Abuse of Discretion

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WI Court of Appeals – District I

Case Name: Rosemary Merkel v. Sandra Jean Neault

Case No.: 2016AP528

Officials: Brennan, P.J., Brash and Dugan, JJ.

Focus: Abuse of Discretion

Sandra Jean Neault appeals from a judgment in the amount of $98,782.40, entered by the trial court upon finding Neault liable for conversion, misrepresentation, unjust enrichment, and theft after Neault withdrew funds in the amount of $48,931.65 from a checking account that was held jointly by Neault and her mother, Rosemary Merkel, the respondent. Merkel asserts that she opened the account with Neault for purposes of convenience after she had moved in with Neault. However, Neault contends that Merkel told her the funds were a gift to her and her children, and she had a right to withdraw the funds since they were held in an account jointly owned by Neault and Merkel.

On appeal, Neault argues (1) that Merkel was incompetent at trial, and that the trial court erroneously exercised its discretion in relying on her testimony; (2) that the trial court erroneously exercised its discretion in admitting Neault’s deposition; (3) that the trial court erroneously exercised its discretion in precluding testimony regarding previous cash gifts to family members by Merkel; and (4) that the evidence in the record does not support the trial court’s findings. In contrast, Merkel contends that the evidence supports the trial court’s findings and that the court properly exercised its discretion in all of its rulings in this matter. We agree and affirm.

Merkel further asserts that this appeal is frivolous, and has filed a motion for fees and costs pursuant to WIS. STAT. RULE 809.25(3) (2015-16). 1 We agree and remand this matter to the trial court to determine the costs, fees, and reasonable attorney’s fees to be awarded to Merkel.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.