*1 jury stand that the they before can return a verdict would have to be unanimous" and then went on explain unanimous verdict. you that," "Did understand the trial inquired. court DeLeon answered affirmatively. The trial adequately court advised DeLeon of the effects of his jury waiver. No error occurred.

By the Judgment affirmed. Court. — HERKERT,

Herman J. Plaintiff-Respondent, STAUBER, Robert Defendant-Appellant, MAZER, Mazer, William Richard Mazer/Stauber Associates, Corporation, P.C. and Guardian Defendants.† Appeals

Court of May No. 83-2150. Submitted on 1985. Decided October briefs 24, 1985. (Also reported 704.) in 378 N.W.2d † Petition to reviewdenied. *2 was defendant-appellant the cause submitted

For the Wayne M. J. of David McDorman Sta- the briefs on ton, of Madison. plaintiff-respondent the cause submitted

For the Walsh, Walsh, G. Walsh and Sw- of David on brief of Madison. eeney Whitney, & S.C. J., Gartzke, P.J., F. and Bruce Beil- Dykman,

Before fuss, Judge. Reserve

GARTZKE, appeals an dis- P.J. order Robert firm, Lardner, compel Foley law & missing motion to a his $38,000 garnished from his bank make restitution of in represented Herman Herkert The attorneys account. brought judgment enforce Herkert's garnishment garnishment reached about Stauber. against With judgment. due $60,000.00, more than on slightly consent, attorneys 1981 the in late December Herkert's $38,000 garnishment proceeds their from the applied trust ac- and retained balance bill for services judgment. from the appeal pending Stauber's count judgment March 1982 the was reversed as to Stauber grounds that it was error to hold him personally on liable professional for the breach of a contract with the corpora- Stauber, tion he and another architect formed. Herkert v. N.W.2d 834 After judg- reversed, attorneys ment was returned to him the bal- ance in their trust account. Stauber contends that be- cause the had a attorneys duty to hold the entire pending enriched, the appeal and have been unjustly they $38,000 must return the to him. reject proposi- We both tions and affirm. Duty

1. No to Hold Garnishment Proceeds Pending Appeal

Stauber asserts that if creditor collects *3 judgment pending appeal, on the an "automatic stay" pre- vents disbursement of the funds. He concludes that Her- attorneys duty bert's had a garnishment hold the pro- appeal ceeds until the was resolved and to obtain an order the disbursing proceeds. from trial court before the We disagree. stay

The trial court did not pending execution the ap- peal. taking Merely appeal does not the stay execution 808.07(1), judgment. or enforcement of a Sec. Stats. If a judgment is collected and is afterwards set aside or re- must, judgment course, versed the creditor restore 806.09(1), with interest from the time of execution. Sec. Similarly, Stats. if the sheriff or other officer collects the judgment, deposited the must be with the clerk pending 806.09(2), of court and held the Sec. Stats. statute, however, No requires that judgment creditor or the creditor's hold the amount collected or ob- tain allowing an order use of the until money appeal the is decided.

89 position. Until justify the case law does Nor reversed, may judgment creditor do the is judgment the moneys collected on it. Sla with pleases she he or as 144, 150, Chikowske, Wis. v. bosheske reversed, the creditor must judgment If is the collected, is not true of the but this amount return applied part of that lawfully has attorney who creditor's was valid before rever judgment services. The amount Stauber, suggestion no contains supra, Herkert sal. fraudulently. these cir Under was obtained judgment cumstances, duty repay attorney "is under judgment account of he received on money which for payment retains as services or which he creditor and (see to him Illus creditor owed for debt 20) pur money as a bona fide he received tration since h, sec. 74 comment at Restitution Restatement chaser." (1933) (1937).1 (citing 87 ALR 175-76 also See effect). the same jurisdictions to from several cases violated no attorneys that Herkert's We conclude applying part garnish- law rule statutory case proceeds to their fees. 2. Trust Doctrine Constructive a constructive trust should be argues that garnishment proceeds by Foley retained imposed on the *4 applies following presents the illustration that Restatement of case: to the facts this against pays B the judgment $3000. B for A a valid 20. obtains C, expends attorney. C A's At A’sdirection the amount of compensation satisfy for his $2000as A's creditors and retains $1000to Upon judgment, previous ones. reversal of in this suit and in services C.

B is to restitution from not entitled at 312. Restatement Restitution attorneys unjustly that Herkert's He asserts & Lardner. taking proceeds wrongfully, themselves enriched relationship. or in abuse of a confidential unconscionably, disagree. we Again that one of Herkert's at- attorney testified

Stauber's Porter, garnish- he would hold the agreed that torneys, appeal. The at- pending the outcome proceeds testified that Stauber's codefendants torney for agreement reached an with Por- conversation he separate garnishment pro- ter, Porter would hold which stop his appeal attorney and the would pending ceeds Porter testified garnishment.2 "obstruct" the attempts to he intended to hold the attorneys that that he told both that indicated he was appeal but he pending to Stauber's at- In Porter's letter promising anything. Porter after the conversation days some four torney con- wrote, present what our intentions were you "I told rep- I pending appeals. made cerning receipt of monies testi- you." attorney sort to Stauber's any resentation "present Porter's letter as he understood fied money hold the that Porter would to confirm intentions" appeal. pending regarding that the evidence

The trial court found only correspondence showed and the both conversations intention to hold the present his then Porter stated that finding this is not appeal. Because pending funds 805.17(2), Stats. erroneous, accept it. Sec. we must clearly was insuffi- the evidence The trial court concluded That express trust. agreement for an to establish an cient Attorney represented Staton Attorney McDorman McDorman the trial court. represented codefendants before original appeal. Staton McDorman and in the of record present in the cocounsel for Stauber are listed as *5 The court refused on not contested conclusion is that the court We conclude trust. impose to a constructive err. did not equitable device cre- trust is constructive

The enrichment, unjust prevent which arises to law ated benefit, the retention of party receives a one when will A constructive trust be unjust to another. is which legal title only in circumstances. The imposed limited good equity and con- who be held someone must employ- entitled beneficial not be science should by means of must also have been obtained Title ment. fraud, duress, a confi- abuse of or constructive actual mistake, wrong, relationship, commission of a dential by any unconscionable conduct. form of or 671, Wilharms, 678-79, 287 93 Wis.2d Wilharms v. omitted). (1980) (citations 779, 783 N.W.2d present intention Porter's statement such. right rely no on as Com- promise. Stauber had Co., 31 Mut. Auto. Ins. State Farm pare Goetz v. (1966) (insurance state- adjuster's 142 N.W.2d not a pay prom- claim was company intended pay). ise to relationship Stau- existed between

No confidential rela Confidential attorney attorney. and Herkert's ber's person and his or her tionships usually arise between advisor, em guardian, spiritual attorney, physician, Faulks, 246 Wis. Will close business relation. ployer, In 319, 358-59, 17 system, our relationship opposing attorneys professional between adversarial, Describing this generally not confidential. is case, re trial court said as much hotly as a contested Porter. garding suggested. wrong. No fraud is Porter committed Herkert authorized garnishment was lawful. *6 attorneys his are not accountable Herkert and withdrawal.3 stay obtain of execution. The a failure for legal equitable to Stauber duty no attorneys violated the garnishment themselves from by paying principle Restitution, Restatement appeal. pending the of supra. decent, no

Unconscionability arises when fair- without person profound would view the result a minded Johnny's injustice. Foursquare Properties sense Loaf Stein, 679, 681, 126, 343 127 116 N.W.2d & 1983). has supreme court treated uncons- (Ct.App. Our ap- of law cionability subject independent as an issue Fabric Tel. determination. Discount House v. Wis. pellate 417, Co., 345 117 Wis.2d "present or her inten- person a describes his When tion," speaker knows or should know that the an change intention tomorrow. failed to may that Stauber the trial stay himself with a of execution both at protect appellate level.4 retains his level and at the Stauber court personally, from Herkert whatever right to restitution finding solvency Herkert's or his trial court made no as to attorney's knowledge at the the with of his financial condition time of year deposed had a in 1981. When a later Herkert drawal December $39,132. negative net worth When asked whether at the time paid liquid which he have he other assets from could withdrawal had Stauber, During hearing trial he said not know. before the he did paid lawyers why his 1981.Herkert he was asked he December court settlement, judg replied half of Stauber that under his 1980divorce wife, pay payable not her his former and he did want to ment was unpaid judgment. sure due on the until he was there were fees repeatedly sought stay disre at the court level but Stauber a trial filing undertaking. garded The trial time the court limits set for stay. have could refused to reward such conduct with Stauber court appeals pending stay his did not seek from court of but (Rule) 808.07(2), 809.12, Stats.; sec. Stats. Sec. applauding, we 806.09(1), Without Stats. Sec. is worth. attorneys have us that Herkert's facts before hold on the unconscionably. not acted im- refused to properly trial court that the

We hold trust. pose a constructive affirmed.

By the Court. —Order DYKMAN, the ma- Were facts as (dissenting). J. them, agree with its result. How- I would relates jority one. ever, attorneys, two represented him, testified Stauber called Attorney Staton garnish- involved in Illinois agreed to become Staton cross-examination, that he he testified action. On *7 At- Staton also testified that on of Stauber. did so behalf garnished not to the agreed had disburse torney Porter the court had decided the case supreme after funds until the agreement litigating to cease Staton's in return for assumption only that majority's The garnishment. therefore erroneous. represented Stauber is McDorman re- depends upon assumption, its erroneous conclusion Its sulting an incorrect mandate. in a of law trial concluded as matter

Though the court rely upon entitled first not that Stauber's statements, alleged agree- the it did consider Porter's opinion trial Porter. The court's ment between Staton and 'acceptance,' of how- only "The evidence Porter's reads: 1981, letter, ever, 2, quoted entirety in is its his October 4, an The is insufficient establish p. evidence supra. at trust." agreement express for an believed, if evidence testimony, Staton's is Because Porter, trial agreement Staton and the of an between contrary clearly the is erroneous. Noll finding to judge's 575, 643, Dimiceli's, Inc., 641, 340 115 N.W.2d Wis.2d v. 1983). the not con- majority Because does (Ct.App. it not consider whether testimony, Staton's does sider court, sup- trial would if believed the testimony, in Stauber's favor. port 417, Resort, 108 Valley In Alpine Kramer v. (1982), 293, the 422, repeated 295-96 court 321 N.W.2d upon for a cause of action based necessary the conditions promissory estoppel: promise he promisor

1. must make a which reasonably expect action or forbear- should to induce part character on the ance of a definite and substantial promisee; of the action promise

2. must induce such or for- the bearance; and only injustice

3. can be avoided enforcement promise. [Citation omitted.] 688-89, Minth, In 83 Wis.2d Puttkammer (1978), repeated elements court equity unjust for enrichment: of a cause action (1) upon by the conferred the defendant benefit (2) knowledge by plaintiff; appreciation the de- (3) benefit; acceptance or fendant of the retention by under circumstances defendant benefit making inequitable for defendant to retain payment omit- without of its value. benefit [Citations ted.] *8 Staton, has trial court to believe

Were the estoppel unjust promissory proven causes of action I re- writing majority I for the would enrichment. Were Sta- with instructions consider mand to trial court conflicting testimony, make a credibil- ton's and Porter's determination, and, on that determination based ity complaint or enter either dismiss Stauber's against Porter.