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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                    This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
August 29, 2012
A party may file with the Supreme Court a
Diane M. Fremgen                                                                                                      petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                             Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                      and RULE 809.62.
                                                                                                                      Cir. Ct. No.   2010CV5309
Appeal No.                                                         2011AP2154
STATE OF WISCONSIN                                                                                                    IN COURT OF APPEALS
DISTRICT II
DANIEL K. ANDERSON, LTD. CERTIFIED PUBLIC ACCOUNTANTS,
PLAINTIFF-RESPONDENT,
V.
GOOD TO GO QUICK MART, INC.,
DEFENDANT-APPELLANT,
DOMINIC ALIOTO, JR. AND CAROL ALIOTO,
DEFENDANTS.
APPEAL  from a judgment and  an order  of  the circuit court for
Waukesha County:   DONALD J. HASSIN, JR., Judge.   Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.




No.   2011AP2154
¶1                                                                                                  PER  CURIAM.    Good  to  Go  Quick  Mart,  Inc.,  appeals  from  a
judgment  and  an  order1  granting  summary  judgment  in  favor  of  Daniel  K.
Anderson, Ltd. Certified Public Accountants (DKA) on DKA’s claim for unjust
enrichment.   Good to Go contends the circuit court improperly granted summary
judgment because material facts remain in dispute or, in the alternative, it should
be allowed to raise the defense that it is an innocent transferee for value.   We
conclude  the  court  reasonably  applied  the  theory  of  unjust  enrichment  and
properly exercised its discretion in allowing recovery to DKA.   We affirm.
¶2                                                                                                  The following facts are not in dispute.   Larry Shinabarger stole an
estimated $100,000 while working for Good to Go, a gas station and convenience
store, by falsifying daily receipts and ledgers.   Good to Go fired Shinabarger in
August 2008 and negotiated a deal by which it agreed to accept $60,000 in final
settlement of all claims.   Almost immediately, Shinabarger found a position as an
accountant with DKA, an Illinois accounting firm, and, within a few months, stole
$60,000 from DKA and used it to pay Good to Go.
¶3                                                                                                  Upon learning of the theft, DKA’s counsel informed Good to Go
that the money was stolen.   Good to Go refused to return it and DKA filed this
unjust  enrichment  action.     Concluding  that  this  essentially  was  a  case  of
“rob[bing] Peter to pay Paul,” where “Paul” was not naïve about Shinabarger, the
circuit court granted DKA’s summary judgment motion.   Good to Go appeals.
1   The notice of appeal states that Good to Go is appealing from both the August 8, 2011
order granting Anderson’s motion for summary judgment and the August 30, 2011 judgment
awarding costs.   As Good to Go’s brief raises no appellate challenges to the amount of costs, we
limit this decision to a review of the grant of summary judgment.
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No.   2011AP2154
¶4                                                                                        We review summary judgments independently, employing the same
methodology as the circuit court.   Mid Wis. Bank v. Forsgard Trading, Inc., 2003
WI App 186, ¶8, 266 Wis. 2d 685, 668 N.W.2d 830.   The summary judgment
methodology  is  well  established  and  need  not  be  repeated  here.    See,  e.g.,
Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶21-23, 241 Wis. 2d 804, 623
N.W.2d 751.   The legal standard is whether there are any material facts in dispute
that entitle the opposing party to a trial.   Id., ¶24.
¶5                                                                                        The circuit court found that, knowing all too well that Shinabarger
was a thief, Good to Go had reason to be wary when, a short while after being
fired, Shinabarger  “rolls up with  $60,000 in satisfaction of a larger debt[] he
acknowledged he had stolen … you can’t basically cover up and say I don’t want
to know where you got that money.”   The court continued:
One is [left] with the thought it’s simply nothing more
than a case of rob Peter to pay Paul.   Somehow Paul seems
to want to keep the money even though he knew it was in
satisfaction of a theft.
….
If nothing else it’s not a matter of good public policy
that  we  permit  people  to  keep  money  that  is  stolen
regardless of whatever circumstances they may have been
victimized.
¶6                                                                                        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.   Puttkammer v. Minth,
83 Wis.  2d  686,  689,  266 N.W.2d  361  (1978).    A claim of unjust enrichment
requires  proof  that  the  plaintiff  provided  the  defendant  with  a  benefit,  the
defendant appreciated or knew of the benefit and the defendant retained the benefit
under circumstances that make its retention inequitable.   Tri-State Mech., Inc. v.
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No.   2011AP2154
Northland Coll.,  2004 WI App  100,  ¶14,  273 Wis.  2d  471,  681 N.W.2d  302.
“[T]he application of the facts to the unjust enrichment legal standard is a question
of law that we review de novo.”   Id., ¶13.   A circuit court’s “decision to grant
equitable relief in an action for unjust enrichment is discretionary.”   Id.
¶7                                                                                       The first two elements are satisfied.   Good to Go does not dispute
that it received and appreciated a $60,000 benefit and that it knew, albeit not at the
time of receipt, the source of the money.   The timing of the choice to accept or
reject the benefit need not coincide precisely with the time the benefit is conferred
if the nature of the benefit is such that it can be returned.   Buckett v. Jante, 2009
WI App 55, ¶17, 316 Wis. 2d 804, 767 N.W.2d 376.   Money is returnable.
¶8                                                                                       Good to Go and DKA part ways on the third element, whether it
would be inequitable for Good to Go to retain the $60,000.   Good to Go argues it
was not unjustly enriched because the money was in satisfaction of a legitimate
debt; that, by accepting the money from Shinabarger, it lost out on any insurance
recovery; and that it is a reasonable inference that DKA has realized a recovery
from other sources, such as the $63,620 civil judgment it has against Shinabarger
in Illinois or the restitution order in his Illinois criminal conviction.
¶9                                                                                       DKA’s answers to interrogatories expressly state that “[DKA] has
received no payment or other reimbursement for Mr. Shinabarg[e]r’s theft.”   The
circuit court found that Good to Go rejected its options of making an insurance
claim or prosecuting the matter in favor of accepting money from a known thief,
and that allowing Good to Go to keep the money would make for poor public
policy.
¶10    Good to Go alternatively contends that the circuit court should have
ruled that being a bona fide, or  “innocent,” transferee or payee for value is a
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No.   2011AP2154
defense  to  an  unjust  enrichment  claim,  as  the  RESTATEMENT                        (THIRD)  OF
RESTITUTION AND UNJUST ENRICHMENT § 67 (2011) and some other jurisdictions
recognize.   See, e.g., Chicago Title Ins. Co. v. Ellis,  978 A.2d  281,  291  (N.J.
Super. Ct. App. Div. 2009) (stating that one who innocently receives money in
exchange for something of equivalent or comparable value, without participation
in or knowledge of a fraud, “has a greater right to keep the money than the victim
of the fraud has to its return from that person”); see also Plitt v. Greenberg, 219
A.2d 237, 241 (Md. 1966) (stating that a plaintiff cannot recover funds that come
in good faith into the possession of a transferee who pays a good and valuable
consideration for it).   Good to Go points out that since Wisconsin law already
recognizes that being a bona fide purchaser of property for value is a defense, see,
e.g., Dairyman’s State Bank v. Tessman, 16 Wis. 2d 314, 317-22, 114 N.W.2d
460 (1962), the foundation is there for taking the next step.   We are not convinced.
¶11    The  key  feature  of  Good  to  Go’s  citations  to  authority  is  the
complete and total innocence of the person who received the money.   The trial
court could not put Good To Go in that category.   It felt that Good to Go’s prior
knowledge of Shinabarger’s character should have led Good to Go to at least
question from where the $60,000 in cash had come.   Because it did not, Good to
Go could not stand side-by-side with the innocent person contemplated by the
Restatement and related cases.
¶12    A finding of unjust enrichment is a discretionary call by the circuit
court because such decisions are equity-based.   We have no hesitation upholding
the  circuit  court’s  equity  determination  which,  using  a  demonstrated  rational
process based on the facts and law, reached a conclusion that a reasonable judge
could reach.   Gaugert v. Duve, 2001 WI 83, ¶44, 244 Wis. 2d 691, 628 N.W.2d
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No.   2011AP2154
861.   Therefore, this is not the case to comment upon, much less adopt or refuse to
adopt, the Restatement and related cases.
By the Court.—Judgment and order affirmed.
This   opinion   will   not   be   published.                                          See   WIS.   STAT.
RULE 809.23(1)(b)5.
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