphons Pitterle as
    Trustee of the John R. Menard , Jr. 2002 Trust
    and Related Trusts, Midwest Manufacturing Co.,
    Wood Ecology Inc., Countertops Inc., Team Menard
    Inc., Menard Engine Group, Menard Competition
    Technologies LTD, MC Technologies Inc., Menard
    Engineering LTD, UltraMotive LTD
    and Merchant Capital LLC,
    Defendants,
    Menard, Inc.,
    Defendant-Respondent-Cross-Appellant-
    Cross Petitioner.
    REVIEW OF A DECISION OF THE COURT OF APPEALS
    Reported at 
    372 Wis. 2d 126
    , 
    887 N.W.2d 94
                                    PDC No: 
    2016 WI App 76
    - Published
    OPINION FILED:           December 29, 2017
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:           September 12, 2017
    SOURCE OF APPEAL:
    COURT:                 Circuit
    COUNTY:                Eau Claire
    JUDGE:                 Paul J. Lenz
    JUSTICES:
    CONCURRED:
    DISSENTED:
    CONCURRED/DISSENTED:   ABRAHAMSON, J. concurs and dissents, joined by
    A.W. BRADLEY, J. (opinion filed).
    NOT PARTICIPATING:
    ATTORNEYS:
    For     the       plaintiff-appellant-cross-respondent-petitioner,
    there were briefs filed by Charles K. Maier, Daniel R. Shulman,
    Richard C. Landon, and           Gray,   Plant,   Mooty,   Mooty & Bennett,
    P.A., Minneapolis, Minnesota, with whom on the briefs were Mel
    C. Orchard, III, and The Spence Law Firm, LLC, Jackson, Wyoming.
    There was an oral argument by Daniel R. Shulman.
    For             the     defendant-respondent-cross-appellant-cross
    petitioner, there were briefs filed by G. Richard White and Weld
    Riley, S.C., Eau Claire, with whom on the briefs were Michael D.
    Freeborn, Brian P. Norton, Andrew C. Nordahl, and Freeborn &
    Peters, LLP, Chicago, Illinois.              There was an oral argument by
    Brian P. Norton.
    For the defendants-respondents, there was a brief by G.
    Richard White and Weld Riley, S.C., Eau Claire, with whom on the
    brief were Todd Wind and Fredrikson & Byron, P.A., Minneapolis,
    Minnesota.          There was an oral argument by Todd Wind.
    2
    For the defendants-respondents-cross-appellants, there was
    a brief filed by there was a brief filed by G. Richard White and
    Weld   Riley,   S.C.,   Eau   Claire,       with   whom   on   the   briefs   were
    Michael D. Freeborn, Brian P. Norton, Andrew C. Nordahl, and
    Freeborn & Peters, LLP, Chicago, Illinois.
    3
    
    2017 WI 110
                                                               NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    Nos.    2012AP2377 & 2015AP870
    (L.C. No.   2008CV990)
    STATE OF WISCONSIN                       :            IN SUPREME COURT
    Debra K. Sands,
    Plaintiff-Appellant-Petitioner,
    v.
    John R. Menard, Jr., Menard Thoroughbreds,
    Inc., Webster Hart as Trustee of the John R.
    Menard, Jr. 2002 Trust and Related Trusts,
    Angela L. Bowe as Trustee of the John R.
    Menard, Jr. 2002 Trust and Related Trusts and
    Alphons Pitterle as Trustee of the John R.
    Menard, Jr. 2002 Trust and Related Trusts,
    FILED
    Defendants-Respondents,                        DEC 29, 2017
    Midwest Manufacturing Co., Wood Ecology Inc.,                 Diane M. Fremgen
    Clerk of Supreme Court
    Countertops Inc., Team Menard Inc., Menard
    Engine Group, Menard Competition Technologies
    LTD, MC Technologies Inc., Menard Engineering
    LTD, UltraMotive LTD and Merchant Capital LLC,
    Defendants,
    Menard, Inc.,
    Defendant-Respondent-Cross
    Petitioner.
    Debra K. Sands,
    Plaintiff-Appellant-Cross-Respondent-
    Petitioner,
    v.
    John R. Menard, Jr. and Menard Thoroughbreds,
    Inc.,
    Defendants-Respondents-Cross-
    Appellants,
    Webster Hart as Trustee of the John R. Menard,
    Jr. 2002 Trust and Related Trusts, Angela L.
    Bowe as Trustee of the John R. Menard, Jr. 2002
    Trust and Related Trusts, Alphons Pitterle as
    Trustee of the John R. Menard, Jr. 2002 Trust
    and Related Trusts, Midwest Manufacturing Co.,
    Wood Ecology Inc., Countertops Inc., Team
    Menard Inc., Menard Engine Group, Menard
    Competition Technologies LTD, MC Technologies
    Inc., Menard Engineering LTD, UltraMotive LTD
    and Merchant Capital LLC,
    Defendants,
    Menard, Inc.,
    Defendant-Respondent-Cross-Appellant-
    Cross Petitioner.
    REVIEW of a decision of the court of appeals.           Affirmed.
    ¶1     PATIENCE DRAKE ROGGENSACK, C.J.         We review a decision
    of the court of appeals, affirming the circuit court's1 grant of
    summary   judgment   dismissing   Debra   Sands'   claims    and   Menard,
    1
    The Honorable Paul J. Lenz of Eau Claire County, presided.
    Nos.    2012AP2377 & 2015AP870
    Inc.'s counterclaim.           Debra Sands and John Menard, Jr., were
    involved in a romantic relationship from late 1997 to April
    2006.2     Sands alleges that from 1998 until 2006 she cohabitated
    with Menard and they engaged in a "joint enterprise" to work
    together and grow Menard's businesses for their mutual benefit.
    Menard and his affiliated entities argue that by failing to
    comply     with     Supreme    Court     Rule       20:1.8(a),       which     regulates
    business transactions between lawyers and their clients, Sands
    is   precluded      from    seeking     an       ownership    interest       in    any   of
    Menard's various business ventures.
    ¶2    We review four issues.                  First, we consider whether
    Sands has pleaded facts sufficient to establish what she styled
    as   an    unjust     enrichment       claim       under     Watts    v.     Watts,      
    137 Wis. 2d 506
    ,       
    405 N.W.2d 305
       (1987),       thereby        necessitating       a
    remand to the circuit court for a full hearing on the merits.
    Second,    we     consider    whether        the    court     of     appeals      properly
    concluded that SCR 20:1.8(a) may be raised as a defense to an
    unjust enrichment claim.           Third, we consider whether the court
    of appeals properly granted summary judgment to Sands on Menard,
    Inc.'s counterclaim for breach of fiduciary duty.                          And fourth,
    2
    Debra Sands appeals from a judgment of the court of
    appeals, affirming the circuit court's grant of summary judgment
    dismissing Sands' claims against John Menard, Jr. ("Menard"),
    Menard, Inc., and Menard Thoroughbreds, Inc. ("collectively, the
    Menard Defendants") and against the trustees of the John R.
    Menard, Jr. 2002 Trust and related trusts ("the Trustees"). The
    Menard Defendants appeal from an order affirming summary
    judgment to Sands on Menard, Inc.'s counterclaim for breach of
    fiduciary duty.
    3
    Nos.   2012AP2377 & 2015AP870
    we    consider        whether       the     court      of    appeals    properly      granted
    summary judgment to the Menard Trustees.
    ¶3        As   to    the     claim    she      has    characterized      as   a   Watts
    unjust enrichment claim, we conclude that Sands has failed to
    allege facts which, if true, would support her legal conclusion
    that       she    and      Menard    had     a    joint      enterprise     that     included
    accumulation of assets in which both she and Menard expected to
    share equally.             On the second issue, for the reasons explained
    below,      we    conclude         that     SCR    20:1.8(a)     may    guide      courts   in
    determining required standards of care generally; however, it
    may    not       be   used    as     an     absolute        defense    to   a   civil    claim
    involving an attorney.3                   And finally, we also conclude that the
    court of appeals properly granted summary judgment to Sands on
    Menard, Inc.'s counterclaim for breach of fiduciary duty, and to
    the Trustees on their motion for summary judgment dismissing
    Sands' claim.
    ¶4        Accordingly, we affirm the court of appeals.
    I.     BACKGROUND
    ¶5        Menard is the founder, president, and CEO of Menard,
    Inc., a privately held chain of home improvement stores that
    began in Eau Claire, Wisconsin.                         In November 1997, nearly 40
    years after starting his business, Menard began dating Sands, a
    lawyer licensed to practice in the state of Minnesota, who at
    3
    We do not consider whether Menard or the Menard Defendants
    waived, ratified, or may be estopped to assert Sands' alleged
    non-compliance with SCR 20:1.8(a).
    4
    Nos.   2012AP2377 & 2015AP870
    the time was directing several business ventures with her sister
    in St. Paul.      Sands claims that she moved in with Menard in the
    summer of 1998, and they became engaged later that year.                         Menard
    admits that he and Sands were engaged, but denies that they ever
    lived together.
    ¶6     During their relationship, Sands alleges she made a
    number of business and personal contributions to both Menard and
    his companies, including Menard, Inc. and Menard Thoroughbreds,
    Inc.        Although   the    parties     agree      that    Sands   made    certain
    contributions,     they      do   not   agree   as    to    the   nature    of    those
    contributions, when they began, or who was the recipient at any
    given time.      Sands describes her contributions to Menard and his
    companies as follows:
    She was Menard's life partner, social companion, and
    manager and hostess of his households.             Sands
    protected Menard from unwanted approaches by serving
    as a "gate-keeper."    She supervised his health care
    and medical needs; managed the remodeling of three
    residences;   and  advised   on   the   acquisition   of
    airplanes and their design and décor.      She provided
    ideas for new products and product lines for the
    Menard, Inc., stores, such as garden centers; and
    scouted and proposed new store locations, store
    layouts, and product displays.         She represented
    Menard, Inc., as a product buyer.     She reviewed and
    suggested changes and additions to Menard, Inc.,
    marketing plans.    She assisted with government and
    public relations. She participated in the redesign of
    store signs and logos.    She helped find new business
    and investment opportunities.     She assisted in the
    management of the Team Menard auto racing venture and
    newly-acquired businesses, including two engine design
    companies in England, a thoroughbred racing business,
    and a $400 million private equity fund. She made her
    joint enterprise with Menard her focus, which occupied
    her every moment.
    5
    Nos.   2012AP2377 & 2015AP870
    ¶7     Sands claims that Menard repeatedly promised her that
    in     return    for    these       contributions,        he     would     give    her     an
    ownership interest in his various business ventures.                                Menard
    denies ever making such promises, and states only that Sands
    provided certain legal services beginning in approximately 1997.
    ¶8     The      parties      also     disagree       as     to    whether      Sands
    performed legal work for Menard or the Menard Defendants prior
    to the beginning of their romantic relationship.                           Sands contends
    that there was never any attorney-client relationship with the
    Menard      Defendants       prior     to    1998.        Conversely,        the    Menard
    Defendants assert that Sands began providing legal services in
    October 1997, before she and Menard began dating.
    ¶9     As evidence, the Menard Defendants submitted a May 28,
    1998, invoice from Prima Group, a company owned by Sands and her
    sister, in the amount of $49,635.84.                      The invoice referenced a
    "client matter," listed as "Wisconsin Dept. of Natural Resources
    v.   Menard,     Inc."       The     invoice      further      indicated     it    was   for
    "Governmental relations & Legal services rendered Oct. 15, 1997
    – May 15, 1998."            Sands claims that the invoice was prepared at
    Menard's request, in response to his offer to pay off Sands'
    remaining student loans of $49,635.84.                    Sands claims that Menard
    told    her     to   send    the    invoice       to   Menard,     Inc.,    so    that    the
    payment would be tax deductible as a business expense.                             Menard,
    however,      claims     this      invoice    related     to     legal     services      that
    6
    Nos.   2012AP2377 & 2015AP870
    Sands provided in connection with a Wisconsin DNR investigation
    into Menard, Inc.'s disposal of wood ash.4
    ¶10     Although the parties disagree as to the nature of the
    legal       services       provided     prior      to     2003,      both   concede   that
    beginning      in     2003      Sands   began      to    provide      significant     legal
    services to Menard, Inc.5                Sands billed at an hourly rate of
    $145, and Menard, Inc. paid Sands a total of $152,105 for seven
    invoices.
    ¶11     In early 2004, Sands assisted in the creation of a
    private equity fund ("the Fund").                    Steve Hilbert, a businessman
    with       money    management      experience          and   a    long-time   friend    of
    Menard's,          began   to    meet   with       Menard     to     discuss   the    Fund.
    According to Sands, Menard asked her to review documentation
    used to create the Fund.                 Menard, Inc., however, asserts that
    from at least January 2005 through October 2005, Menard, Inc.
    had retained Sands as its outside legal counsel to represent it
    in the Fund transaction.
    4
    A similarly questionable transaction involving race car
    driver Robby Gordon began in September 1998.         The record
    reflects that Menard, Inc. paid Sands $3,000 on September 21,
    1999, for her work on the Gordon transaction.     Sands concedes
    that she performed some work as Menard's business advisor——not
    lawyer——but states that the payment was actually a reimbursement
    for wedding planning expenses. Sands v. Menard, 
    2016 WI App 76
    ,
    ¶¶9-10, 
    372 Wis. 2d 126
    , 
    887 N.W.2d 94
    .
    5
    The parties disagree as to whether Sands ever provided
    legal services to Menard personally. According to Sands, Menard
    himself was never a client.
    7
    Nos.      2012AP2377 & 2015AP870
    ¶12       Menard       alleges       that       Sands        was    responsible           for
    negotiating           the   terms    of    the       transaction         with     Hilbert,       in
    addition        to      reviewing        and     editing       the        Fund        transaction
    documents.        Sands states that she was never asked and never did
    create invoices for her work for Menard, in part because she
    believed        her    efforts      were     part     of     her    and    Menard's          "joint
    enterprise."            It was not until her relationship with Menard
    ended in 2006 that Menard instructed her to provide itemized
    invoices for all legal services for which she had not been paid,
    dating back to 2003.               Sands then submitted 190 separate invoices
    for   work       performed         between     February        2003       and     April      2006,
    representing 7,487.10 hours of legal work at $145 per hour, for
    a total fee of $1,085,629.50.
    ¶13       Sands       met   with     Menard      and    Pete       Liupakka,        Menard,
    Inc.'s CFO, to discuss the invoices in October 2006.                                    Liupakka
    believed that the number of hours reflected on the invoices was
    excessive.            Nevertheless,        Menard,      Inc.       offered       to    pay    Sands
    $961,518——the amount claimed in the invoices minus payments that
    Menard,     Inc.       believed     Sands      had    already       received.           However,
    Menard, Inc. made receipt of this payment conditioned on Sands
    signing     a    one-page         "release     of    all     claims"       that       included    a
    waiver of any "quasi-marital claims."                          Sands refused to sign,
    prompting Menard, Inc. to offer an additional $100,000.                                       Sands
    again refused, and Menard, Inc. rescinded its offer to pay any
    portion of the fees reflected in the invoices.
    8
    Nos.    2012AP2377 & 2015AP870
    ¶14   On November 3, 2008, Sands filed suit against Menard,
    the     Menard   Defendants,       and   eleven        other       parties     owned    or
    controlled       by    Menard.        She       asserted          claims    for     Unjust
    Enrichment, Implied Contract, Promissory Estoppel, Intentional
    Infliction       of    Emotional     Distress,        Negligent        Infliction       of
    Emotional    Distress,      Fraudulent          Misrepresentation,           Conversion,
    and Breach of Fiduciary Relationship.                      On November 19, 2009,
    Sands    filed    an   amended     complaint,        re-alleging       her     claims   of
    unjust enrichment against Menard, asserting breach of contract
    and promissory estoppel claims against Menard, and claims for
    unjust enrichment against Menard, Inc., Menard Thoroughbreds,
    Inc., and MH Private Equity Fund LLC ("MH Equity").                               A second
    amended complaint was filed on May 10, 2011, adding the Trustees
    as defendants.
    ¶15   Shortly      after     Sands        filed      her       second       amended
    complaint, the Menard Defendants discovered evidence that Sands
    had a side agreement with Hilbert, prompting accusations that
    Sands had been attempting to obtain an ownership interest or
    employment with MH Equity while she was representing them in the
    Fund    transaction.       Therefore,           on   May   25,      2011,    the    Menard
    Defendants asserted a counterclaim for breach of fiduciary duty
    under SCR 20:1.8(a).
    ¶16   On April 12, 2012, the Menard Defendants moved for
    summary judgment to dismiss all of Sands' claims by which she
    sought a portion of Menard's "net worth or assets, ownership
    interests in the Menard companies, or any part of the increase
    9
    Nos.    2012AP2377 & 2015AP870
    in value of the Menard Companies."                      The Menard Defendants argued
    that SCR 20:1.8(a) barred Sands from recovering any portion of
    Menard's         assets     or    an     ownership       interest       in   his    companies
    because     she       had     failed     to   comply     with     SCR    20:1.8(a),      which
    regulates         business       transactions          between    attorneys        and     their
    clients.
    ¶17        The Trustees also moved for summary judgment, arguing
    that Sands' theory of unjust enrichment failed as a matter of
    law because:            (1) even if Sands benefitted Menard or Menard,
    Inc.,      her        claim      would     therefore       be     against       the      Menard
    Defendants, not the Trustees; (2) she did not allege facts,
    which if true, would show any benefit conferred to the Trustees;
    and       (3)     she       failed       to    allege         facts      showing      "unjust
    circumstances."
    ¶18        Following       an    oral   ruling     on     October      12,   2012,    the
    circuit court entered summary judgment on October 22, 2012.                                  The
    court acknowledged that Sands had violated SCR 20:1.8(a),6 but
    declined         to    adopt      a    bright-line        rule     that      SCR    20:1.8(a)
    prohibits an attorney from bringing what Sands has styled as a
    Watts      unjust       enrichment        claim     regarding      past      contributions.
    Rather,         the   court      recognized       an    implicit        exception     to    SCR
    20:1.8(a), such that it does not bar an attorney from bringing
    6
    The court found that:   (1) Sands is a lawyer and was a
    lawyer at all relevant times; (2) Sands performed legal services
    for Menard and the Menard Defendants; and (3) Sands did not
    obtain a written agreement to acquire any portion of the Menard
    Defendants' assets.
    10
    Nos.    2012AP2377 & 2015AP870
    an   equitable      claim       for    contributions         provided       in   a    romantic
    relationship if:              (1) the romantic relationship predates the
    attorney-client           relationship;          and     (2) "the          legal      services
    rendered are merely ancillary or incidental to the larger joint
    enterprise of the parties."7
    ¶19     As   to    the   first        requirement,      the    court      focused         on
    whether Sands' May 28, 1998, invoice for "Governmental relations
    &    Legal      services"         established          that     her        attorney-client
    relationship began before her romantic relationship with Menard.8
    Even       accepting     as   true     Sands'    claim    that       the    invoice        was   a
    fraudulent       document       submitted       at   Menard's        request,        the    court
    stated       that   it    would       deny    relief    in    equity       due     to      Sands'
    admitted fraud regarding the invoice, which showed that she was
    in pari delicto9 with Menard and, thus, the court would "leave
    matters where they stand."10
    7
    During this hearing Judge Lenz focused on the legal
    services as opposed to Sands' general contributions because the
    proposed defense, namely, that SCR 20:1.8(a) barred Sands'
    claim, applies to attorney-client relationships and their
    attendant legal services.
    8
    See  Security   Pac.  Nat'l   Bank   v.  Ginkowski,   
    140 Wis. 2d 332
    , 339, 
    410 N.W.2d 589
    , 593 (Ct. App. 1987) (Stating
    that for the concept of the clean hands doctrine to be applied,
    "it must be shown that the alleged conduct constituting 'unclean
    hands' caused the harm from which the plaintiff now seeks
    relief.").
    9
    Latin for "in equal fault."                     Black's Law Dictionary 911
    (10th ed. 2014).
    10
    The   circuit   court   did   not                      address        the        waiver,
    ratification, or estoppel arguments.
    11
    Nos.    2012AP2377 & 2015AP870
    ¶20    Looking to the second element of the exception, the
    court found that no reasonable jury could find that Sands' legal
    services     were    "merely          ancillary         or   incidental."           Therefore,
    because     neither       exception          to     its      test     applied,      the     court
    concluded     that      Sands'        violation         of   SCR    20:1.8(a)     barred      her
    claims against the Menard Defendants.                          The court then held that
    because Sands could not recover against Menard, she could not
    recover against the Trustees.                      The circuit court then granted
    summary judgment           to the Trustees.                  Sands' claim against the
    Menard      Defendants          for     compensation            for      services     rendered
    remained.
    ¶21    Sands appealed from the order regarding the Trustees
    and petitioned for leave to appeal from the order regarding the
    Menard Defendants.              The court of appeals denied Sands' motion,
    but   stayed      her     appeal       of    the       order    regarding      the    Trustees
    pending     the   disposition           of    her       remaining       claims   in       circuit
    court.      Sands v. Menard, 
    2016 WI App 76
    , ¶21, 
    372 Wis. 2d 126
    ,
    
    887 N.W.2d 94
    .
    ¶22    After        the    circuit          court        granted     partial        summary
    judgment, Sands claimed that she was entitled to compensation
    for her non-legal services.                  In support, she submitted extensive
    documentation        of    the        various          "non-legal"       services     she     had
    provided, and for which she alleged she was entitled to receive
    compensation.        The Menard Defendants moved to strike, pointing
    to Sands' previous affidavit in which she stated that she never
    12
    Nos.    2012AP2377 & 2015AP870
    expected to be compensated for personal and family services.
    The court granted the motion.
    ¶23     Refusing to concede that her only remaining claim was
    for   compensation      for    legal    services       "at     a    rate    of    $145    per
    hour," Sands next asserted that she was entitled to the quantum
    meruit    value    of    her   legal     services,          which    she    claimed       was
    between $355 and $640 per hour.                   Again, the Menard Defendants
    moved    to   strike,    arguing      that    Sands     could       not    recover       on   a
    quasi-contract        theory   when     she      had   an    express       contract      with
    Menard to be paid $145 per hour for her legal services.                                   The
    court    agreed,      explaining     that     "even     if    [$145       per    hour]    was
    dictated by the client, Mr. Menard, this was clearly the agreed
    rate."      The circuit court distinguished unjust enrichment claims
    from quantum meruit, stating that while a plaintiff asserting a
    Watts unjust enrichment claim seeks to recover a fair portion of
    the increase in the couple's net worth, a quantum meruit claim
    seeks to recover the fair value of services performed based on a
    contract implied by law.             The dismissal of Sands' quantum meruit
    claim therefore did not affect her unjust enrichment claim.                               The
    circuit court also stated that Sands' quantum meruit claims were
    barred because of her failure to comply with SCR 20:1.8(a).
    ¶24     Sands    moved   for     summary     judgment         on    Menard,    Inc.'s
    counterclaim for breach of fiduciary duty.                          The circuit court
    granted the motion, concluding that the counterclaim was barred
    by the applicable statute of limitations and that a reasonable
    13
    Nos.    2012AP2377 & 2015AP870
    person in Menard's situation would have further investigated his
    suspicions of Sands' disloyalty at an earlier date.
    ¶25    On April 24, 2015, Sands filed a notice of appeal from
    the circuit court's final order, and Menard, Inc. cross-appealed
    from    the    order      dismissing          its     counterclaim         for    breach     of
    fiduciary duty.
    ¶26    Proceedings        at    the     court     of    appeals       involved       the
    consolidation        of   the     direct       appeal     from       the    2012    judgment
    disposing of all claims between Sands and the Trustees, and a
    direct appeal from the 2015 final judgment disposing of all
    claims between Sands, Menard, and the Menard Defendants.                                    The
    court of appeals affirmed the circuit court, but on different
    grounds.
    ¶27    Sands filed a petition for review on October 19, 2016,
    which was followed by a petition for cross-review filed by the
    Menard Defendants on November 18, 2016.                        We granted review, and
    now affirm.
    II.     DISCUSSION
    A.       Standard of Review
    ¶28    We    review   a        grant    or     denial     of    summary      judgment
    independently, applying the same standards as employed by the
    circuit court, while benefitting from the discussions of the
    court of appeals and the circuit court.                         Dufour v. Progressive
    Classic      Ins.    Co.,    
    2016 WI 59
    ,     ¶12,    
    370 Wis. 2d 313
    ,         
    881 N.W.2d 678
    ;        Preisler v. General Cas. Ins. Co., 
    2014 WI 135
    ,
    ¶16,   
    360 Wis. 2d 129
    ,    
    857 N.W.2d 136
    .      Summary         judgment    is
    14
    Nos.    2012AP2377 & 2015AP870
    appropriate in cases where there is no genuine issue of material
    fact and the moving party has established his or her right to
    judgment as a matter of law.             Wis. Stat. § 802.08(2);11 Wadzinski
    v. Auto-Owners Ins. Co., 
    2012 WI 75
    , ¶10, 
    342 Wis. 2d 311
    , 
    818 N.W.2d 819
    .      We review summary judgment submissions in the light
    most favorable to the nonmoving party.                 
    Id. B. Unjust
    Enrichment Claim
    1.   General principles
    ¶29       Sands   asserts     she    has     a    claim     against   Menard      for
    unjust enrichment.         She relies on her interpretation of Watts,
    where    we    concluded      that      public       policy     does   not        preclude
    unmarried, former cohabitants from raising "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, 
    137 Wis. 2d 506
    at 532-33.12
    11
    All subsequent references to the Wisconsin Statutes are
    to the 2009-10 version unless otherwise indicated.
    12
    Plaintiff, Sue Ann Watts, asserted five legal theories to
    support her claim:   (1) Sue Ann and James, and their children,
    constituted a "family," thus entitling Sue Ann to bring an
    action for property division under Wis. Stat. § 767.02(1)(h)
    (1985-86), and to have the court divide their property pursuant
    to Wis. Stat. § 767.255 (1985-86); (2) James's words and conduct
    estopped him from asserting the lack of a legal marriage as a
    defense under Wis. Stat. § 767.255; (3) Sue Ann and James had a
    contract, either express or implied in fact, to share equally
    the property accumulated during their relationship; (4) unjust
    enrichment; and (5) partition. The Watts court dismissed claims
    one and two, holding that divorce statutes were exclusively for
    those persons who were legally married, but concluded that all
    other legal remedies were available.       Watts v. Watts, 137
    (continued)
    15
    Nos.      2012AP2377 & 2015AP870
    ¶30     The Watts court relied on the usual legal standard for
    unjust enrichment:
    [A] claim for unjust enrichment does not arise out of
    an agreement entered into by the parties. Rather, an
    action for recovery based upon unjust enrichment is
    grounded on the moral principle that one who has
    received a benefit has a duty to make restitution
    where retaining such a benefit would be unjust.
    
    Id. at 530.
        Unjust enrichment requires proof of three elements:
    (1) a     benefit    conferred      on    the   defendant          by   the     plaintiff;
    (2) appreciation or knowledge by the defendant of the benefit;
    and (3) acceptance or retention of the benefit by the defendant
    under circumstances making it inequitable to do so.                            
    Id. at 531.
    In order to plead an unjust enrichment claim, the party seeking
    judicial     relief    must    allege      facts    that,       if      true,    would   be
    sufficient     to    satisfy    a   court       that    the     above     elements       are
    present.     In Watts, we concluded that they were.                     
    Id. at 533.
    ¶31     Watts     held    that       neither      public        policy      nor     the
    abolition     of      common-law      marriage         prohibited         an     unmarried
    cohabitant    from     asserting      a    contractual        or     quasi-contractual
    claim against another cohabitant.13                    Sue Ann Watts sued James
    Watts over their respective interests in property accumulated
    Wis. 2d 506, 511-12, 
    405 N.W.2d 305
    (1987).        We focus                              our
    analysis on the decision's holding as to unjust enrichment.
    13
    Common law marriage was abolished in Wisconsin by statute
    in 1917. Meyer v. Meyer, 
    2000 WI 132
    , ¶63 n.1, 
    239 Wis. 2d 731
    ,
    
    620 N.W.2d 382
    (Sykes, J., dissenting) (citing § 21, ch. 218,
    Laws of 1917).    Watts did not preclude the remedy of unjust
    enrichment for parties——unmarried cohabitants——who may otherwise
    have been precluded from seeking judicial relief.
    16
    Nos.    2012AP2377 & 2015AP870
    during their 12-year cohabitation.          
    Id. at 510.
           Sue Ann assumed
    James' last name as her own, and together the couple raised two
    children, who also shared the Watts name.                    They filed joint
    income tax returns and maintained joint bank accounts.                    Sue Ann
    and James purchased real and personal property together; Sue Ann
    co-signed for the loans James obtained.             
    Watts, 137 Wis. 2d at 513-14
    .
    ¶32   During this period Sue Ann managed the home front so
    that James could build Watts Landscaping.                  She was a homemaker
    who cared for their children.            She cleaned, cooked, laundered,
    shopped, ran errands, and maintained the grounds surrounding the
    parties' home.     
    Id. at 513.
         She contributed personal property
    that she owned at the beginning of the relationship, served as
    hostess for James at both social and business-related events,
    and for a time worked 20-25 hours per week at James' office,
    performing    duties   as   a    receptionist,       typist        and   assistant
    bookkeeper.     
    Id. at 513-14.
    ¶33   Sue    Ann   alleged    that    because     of     her    personal   and
    business contributions, the business and personal wealth of the
    couple increased.      
    Id. at 514.
            Following the termination of
    their relationship, however, James refused to compensate Sue Ann
    for these contributions despite his indications that she would
    share equally in the increased wealth.         
    Id. ¶34 In
    holding that Sue Ann had stated a claim for relief,
    we focused our analysis on principles of equity and fairness.
    
    Id. at 532-33.
         Specifically, we concluded that regardless of
    17
    Nos.   2012AP2377 & 2015AP870
    the     nature      of     the    relationship,     the      court    should       enforce
    contract, quasi-contract, and property rights where "one party
    keeps       all     or     most   of   the    assets    accumulated          during    the
    relationship, while the other party, no more or less 'guilty,'
    is     deprived       of    property    which      he   or    she    has      helped    to
    accumulate."         
    Id. at 526.
    ¶35    In concluding that Sue Ann had stated a claim, we
    determined it would be unjust and inequitable to allow James to
    retain the entire benefit of their joint enterprise.                          As to the
    three elements of unjust enrichment, we concluded:                         (1) Sue Ann
    contributed property and services to the relationship; (2) the
    couple's assets increased as a result of these contributions;
    and (3) James' retaining all of the assets was inequitable.
    
    Watts, 137 Wis. 2d at 533
    .
    ¶36    Subsequent to our decision in Watts, unjust enrichment
    claims in the context of unmarried cohabitants have appeared
    before Wisconsin courts on an infrequent basis.14                       Nevertheless,
    case    law       does   provide    some     guidance   on    the    scope    of    unjust
    enrichment claims and, in particular, the types of facts that
    must be pled in order to survive summary judgment.
    ¶37    In Waage v. Borer, 
    188 Wis. 2d 324
    , 
    525 N.W.2d 96
    (Ct.
    App. 1994), the court of appeals held that proof of the elements
    of unjust enrichment must be demonstrated by showing:                              (1) an
    14
    Indeed, of the 171 cases citing to Watts, only a handful
    discuss Sue Ann's unjust enrichment claim, and fewer are
    published or authored decisions.
    18
    Nos.      2012AP2377 & 2015AP870
    accumulation of assets; (2) acquired through the efforts of the
    claimant and the other party; and (3) retained by the other
    party in an unreasonable amount.                           
    Id. at 329-30.
                  At trial,
    Borer claimed money for her housekeeping efforts after Waage
    reneged on an alleged promise to marry her.                                The court concluded
    that   despite      her    cooking,          cleaning,          and     childcare       services,
    Borer failed to allege facts sufficient to meet the Watts unjust
    enrichment standard.              Specifically, the court held that only
    certain benefits will constitute "assets" or "property" for the
    purposes     of    unjust       enrichment.             "Watts          does      not   recognize
    recompense        for    housekeeping           or     other          services       unless      the
    services     are    linked       to    an     accumulation            of    wealth      or   assets
    during the relationship."                   
    Id. at 330.
                 In alleging only that
    Waage retained a benefit from Borer's uncompensated housekeeping
    efforts made in contemplation of marriage, the court concluded
    that     Borer     had     not        met     the     unjust          enrichment        standard.
    Furthermore,       the    court       explained        that      there       is    no    cause    of
    action for breaching an alleged promise to marry.
    ¶38   In    Ward    v.    Jahnke,        
    220 Wis. 2d 539
    ,            
    583 N.W.2d 656
    (Ct. App. 1998), the court of appeals reemphasized that in order
    for a plaintiff to successfully demonstrate unjust enrichment he
    or she must present proof that the assets or property acquired
    during    cohabitation          were        acquired       as    a    result       of    a   mutual
    undertaking or joint effort.                        
    Id. at 552.
                 Sandra Ward and
    Dennis Jahnke had shared an apartment for nearly four years,
    during    which     time     Ward       paid        rent    and       all     other     household
    19
    Nos.    2012AP2377 & 2015AP870
    expenses so that Jahnke could save money for a down payment on a
    house.      Jahnke eventually purchased a home, making the $11,000
    down payment and all mortgage and tax payments on the property.
    For   the    next    nine       years,    Ward      lived   in     the     home   rent-free,
    although she did pay utilities and purchased groceries.                                     All
    finances      were       kept    separate.           Upon       their    separation,        Ward
    claimed that Jahnke was unjustly enriched because he was able to
    accumulate a down payment while she paid for nearly all of their
    household expenses.              
    Id. at 544.
             She also argued that because
    she   moved       into    Jahnke's       house      and   continued        to   pay   certain
    expenses,     the     house      itself    was       an   asset        accumulated    through
    their joint efforts and retained by Jahnke in an unreasonable
    amount.      
    Id. ¶39 Applying
         the      elements       of    unjust        enrichment     to   the
    facts,      the     court       of   appeals        affirmed      the     circuit     court's
    conclusion that Jahnke was unjustly enriched by Ward's efforts
    during the period of cohabitation in which she paid rent and all
    other household expenses.                 
    Id. at 550.
                "We agree that under
    these      facts,    Ward's      assumption         of    the    cost     of    the   couple's
    living expenses was a benefit conferred on Jahnke which resulted
    in an accumulation of the asset — the [$11,000] down payment."
    
    Id. However, the
    court reversed the circuit court's conclusion
    that Jahnke had been unjustly enriched following the purchase of
    the home.15         "Not only does Ward's claim lack a single Watts
    15
    At the circuit court, Ward had received a jury award of
    $45,000, or one-half of the equity in the house.         Ward v.
    Jahnke, 
    220 Wis. 2d 539
    , 544, 
    583 N.W.2d 656
    (Ct. App. 1998).
    20
    Nos.      2012AP2377 & 2015AP870
    factor, her testimony as to their financial arrangements shows
    only that she and Jahnke were cohabitants who divided their
    household    expenses    in    such   a    way      that    it    made       it   easy   to
    maintain     separate     finances        and       avoid        commingling          their
    individual resources."        
    Id. at 550-51.
    ¶40     In so holding, the appeals court stated that it does
    not read the list of factors outlined in Watts as a checklist,
    but rather as "requiring a plaintiff to put forth facts which
    indicate a shared enterprise and some form of proof that the
    assets or property in dispute were 'acquired through the efforts
    of both.'"        
    Id. at 547-48
    (quoting 
    Watts, 137 Wis. 2d at 533
    )
    (emphasis    in    original).16       It       is   only     after       a    party      can
    demonstrate the existence of a joint enterprise that the court
    may award equitable relief.           See Ulrich v. Zemke, 
    2002 WI App 246
    , ¶12, 
    258 Wis. 2d 180
    , 
    654 N.W.2d 458
    .
    The proper legal standard requires the court to . . .
    analyze the character of the parties' relationship by
    inquiring whether the relationship was a joint
    enterprise which encompassed the accumulation of
    assets.     A   court  makes   this  determination   by
    considering the total circumstances of the parties'
    relationship,   specifically   whether   the   parties'
    contributed property and services to the relationship
    producing an increase in wealth.
    16
    See, e.g., 
    Watts, 137 Wis. 2d at 533
    n.21 (listing four
    out-of-state decisions in which a cohabitant's unjust enrichment
    claim was founded on specific facts that showed a mutual
    undertaking or joint effort); 
    Ward, 220 Wis. 2d at 548
    n.3
    (describing in further detail the footnote found in Watts).
    21
    Nos.   2012AP2377 & 2015AP870
    
    Id., ¶12.17 ¶41
        Properly understood, Watts stands for a very simple
    proposition:         Wisconsin's public policy favoring marriage does
    not     prohibit         unmarried    formerly       cohabitating         couples    from
    asserting unjust enrichment claims against one another.                             
    Watts, 137 Wis. 2d at 532
    .            In such cases, the focus is on the benefit
    received      by    one    party     from    the   other     party    which    would     be
    inequitable to retain.               Boldt v. State, 
    101 Wis. 2d 566
    , 573,
    
    305 N.W.2d 133
       (1981).         Therefore,     the    proper    focus     is   on
    property accumulated, not on the type of personal relationship
    that existed between the parties.                  Stated otherwise, a claim for
    unjust      enrichment      may     lie    when    two   people    work    together      to
    acquire property "through the efforts of both," regardless of
    their personal relationship.                
    Watts, 137 Wis. 2d at 533
    .
    ¶42     That James and Sue Ann Watts were romantic cohabitants
    is not central to the merits of Sue Ann's unjust enrichment
    claim.      For example, if James, instead, had a joint enterprise
    to accumulate wealth with his sister, mom or next door neighbor
    who provided necessary child care, domestic services and part-
    time office help, an unjust enrichment claim by that person
    would      require   the     same    proof    as    Watts      required   of   Sue   Ann.
    Watts      simply        provided    that     cohabitation         between     unmarried
    17
    In Ulrich v. Zemke, 
    2002 WI App 246
    , 
    258 Wis. 2d 180
    , 
    654 N.W.2d 458
    , the court concluded that where a couple maintained a
    house together, raised four children, shared living expenses,
    and continually acquired real and personal property, they had
    acted as a joint enterprise.
    22
    Nos.    2012AP2377 & 2015AP870
    romantic partners is not a bar to an otherwise valid claim of
    unjust    enrichment.            It     did    not    provide    that     the    romantic
    relationship created the claim for relief.                       
    Watts, 137 Wis. 2d at 532
    -33.
    2.     Sands' pleadings
    ¶43        To     plead     facts     sufficient      to     support    an        unjust
    enrichment          claim,    Sands     must     demonstrate:        (1)    a     benefit
    conferred on Menard by Sands; (2) appreciation or knowledge by
    Menard    of    the     benefit;18      and    (3)    acceptance    or    retention       of
    assets arising from the benefit by Menard under circumstances
    making it inequitable for him to retain all of those assets.
    Stated     otherwise,           Sands'        unjust     enrichment        claim        must
    demonstrate that, viewed in their entirety, the contributions
    she made to a joint enterprise in which she and Menard were
    mutually       engaged       resulted    in    an    accumulation    of    wealth       that
    Menard unfairly retained.                
    Ward, 220 Wis. 2d at 552
    (explaining
    the importance of a mutual undertaking or joint effort).
    ¶44        Based on her allegations in the pleadings, which we
    accept as true for purposes of summary judgment, Sands made a
    variety    of       contributions        to    Menard,   both    professionally          and
    personally.           Professionally,          she   offered     business       and    legal
    advice, political consultation services, marketing and research
    expertise.           She was directly involved in decisions regarding
    18
    For purposes of our discussion it                         is undisputed that
    Menard was aware of Sands' contributions.                         We therefore focus
    our analysis on the first and third prongs.
    23
    Nos.    2012AP2377 & 2015AP870
    Menards' Indycar and NASCAR racing sponsorships, and she advised
    Menard      on    numerous       corporate     matters.             In    their     personal
    relationship,19 Sands supervised Menard's health care and medical
    needs, planned and prepared meals, and assisted with gardening
    and other household tasks.                Sands advised about refurbishment
    and redecoration of three personal residences, acted as hostess
    of Menards' households, and provided both personal and family
    advice.       Sands contends that as a result of these and other
    contributions she is entitled to judgment in an amount equal to
    the   fair       and    reasonable     share      of   the    property,       wealth,    and
    increased         net     worth      acquired          by     Menard        during     their
    cohabitation.           We disagree.
    ¶45     First, Watts and the cases that followed make clear
    that unjust enrichment by a former cohabitant is founded on the
    premise      of    a    mutual    undertaking          or    joint       enterprise    which
    results      in    an    accumulation     of      assets      in     which    the    parties
    expected to share equally but which are unfairly retained by one
    party.      In Watts, we emphasized that as a direct result of Sue
    Ann's      efforts,      James'   business        grew      and    the    parties'    assets
    increased.
    19
    We again clarify that unjust enrichment claims do not
    require an intimate relationship; the emphasis is on the
    property acquired.    However, to the extent that Sands claims
    these personal contributions allowed Menard to focus his
    attention on his companies, they are relevant to her unjust
    enrichment claim, namely, whether any assets were acquired
    "through the efforts of both." See 
    Ward, 220 Wis. 2d at 549
    .
    24
    Nos.    2012AP2377 & 2015AP870
    ¶46   In Ward, the court distinguished between the couple's
    initial, forty-four month cohabitation, during which time they
    lived in Ward's apartment where the $11,000 down payment was
    accumulated, and the latter period during which they lived in
    the house purchased by Jahnke.              The court affirmed the circuit
    court's     finding   that    Ward's    assumption           of    most   household
    expenses during the initial forty-four months was "predicated on
    a mutual undertaking to accumulate a down payment on a house."
    
    Ward, 220 Wis. 2d at 550
    .           "The length of time this arrangement
    persisted, with undisputed testimony that Ward assumed nearly
    all of the couple's living expenses, coupled with the fact that
    Jahnke then made a substantial down payment on a house lends
    credibility to Ward's claim that this was a shared undertaking."
    
    Id. ¶47 However,
    the court concluded that Ward had failed to
    satisfy the unjust enrichment standard for the period following
    the purchase of the home.            First, Jahnke had paid all closing
    costs   associated    with    the    house,    and    all     mortgage     and   tax
    payments thereafter.         Second, although Ward did the cooking,
    cleaning,    and   laundry,    as    well     as    paid     for    groceries    and
    utilities while living in the house, these contributions were
    offset by the fact that she did not pay rent, and that Jahnke
    took care of all maintenance work.                 Finally, the evidence did
    not support the assertion of a joint enterprise after the house
    had been purchased.      Each maintained separate bank accounts and
    had individual insurance policies.                 Each purchased, paid for,
    25
    Nos.   2012AP2377 & 2015AP870
    and maintained his or her own vehicle.                      They never held joint
    savings or checking accounts, purchased items together, took on
    any   joint       debt,    or   loaned      each    other    money.      
    Ward, 220 Wis. 2d at 543
    .           Given these facts, the court concluded, "Ward
    cannot claim that her assumption of the costs of the utilities
    and groceries in a shared living arrangement, while living rent
    free, entitles her to share in the equity of a house titled in
    another's name.           Evidence of a mutual undertaking is completely
    lacking."         
    Id. at 552.
             Comparing the facts and outcomes in
    Watts and Ward with the facts alleged by Sands, we conclude that
    Sands' and Menard's relationship more closely resembles that of
    Ward and Jahnke after the purchase of Jahnke's home.
    ¶48    First, at the time Sands and Menard met, Menard, Inc.
    had   been    a    business     for    almost    forty   years,    and   Menard   was
    already a multi-millionaire.                Sands, meanwhile, was a graduate
    of law school operating at least three separate businesses with
    her sister in St. Paul, Minnesota.                   Therefore, while Menard's
    net worth was undoubtedly higher than Sands', both parties had
    sufficient financial means and business acumen.                       We therefore
    reject any comparison of Sands' contributions to those of Sue
    Ann Watts, who helped James Watts begin and grow his landscaping
    business,     or    to     those      of   Sandra   Ward,    whose    contributions
    allowed Dennis Jahnke to save $11,000 for the down payment on a
    house.      In each of those cases, the parties had very little, and
    it was only through their joint efforts that their assets or
    26
    Nos.    2012AP2377 & 2015AP870
    property increased.        Sands, however, did not support Menard as
    he built his empire; he already had it when they met.
    ¶49    Second, we note the inherent differences between how
    Sue Ann and James Watts conducted themselves, and how Sands and
    Menard      conducted         themselves       during          their       respective
    relationships.          Sands    has   not    alleged          that    during    their
    relationship she and Menard commingled finances, filed joint tax
    returns,    or   made    joint    purchases        of    real     and/or      personal
    property.     Sands did not obligate herself to any business or
    personal debt Menard incurred.           Given these undisputed facts, we
    conclude that Sands and Menard were not engaged in a "joint
    enterprise" as required under Watts.20
    ¶50    Although     we     conclude      that      there     was    no      "joint
    enterprise,"     we   nonetheless      turn   to     Watts'     three-part       unjust
    enrichment analysis to evaluate the underlying merits of Sands'
    unjust enrichment claim.            Under the first prong, Sands must
    allege sufficient facts which, if true, would prove that her
    contributions     were    material      to    increasing         Menard's       wealth.
    Here, despite the litany of contributions she made, see, e.g.
    20
    Once again, the precise nature of the underlying
    relationship is not the linchpin of our analysis.  However, we
    do consider the circumstances of the relationship relevant in
    helping us determine whether the elements of unjust enrichment
    have been met, particularly the second element under the Waage
    test, Waage v. Borer, 
    188 Wis. 2d 324
    , 329-30, 
    525 N.W.2d 96
    (Ct. App. 1994) (requiring "(1) an accumulation of assets;
    (2) acquired through the efforts of the claimant and the other
    party and (3) retained by the other party in an unreasonable
    amount.").
    27
    Nos.   2012AP2377 & 
    2015AP870 supra
       ¶6,    we    cannot   conclude    that   Sands'      contributions        were
    "material" given Menard's wealth and the success of his company
    when the parties met.          In particular, although Sands has listed
    a series of business transactions in which she "participated" or
    "assisted,"      she    has    alleged    no   facts    from    which    we    could
    conclude that her contributions caused an increase in Menard's
    assets or property.
    ¶51        We are similarly disinclined to conclude that Sands
    has pled sufficient facts which, if true, would demonstrate that
    Menard's acceptance or retention of her contributions would be
    inequitable under the circumstances.              In particular, Sands must
    demonstrate that the benefits she conferred to Menard are not
    offset by the benefits she derived from him.                   First, the record
    indicates      that    Sands   enjoyed    an   expansive       lifestyle      as   the
    companion of a wealthy man.21             Second, unlike the plaintiffs in
    Watts or Ward, Sands did receive compensation for some of her
    services.        Over the course of their eight-year relationship,
    Sands was paid $49,635.84 for the balance of her student loans,22
    $3,000 to compensate her for "wedding expenses," and $152,105
    for various legal services.
    21
    For example, the record reflects that Sands and Menard
    took multiple boating and skiing trips, vacations to St. Martin,
    London, and Italy, and that Menard gifted Sands with a Ford
    Mustang for Christmas in 2005. They went to horse races, NASCAR
    events, and fashion shows, and met prominent political figures
    at that time.
    22
    As referenced above, it is disputed whether this payment
    was for her student loans or for legal services in regard to the
    DNR matter.
    28
    Nos.    2012AP2377 & 2015AP870
    ¶52    Sands        argues,          however,          that         because         Menard
    "repeatedly"       promised          her    that     she     would       obtain     a     certain
    ownership       interest        in    Menard,        Inc.,     and       because     she       made
    contributions       "fully       and       faithfully        and    in    reliance        on    the
    promises and representations of Menard," it would be inequitable
    to deny her an ownership interest in his property.                                Given that a
    specific        agreement        is        unnecessary           under       Watts,        Sands'
    allegations that she was promised a certain ownership interest
    are not persuasive.             In short, we conclude that Sands has failed
    to     allege     facts     which,         if   true,      would        support     her     legal
    conclusion that she and Menard had a shared enterprise that
    included accumulation of assets in which both she and Menard
    expected to share equally.23
    C.    Rules of Professional Conduct
    ¶53    In light of our conclusion that Sands has failed to
    allege facts which, if true, would support what she has styled
    as a Watts unjust enrichment claim, analyzing whether her claim
    also     is     barred     by    SCR       20:1.8(a)       may     not     seem     necessary.
    Nonetheless, because the question of whether a Supreme Court
    Rule can be used as an absolute defense against an attorney in a
    civil action is an important issue, we address it here.                                   For the
    reasons stated below, we conclude:                         (1) the court of appeals
    23
    We do not suggest that a former cohabitant may never
    plead facts sufficient to establish a "material benefit"
    unjustly obtained by a wealthy partner. We simply hold that in
    this case, Sands did not plead facts sufficient to meet the
    criteria for unjust enrichment set forth in Watts.
    29
    Nos.    2012AP2377 & 2015AP870
    erred in holding SCR 20:1.8(a) created an absolute bar to Sands'
    unjust enrichment claim; and (2) although SCR ch. 20 may not be
    used as an absolute defense to a civil claim where an attorney
    is   a    party,     SCR   20:1.8(a)       may    guide    courts       in   determining
    whether those standards of care that generally are required of
    lawyers have been met.
    1.    General principles
    ¶54   Supreme Court Rule ch. 20 sets forth the regulations
    governing professional conduct of attorneys licensed to practice
    law in the State of Wisconsin.                   Attorneys not admitted to the
    State Bar of Wisconsin may be subject to the disciplinary action
    in   Wisconsin       "if   the     lawyer       provides    or     offers     any   legal
    services in the state."             SCR 20:8.5(a).            We have the exclusive
    authority to define the "practice of law."                         See Seitzinger v.
    Cmty.     Health     Network,      
    2004 WI 28
    ,    ¶39,      
    270 Wis. 2d 1
    ,    
    676 N.W.2d 426
    .         We have previously concluded that deciding whether
    one engaged in the "practice of law" is determined on a case-by-
    case basis.          State ex rel. Junior Ass'n of Milwaukee Bar v.
    Rice, 
    236 Wis. 38
    , 53, 
    294 N.W. 550
    , 556 (1940).
    ¶55   At   all    times    relevant       to   the    current       litigation,
    attorneys licensed outside of Wisconsin who were acting as in-
    house counsel in this state were not "practicing law" for the
    purposes of bar admission.                See Mostkoff v. Bd. of Bar Exam'rs,
    
    2005 WI 33
    , ¶19, 
    279 Wis. 2d 249
    , 
    693 N.W.2d 748
    (concluding
    Michigan attorney's legal services as corporate counsel were not
    the "practice of law" for purposes of admission to the State Bar
    30
    Nos.    2012AP2377 & 2015AP870
    of Wisconsin).         Therefore, because at that time an attorney who
    was    not    licensed        to        practice      in    Wisconsin,          but    who    was
    nonetheless         serving        as     in-house         counsel    for        a    Wisconsin
    corporation, was not eligible for bar admission based solely on
    in-house counsel services, he also was not subject to regulation
    by the State Bar of Wisconsin.
    ¶56    As to all attorneys practicing law in this state, we
    have    previously        ruled         that     "[v]iolations        of        the    Code    of
    Professional         Conduct        are        determined       only        by        means    of
    disciplinary        action."             Foley-Ciccantelli           v.    Bishop's          Grove
    Condo.,      
    2011 WI 36
    ,      ¶2,     
    333 Wis. 2d 402
    ,       
    797 N.W.2d 789
    .
    Indeed, as stated in preamble [20]24 to the Rules in effect
    during Sands' alleged cohabitation:
    Violation of a rule should not itself give rise to a
    cause of action against a lawyer nor should it create
    any presumption in such a case that a legal duty has
    been breached. In addition, violation of a rule does
    not necessarily warrant any other nondisciplinary
    remedy, such as disqualification of a lawyer in
    pending litigation. The rules are designed to provide
    guidance to lawyers and to provide a structure for
    regulating conduct through disciplinary agencies.
    They are not designed to be a basis for civil
    liability. Furthermore, the purpose of the rules can
    be subverted when they are invoked by opposing parties
    as procedural weapons. The fact that a rule is a just
    basis   for   a  lawyer's   self-assessment,  or   for
    sanctioning a lawyer under the administration of a
    24
    The preamble was amended in 2007 to add the following
    concluding sentence:      "Nevertheless, since the rules do
    establish standards of conduct by lawyers, a lawyer's violation
    of a rule may be evidence of breach of the applicable standard
    of conduct."
    31
    Nos.    2012AP2377 & 2015AP870
    disciplinary authority, does not imply that an
    antagonist in a collateral proceeding or transaction
    has standing to seek enforcement of the rule.
    ¶57    The court of appeals has also endorsed the use of the
    Rules of Professional Conduct as guidelines or principles in
    civil litigation.            Gustafson v. Physicians Ins. Co., 
    223 Wis. 2d 164
    , 176-78, 
    588 N.W.2d 363
    (Ct. App. 1998).                                In Gustafson, the
    plaintiffs' attorney in a medical malpractice case also agreed
    to represent the interests of the plaintiffs' subrogated health
    insurer      in    exchange        for    one-third         of    the       health    insurer's
    recovery.         
    Id. at 168.
          After a jury rendered a verdict in favor
    of the defendants, the plaintiffs' attorney reached a settlement
    agreement      with       the     defendants     whereby         the     plaintiffs         waived
    their     right      to      appeal      the   judgment          in      exchange      for       the
    defendants' agreement not to seek taxable costs against them.
    
    Id. at 169.
             However, the plaintiffs' attorney never consulted
    with    the       subrogated        insurer      about       the        settlement         and    it
    expressly left the defendants the option of taxing costs against
    the subrogated insurer, which they did.                               
    Id. The subrogated
    insurer      appealed        on   the    basis      that    the       judgment       was    unfair
    because of the attorney's misconduct, whereupon the settlement
    was voided.        
    Id. ¶58 In
    determining whether the judgment for taxable costs
    should be reversed due to the attorney's conduct, the court of
    appeals considered several of the Rules of Professional Conduct
    as   guidelines         or   principles.            For    example,         SCR   20:1.16        was
    considered         to     determine       whether          the     plaintiffs'         attorney
    32
    Nos.   2012AP2377 & 2015AP870
    properly withdrew from representing the subrogated insurer; SCR
    20:1.2 was considered to determine whether the attorney should
    have informed the subrogated insurer of the proposed settlement;
    and SCR 20:1.7 was reviewed to determine whether the attorney
    had an impermissible conflict of interest when he negotiated the
    settlement.     
    Id. at 176-78.
          Taxable costs were reversed because
    the attorney failed to adequately protect his client.                         
    Id. at 182.
    2.     SCR 20:1.8(a) general principles
    ¶59   Supreme    Court     Rule   20:1.8(a)        applies    to    financial
    conflicts of interest that may arise when an attorney "enter[s]
    into    a    business    transaction        with    a     client     or    knowingly
    acquire[s] an ownership, possessory, security or other pecuniary
    interest     adverse    to   a   client."     SCR       20:1.8(a).        During   the
    relevant time period, SCR 20:1.8(a) provided:
    A lawyer shall not enter into a business transaction
    with a client or knowingly acquire an ownership,
    possessory, security or other pecuniary interest
    adverse to the client unless:
    (1) the transaction and terms on which the lawyer
    acquires the interest are fair and reasonable to the
    client and are fully disclosed and transmitted in
    writing to the client in a manner which can be
    reasonably understood by the client;
    (2) the client is given a reasonable opportunity
    to seek the advice of independent counsel in the
    transaction; and
    (3) the client consents in writing thereto.
    33
    Nos.    2012AP2377 & 2015AP870
    ¶60       Supreme      Court     Rule      20:1.8(a)       is    grounded         in     the
    concern that "[a] lawyer's legal skill and training, together
    with the relationship of trust and confidence between lawyer and
    client, create the possibility of overreaching when the lawyer
    participates in a business, property or financial transaction
    with a client."         See Model Rules of Prof'l Conduct r. 1.8 cmt.
    (Am. Bar Ass'n 2015).              The rule applies to all attorney-client
    relationships, and includes transactions in which an attorney
    seeks    an    ownership        interest        in    the     client's       business        as
    compensation     for    his     or   her    legal      services.           See    
    id. The existence
    of an attorney-client relationship "depends upon the
    intent   of    the   parties       and    is    a    question       of    fact."        In    re
    Disciplinary Proceedings Against Kostich, 
    2010 WI 136
    , ¶16, 
    330 Wis. 2d 378
    , 
    793 N.W.2d 494
    .
    3.   SCR 20:1.8(a) and Sands
    ¶61       Both   the    circuit        court      and     the    court       of   appeals
    applied SCR 20:1.8(a) to Sands' Watts unjust enrichment claim.
    The circuit court formulated a two-part exception to Menard's
    proposed      bright-line       rule,     namely,      that    SCR       20:1.8(a)      is   an
    absolute      defense   unless       two       conditions      are       met:         (1)    the
    attorney and client had a romantic relationship that predated
    their attorney-client relationship; and (2) the legal services
    rendered by the attorney were "merely ancillary or incidental"
    to the larger joint enterprise.                     The court of appeals went one
    step further, holding that a violation of SCR 20:1.8(a) is an
    absolute bar to recovery.                Sands, 
    372 Wis. 2d 126
    , ¶38.                   As to
    34
    Nos.   2012AP2377 & 2015AP870
    both dispositions, we disagree, and conclude that while Supreme
    Court Rules may guide courts in determining required standards
    of    care    generally,     they        may   not    be   employed     as    an     absolute
    defense in a civil action involving an attorney.
    ¶62     As Sands has repeatedly pointed out, the preamble to
    the    Supreme       Court       Rules     clearly      demonstrates         that     alleged
    violations are to be determined in disciplinary proceedings, not
    civil litigation.            "The Preamble demonstrates that the purpose
    of the rules is not to provide remedies outside the realm of
    professional discipline."                  Foley-Ciccantelli, 
    333 Wis. 2d 402
    ,
    ¶173 (Roggensack, J., concurring).                         See also     Nauga, Inc. v.
    Westel       Milwaukee     Co.,     Inc.,       
    216 Wis. 2d 306
    ,       318       n.5,   
    576 N.W.2d 573
    , (Ct. App. 1998) ("Violation of a rule should not
    give    rise    to    a    cause     of    action      nor    should     it     create     any
    presumption that a legal duty has been breached.                             The rules are
    not designed to be a basis for civil liability.").
    ¶63     The Menard Defendants argue that they have not invoked
    SCR    20:1.8(a)      as     a     basis       for    civil    liability,       to     obtain
    disciplinary sanctions, or as a procedural weapon.                                   Instead,
    they look to the language of the amended preamble "because it
    establishes the standards of conduct with which Sands needed to
    comply if she wanted to enforce such an arrangement."                                 Similar
    to Sands, the Menard Defendants ground their argument in the
    language of Foley-Ciccantelli.                   However, while Sands focuses on
    the language cited above, the Menard Defendants focus on ¶86,
    which reads, in part:
    35
    Nos.    2012AP2377 & 2015AP870
    The resolution of the issue of disqualification in the
    present case is thus guided by our prior case law and
    the   precepts   of   the    Supreme   Court   Rules   of
    Professional   Conduct   for   Attorneys   regarding   an
    attorney's duties to former clients. Appellate courts
    have often cited the Rules of Professional Conduct for
    guidance    in   non-disciplinary     cases,    including
    disqualification cases.
    Foley-Ciccantelli, 
    333 Wis. 2d 402
    , ¶86.
    ¶64   The           arguments      of    the      Menard          Defendants       are     not
    persuasive.            Foley-Ciccantelli           arose          from    a    disqualification
    motion, not from a claim that the lawyer's conduct violated SCR
    ch. 20.      
    Id., ¶91. ¶65
      Accordingly,            we   conclude          that    SCR       ch.   20    does    not
    apply here for at least two reasons.                         First, Supreme Court Rules
    that regulate the ethical practice of law in Wisconsin cannot be
    used    as   an    absolute        defense       in     a    civil       action     in    which    an
    attorney     is        a    party.        In     that       regard,       we    clarify        Foley-
    Ciccantelli       to        so   hold.         Second,      Sands'        provision       of    legal
    services was not the practice of law, as we defined the practice
    of     law   in    Mostkoff;           therefore,           she    was        not   entitled       to
    membership        in       the   State    Bar     of     Wisconsin            during     the    times
    relevant to her Watts claim.                     Accordingly, she was not subject
    to SCR 20:1.8(a).
    D.   Menard, Inc.'s Counterclaim
    ¶66   The court of appeals concluded that the accrual date
    for Menard, Inc.'s counterclaim for breach of fiduciary duty was
    September 1, 2005, the date of closing for the Fund transaction.
    As we consider the court of appeals' conclusion, we note that
    36
    Nos.   2012AP2377 & 2015AP870
    the question presented is whether on September 1, 2005, Menard,
    as the president and CEO of Menard, Inc., knew or should have
    known that Sands' loyalty was questionable.                       Hansen v. A.H.
    Robins,     Inc.,    
    113 Wis. 2d
       550,   560,    
    335 N.W.2d 578
      (1983)
    (concluding that a claim accrues "on the date the injury is
    discovered or with reasonable diligence should be discovered,
    whichever occurs first.").              To answer that question, we consider
    Menard's personal characteristics.
    ¶67    Menard was a skilled businessman who had been involved
    in countless business transactions in his individual capacity
    and as the CEO of Menard, Inc.                  On September 1, 2005, he had
    enough information to be required to investigate further.                      As he
    said in regard to the closing of the transaction that created
    the Fund, "it was very difficult to tell whose side [she] was
    on, was she on [Hilbert's] side or my side."                    He also said that
    he then believed that Sands was lying to him.                           Although the
    degree of certainty of suspicion is variable, here, Menard was
    not   a   novice.      He    was   in    charge   of    a   multi-billion      dollar
    corporation.        He also had outside advisors by his side.                    His
    suspicion triggered the obligation to investigate further, and
    he had plenty of assistance to do so.                  See Goff v. Seldera, 
    202 Wis. 2d 600
    , 611, 
    550 N.W.2d 144
    (Ct. App. 1996) (citing Awve v.
    Physicians Ins. Co., 
    181 Wis. 2d 815
    , 825, 
    512 N.W.2d 216
    (Ct.
    App. 1994)).        Yet, he did nothing until after Sands sued him.
    ¶68    Even with the tolling rule of Donaldson v. West Bend
    Mut. Ins. Co., 
    2009 WI App 134
    , ¶¶23-24, 
    321 Wis. 2d 244
    , 773
    37
    Nos.    2012AP2377 & 2015AP870
    N.W.2d 470, which makes the effective filing date November 3,
    2008,       Menard,      Inc.'s    counterclaim         was     well     outside        the
    applicable statute of limitations.25
    E.   Claim Regarding Trustees
    ¶69     Sands also appeals the court of appeals' dismissal of
    her claim against the Trustees, in which the court of appeals
    affirmed the circuit court's grant of summary judgment to the
    Trustees based on its earlier ruling granting partial summary
    judgment to the Menard Defendants.                  The court stated, "since
    there is no avenue to recover against the Menard principal,
    there cannot be recovery against the [Trustees]."
    ¶70     Before us, Sands' brief-in-chief asserted only what
    she    styled    as   a    Watts   unjust      enrichment       claim,    and      in   her
    combined       response    brief   regarding      the    Menard        Defendants       and
    Trustees, Sands stated, "This Appeal is Solely a Watts v. Watts
    Unjust Enrichment Claim."
    ¶71     Watts, as we have discussed above in some detail, does
    not preclude an unmarried cohabitant from bringing an unjust
    enrichment       claim    on    equitable      grounds    when     the       cohabitants
    engaged in a joint enterprise to work together to accumulate
    wealth and one cohabitant has retained the accumulated wealth in
    an    unjust    amount.        Watts   provides    no    support       for    an   unjust
    enrichment claim made by a third party because unjust enrichment
    25
    We concur with the conclusion of the court of appeals on
    this matter, and largely adopt their factual narration as our
    own. Sands, 
    372 Wis. 2d 126
    , ¶¶53-59.
    38
    Nos.    2012AP2377 & 2015AP870
    claims    are     premised           on    two   people     working       towards         a     joint
    accumulation of property in which they both expect to share
    equally.
    ¶72   However,           we        understand      Sands'        claim       against        the
    Trustees     to     be     made       under      the     theory     that        they      are      the
    repositories       of    significant             property        that    once       belonged        to
    Menard.      Therefore, if Sands were to prevail on what she has
    styled as a Watts unjust enrichment claim against Menard, she
    would need to reach the Trustees to garner a share of Menard's
    property that they hold.                    We offer no opinion on her theory of
    recovery from the Trustees because she has not prevailed on her
    unjust enrichment claim against Menard.                             Accordingly, she can
    have   no    interest       in        any     property      that    the       Trustees          hold.
    Therefore,        Sands'     claim          against      the     Trustees        was      properly
    dismissed.
    III.      CONCLUSION
    ¶73   There were four issues argued before this court on
    appeal.      First,        we    considered            whether    Sands       has    pled       facts
    sufficient to show unjust enrichment.                          We conclude that she has
    not.      Sands has failed to demonstrate facts which, if true,
    would support her legal conclusion that she and Menard had a
    joint enterprise that included accumulation of assets in which
    both she and Menard expected to share equally.
    ¶74   Second,       we        considered        whether    the     court      of    appeals
    properly     concluded          that       SCR    20:1.8(a)       may    be     raised        as   an
    absolute defense to what Sands has styled as a Watts unjust
    39
    Nos.   2012AP2377 & 2015AP870
    enrichment claim arising from a long-term romantic relationship.
    We conclude that SCR 20:1.8(a) may guide courts in determining
    required standards of care generally; however, it may not be
    employed as an absolute defense to a civil claim involving an
    attorney.
    ¶75     And    finally,    we   also   conclude    that   the    court    of
    appeals properly granted summary judgment to Sands on Menard,
    Inc.'s counterclaim for breach of fiduciary duty, and to the
    Trustees on their motion for summary judgment dismissing Sands'
    claim.
    By    the     Court.—The   decision    of   the   court   of    appeals   is
    affirmed.
    40
    No.    2012AP2377 & 2015AP870.ssa
    ¶76     SHIRLEY S. ABRAHAMSON, J.                   (concurring in part and
    dissenting in part).            Unlike the majority, I conclude that Debra
    Sands pleaded sufficient facts to establish an unjust enrichment
    claim    under    Watts    v.    Watts,   
    137 Wis. 2d 506
    ,         
    405 N.W.2d 303
    (1987), against John R. Menard, Jr.1                         I would remand Sands'
    unjust enrichment claim against Menard to the circuit court for
    trial.     Accordingly,         I    dissent    from    the     majority's    contrary
    conclusion.
    I
    ¶77     I begin by setting forth the applicable standard of
    review, which is muddied by the majority.                         The supreme court
    reviews a grant of summary judgment independently, applying the
    same standards as employed by the circuit court.                             Dufour v.
    Progressive Classic Ins. Co., 
    2016 WI 59
    , ¶12, 
    370 Wis. 2d 313
    ,
    
    881 N.W.2d 678
    .       "There is a standard methodology which a trial
    court follows when faced with a motion for summary judgment."
    Green    Spring    Farms        v.   Kersten,    
    136 Wis. 2d 304
    ,    314,   
    401 N.W.2d 816
    (1987).
    ¶78     "The first step of that methodology requires the court
    to examine the pleadings to determine whether a claim for relief
    has been stated."         Green Spring 
    Farms, 136 Wis. 2d at 315
    ; see
    1
    I agree with the following conclusions of the majority:
    (1) SCR 20:1.8(a) may guide courts in determining required
    standards of care for attorneys generally, but may not be used
    as an absolute bar in a civil claim involving an attorney; (2)
    the court of appeals properly granted summary judgment to Sands
    on Menard, Inc.'s counterclaim for breach of fiduciary duty; and
    (3) the court of appeals properly granted summary judgment to
    the Menard Trustees. Majority op., ¶3.
    1
    No.    2012AP2377 & 2015AP870.ssa
    also       Moya    v.   Aurora     Healthcare,     Inc.,       
    2017 WI 45
    ,   ¶15,    
    375 Wis. 2d 38
    ,          
    894 N.W.2d 405
    .            This    step        tests     the    "legal
    sufficiency of the complaint."                   Kaloti Enters., Inc. v. Kellogg
    Sales Co., 
    2005 WI 111
    , ¶11, 
    283 Wis. 2d 555
    , 
    699 N.W.2d 205
    .
    All facts alleged in the complaint, as well as all reasonable
    inferences         from    those    facts,   are    accepted          as    true,     and   the
    complaint is given a liberal construction.                       Ollerman v. O'Rourke
    Co., 
    94 Wis. 2d 17
    , 24, 
    288 N.W.2d 95
    (1980).
    ¶79        "If a claim for relief has been stated, the inquiry
    then shifts to whether any factual issues exist."                              Green Spring
    
    Farms, 136 Wis. 2d at 315
    .              Summary judgment is only appropriate
    "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              The evidence is viewed in the light most
    favorable to the non-moving party, and all reasonable inferences
    are drawn in favor of the non-moving party.                                 Burbank Grease
    Servs., LLC v. Sokolowski, 
    2006 WI 103
    , ¶40, 
    294 Wis. 2d 274
    ,
    
    717 N.W.2d 781
    .             It is not the job of the court on summary
    judgment to "decide issues of credibility, weigh the evidence,
    or choose between differing but reasonable inferences from the
    undisputed         facts."         Fortier   v.    Flambeau        Plastics         Co.,    
    164 Wis. 2d 639
    , 665, 
    476 N.W.2d 593
    (Ct. App. 1991).
    II
    2
    All subsequent references to the Wisconsin Statutes are to
    the 2009-10 version unless otherwise indicated.
    2
    No.    2012AP2377 & 2015AP870.ssa
    ¶80    I conclude that the facts alleged in Sands' complaint,
    taken as true (as we must), adequately state a claim for unjust
    enrichment against Menard.3
    ¶81    An unjust enrichment claim has three elements: "(1) a
    benefit    conferred      on     the    defendant        by    the   plaintiff,      (2)
    appreciation or knowledge by the defendant of the benefit, and
    (3) acceptance or retention of the benefit by the defendant
    under circumstances making it inequitable for the defendant to
    retain the benefit."           
    Watts, 137 Wis. 2d at 531
    .
    ¶82    Watts     did       not    change         the     elements      of     unjust
    enrichment.     Nor      did     it    create     a     sub-category        of    unjust
    enrichment     claim.           It     merely     recognized         that     unmarried
    cohabitants may state a claim for unjust enrichment where one
    party     retains   an    unreasonable          amount        of   property      acquired
    through the efforts of both.            As the Watts court explained:
    Many courts have held, and we now so hold, that
    unmarried cohabitants may 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.
    In   this  case,   the  plaintiff  alleges   that   she
    contributed both property and services to the parties'
    relationship.    She claims that because of these
    contributions the parties' assets increased, but that
    she was never compensated for her contributions. She
    further alleges that the defendant, knowing that the
    plaintiff   expected   to   share  in   the    property
    accumulated, "accepted the services rendered to him by
    the plaintiff" and that it would be unfair under the
    3
    The operative complaint in the instant case is Sands'
    Second Amended Complaint.
    3
    No.   2012AP2377 & 2015AP870.ssa
    circumstances to allow him to retain everything while
    she receives nothing.
    
    Watts, 137 Wis. 2d at 532
    -33.
    ¶83    Additionally,       nothing    in     Watts    limits    an    unjust
    enrichment claim to two persons.              A claim for unjust enrichment
    may involve more than two persons so long as all those involved
    worked towards the joint accumulation of property or wealth in
    which they all expected to share.                  Any contrary suggestion by
    the majority is unsupported.          See majority op., ¶71.
    ¶84    In   Watts,   the     plaintiff      alleged     that   during    her
    relationship with the defendant, she contributed both property
    and services to the parties' relationship with the expectation
    that   she    would   enjoy   equally       with   the    defendant    the   wealth
    accumulated through their joint efforts.                  
    Watts, 137 Wis. 2d at 513-14
    .      The plaintiff alleged:
    During their relationship, the plaintiff contributed
    childcare and homemaking services, including cleaning,
    cooking, laundering, shopping, running errands, and
    maintaining the grounds surrounding the parties' home.
    Additionally,   the   plaintiff   contributed  personal
    property to the relationship which she owned at the
    beginning of the relationship or acquired through
    gifts or purchases during the relationship.         She
    served as hostess for the defendant for social and
    business-related   events.      The  amended  complaint
    further asserts that periodically, between 1969 and
    1975, the plaintiff cooked and cleaned for the
    defendant and his employees while his business, a
    landscaping service, was building and landscaping a
    golf course.
    From 1973 to 1976, the plaintiff worked 20-25 hours
    per week at the defendant's office, performing duties
    as a receptionist, typist, and assistant bookkeeper.
    From 1976 to 1981, the plaintiff worked 40-60 hours
    per week at a business she started with the
    defendant's sister-in-law, then continued and managed
    4
    No.   2012AP2377 & 2015AP870.ssa
    the business        herself   after   the     dissolution     of   that
    partnership.
    
    Watts, 137 Wis. 2d at 513-14
    .
    ¶85    The Watts court held that the plaintiff stated a claim
    for unjust enrichment against her former cohabitant:
    In   this  case,   the  plaintiff  alleges   that   she
    contributed both property and services to the parties'
    relationship.    She claims that because of these
    contributions the parties' assets increased, but that
    she was never compensated for her contributions. She
    further alleges that the defendant, knowing that the
    plaintiff   expected   to   share  in   the    property
    accumulated, "accepted the services rendered to him by
    the plaintiff" and that it would be unfair under the
    circumstances to allow him to retain everything while
    she receives nothing.     We conclude that the facts
    alleged are sufficient to state a claim for recovery
    based upon unjust enrichment.
    
    Watts, 137 Wis. 2d at 533
    .
    ¶86    In   the   instant     case,   Sands    pleaded     extensive      facts
    spanning approximately eight pages of her complaint supporting
    her unjust enrichment claim against Menard.                  Sands alleges in
    her complaint as follows:
    [D]uring the eight-year period of Sands's cohabitation
    and engagement with Menard, the substantial and
    continuing efforts of Sands resulted directly in the
    acquisition   of   valuable   property,  wealth,   and
    substantial increase in the net worth of Menard, who
    now attempts to retain not merely an unreasonable
    amount of property, wealth, and increased net worth
    acquired through the efforts of Sands, but all of the
    property, wealth, and increased net worth acquired
    through the efforts of Sands.
    Appendix   to   Brief    of   Plaintiff-Appellant-Petitioner           Debra    K.
    Sands, Volume I, at A061.
    ¶87    Sands summarized her contributions as follows:
    Sands relied on Menard's promises, representations,
    and conduct, and devoted over eight years to working
    5
    No.    2012AP2377 & 2015AP870.ssa
    with and helping him in his business and personal
    matters.   Sands contributed to their enterprise in
    numerous ways. She was Menard's life partner, social
    companion, and manager and hostess of his households.
    Sands protected Menard from unwanted approaches by
    serving as a "gate-keeper." She supervised his health
    care and medical needs; managed the remodeling of
    three residences; and advised on the acquisition of
    airplanes and their design and décor.     She provided
    ideas for new products and product lines for the
    Menard, Inc., stores, such as garden centers; and
    scouted and proposed new store locations, store
    layouts, and product displays.         She represented
    Menard, Inc., as a product buyer.     She reviewed and
    suggested changes and additions to Menard, Inc.,
    marketing plans.    She assisted with government and
    public relations. She participated in the redesign of
    store signs and logos.   She helped find new business
    and investment opportunities.    She assisted in the
    management of the Team Menard auto racing venture and
    newly-acquired businesses, including two engine design
    companies in England, a thoroughbred racing business,
    and a $400 million private equity fund. She made her
    joint enterprise with Menard her focus, which occupied
    her every moment.
    Brief of Plaintiff-Appellant-Petitioner, Debra K. Sands 14-15.
    ¶88     Construing Sands' complaint liberally and taking all
    factual allegations as true (as the court must), I conclude that
    Sands    alleged   facts   sufficient        to    state    a   claim    for    unjust
    enrichment.
    ¶89     The majority concludes that Sands failed to adequately
    plead    unjust    enrichment     by   relying      on     inapposite    cases    and
    drawing   distinctions     that    were      not   essential      to    the    court's
    holding   in   Watts   vis-à-vis       the   plaintiff's        unjust   enrichment
    claim.
    ¶90     The     majority      relies      on     Waage      v.      Borer,     
    188 Wis. 2d 324
    , 
    525 N.W.2d 96
    (Ct. App. 1994), and Ward v. Jahnke,
    
    220 Wis. 2d 539
    , 
    583 N.W.2d 656
    (Ct. App. 1998), asserting that
    6
    No.   2012AP2377 & 2015AP870.ssa
    these cases shed light on "the types of facts that must be pled
    in order to survive summary judgment."                             Majority op., ¶36.               They
    do not.       These cases do not support the majority's position.
    ¶91    In Waage, the court of appeals held that under the
    particular facts of that case, the complainant could not recover
    on her unjust enrichment claim because "Watts does not recognize
    recompense       for       housekeeping               or    other       services        unless       the
    services      are    linked         to     an    accumulation            of    wealth        or   assets
    during the relationship."                   
    Waage, 188 Wis. 2d at 330
    .
    ¶92    Importantly, the Waage court did not conclude that the
    complainant had failed to adequately plead unjust enrichment.
    Rather, the unjust enrichment claim proceeded to trial, and the
    court    of    appeals         held       that    the       complainant         did     not       present
    sufficient       evidence            of    any        assets       accumulated          during       the
    relationship         as    a        result       of       joint    efforts:             "[Plaintiff]
    arguably alleged but did not set forth any evidence to satisfy
    [the elements of her unjust enrichment claim]. . . . [Plaintiff]
    presented absolutely no evidence of assets accumulated during
    their relationship."                
    Waage, 188 Wis. 2d at 330
    .                        Simply stated,
    Waage has nothing to say about pleading requirements.
    ¶93    The Ward case also did not analyze the sufficiency of
    the     complaint.             In     Ward,       the       question          presented       was     the
    sufficiency of the evidence produced at trial.
    ¶94    In Ward, the complainant recovered at trial her fair
    share of the down payment on the couple's house, but the court
    of    appeals       held    that          the    defendant          had       not     been    unjustly
    enriched       following        the        purchase         of     the        home.       Ward,       220
    7
    No.    2012AP2377 & 2015AP870.ssa
    Wis. 2d at 544-50.             In so holding, the court of appeals pointed
    out that the plaintiff's own trial testimony established that
    after the couple moved into the home, the couple split household
    expenses as evenly as possible, so that a reasonable finder of
    fact       could    not     find     that    the    defendant        had       been    unjustly
    enriched.          See 
    Ward, 220 Wis. 2d at 550
    -53.
    ¶95     In     addition       to     relying      on      inapposite       cases,    the
    majority misunderstands what facts were relevant to the court's
    holding      in     Watts    vis-à-vis       the    plaintiff's          unjust       enrichment
    claim.         The     majority       magnifies         differences        in     Sands'    and
    Menard's personal relationship and in the personal relationship
    of   the     parties      at   the    center       of    Watts.4         For    example,    the
    majority points out that unlike in Watts, in which the plaintiff
    helped the defendant begin and grow his landscaping business,
    Menard was already a multi-millionaire and had been a successful
    businessman         for     almost    40    years       when     Sands    and    Menard    met.
    Majority op., ¶48.
    ¶96     This reasoning suggests that the court would not have
    allowed the unjust enrichment claim in Watts to proceed if the
    4
    The majority appears to acknowledge that the joint
    accumulation of property and wealth, not the nature of the
    relationship, is the focus of the unjust enrichment claim, see
    majority op., ¶¶33-34, 41-42, 44 n.19, 49 n.20, but nonetheless,
    the majority places great emphasis on these relationship
    differences, see majority op., ¶¶31, 48-49.        The majority
    disclaims any reliance on a "checklist" of similarities with the
    specific facts of Watts, majority op., ¶40, but that is exactly
    what the majority does.     What should readers rely upon for
    future cases:    what the majority opinion says or what the
    majority opinion does?
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    No.   2012AP2377 & 2015AP870.ssa
    defendant's business had already been established and profitable
    at the time the parties cohabitated, as opposed to being built
    from scratch by the efforts of both.             Watts does not support
    this suggestion.      The fact that Menard was already successful
    does not preclude Sands' unjust enrichment claim if Menard's
    assets became more valuable as a result of the parties' joint
    efforts.
    ¶97     The   majority   also   highlights      that   "Sands   has   not
    alleged that during their relationship she and Menard commingled
    finances, filed joint tax returns, or made joint purchases of
    real and/or personal property.           Sands did not obligate herself
    to any business or personal debt Menard incurred."                  Majority
    op., ¶49.   These facts are not dispositive of unjust enrichment.
    ¶98     In Watts, we detailed certain aspects of the parties'
    relationship, but those facts were not necessary to our holding
    on the unjust enrichment issue.       We explained:
    Early in 1969, the parties began living together in a
    "marriage-like" relationship, holding themselves out
    to the public as husband and wife.       The plaintiff
    assumed   the   defendant's   surname   as   her   own.
    Subsequently, she gave birth to two children who were
    also given the defendant's surname. The parties filed
    joint income tax returns and maintained joint bank
    accounts asserting that they were husband and wife.
    The defendant insured the plaintiff as his wife on his
    medical insurance policy.    He also took out a life
    insurance policy on her as his wife, naming himself as
    the beneficiary.     The parties purchased real and
    personal property as husband and wife. The plaintiff
    executed documents and obligated herself on promissory
    notes to lending institutions as the defendant's wife.
    
    Watts, 137 Wis. 2d at 513
    .
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    No.   2012AP2377 & 2015AP870.ssa
    ¶99       None of these facts reappears in the analysis of the
    plaintiff's unjust enrichment claim.                 See 
    Watts, 137 Wis. 2d at 530-533
    .         Rather, they were relevant to the plaintiff's claim
    that       the     plaintiff,    the     defendant,        and    their     children
    constituted a "family," thus entitling her to bring an action
    for    property      division    under   Wisconsin's       marriage      dissolution
    statute.         
    Watts, 137 Wis. 2d at 514-15
    .5
    III
    ¶100 This matter is here on summary judgment.                    Although the
    majority opinion is confusing, it purports to dismiss Sands'
    unjust enrichment claim as inadequately pleaded.                    It nonetheless
    impermissibly         ventures   outside       the   pleadings     to     weigh   the
    evidence, reaching the conclusion that Sands would not prevail
    on the merits of her unjust enrichment claim.6
    5
    In support, the plaintiff relied upon a Washington court
    of appeals case with similar facts, Warden v. Warden, 
    676 P.2d 1037
    (Wash. App. 1984). The Washington court of appeals applied
    its marriage dissolution statute to divide property acquired by
    unmarried cohabitants in what was tantamount to a marital family
    except for a legal marriage.     We recognized that "Warden is
    remarkably similar on its facts to the instant case.         The
    parties in Warden had lived together for 11 years, had two
    children, held themselves out as husband and wife, acquired
    property together, and filed joint tax returns."      
    Watts, 137 Wis. 2d at 516
    .   Thus, the plaintiff in Watts pleaded similar
    facts not to support her unjust enrichment claim, but because
    she was also arguing that her relationship with the defendant
    should be considered a "family" under Wisconsin's marriage
    dissolution statute.
    6
    The majority concludes:
    [D]espite the litany of contributions she made, we
    cannot   conclude that   Sands'  contributions   were
    "material" given Menard's wealth and the success of
    his company when the parties met.     In particular,
    (continued)
    10
    No.   2012AP2377 & 2015AP870.ssa
    ¶101 In contrast, I conclude that Sands pleaded sufficient
    facts to state a claim for unjust enrichment against Menard.
    After reviewing the summary judgment record, viewing all the
    evidence in the light most favorable to Sands, and drawing all
    reasonable inferences in her favor (as I must), I would hold
    although Sands has listed a series of business
    transactions   in    which   she    "participated" or
    "assisted," she has alleged no facts from which we
    could conclude that her contributions caused an
    increase in Menard's assets or property.
    We are similarly disinclined to conclude that Sands
    has pled sufficient facts which, if true, would
    demonstrate that Menard's acceptance or retention of
    her contributions would be inequitable under the
    circumstances.   In particular, Sands must demonstrate
    that the benefits she conferred to Menard are not
    offset by the benefits she derived from him.    First,
    the record indicates that Sands enjoyed an expansive
    lifestyle as the companion of a wealthy man. Second,
    unlike the plaintiffs in Watts or Ward, Sands did
    receive compensation for some of her services.    Over
    the course of their eight-year relationship, Sands was
    paid $49,635.84 for the balance of her student loans,
    $3,000 to compensate her for "wedding expenses," and
    $152,105 for various legal services.
    Majority op., ¶50-51 (footnotes omitted).   The majority noted
    specific examples of luxuries enjoyed by Sands as Menard's
    companion   including  "multiple  boating  and   skiing  trips,
    vacations to St. Martin, London, and Italy, and . . . a Ford
    Mustang for Christmas in 2005. They went to horse races, NASCAR
    events, and fashion shows, and met prominent political figures
    at that time." Majority op., ¶51 n.21.
    Clearly, the majority reaches beyond the pleadings and has
    substituted itself as the finder of fact in order to resolve
    genuine issues of material fact in favor of Menard.      At this
    stage, it is not the court's task to "decide issues of
    credibility, weigh the evidence, or choose between differing but
    reasonable inferences from the undisputed facts."   
    Fortier, 164 Wis. 2d at 665
    .
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    No.   2012AP2377 & 2015AP870.ssa
    that genuine issues of material fact preclude summary judgment.
    I would remand Sands' unjust enrichment claim to the circuit
    court for trial.
    ¶102 For the reasons set forth, I write separately.
    ¶103 I   am    authorized   to    state   that     Justice   ANN   WALSH
    BRADLEY joins this separate writing.
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    1