Nicola Charlton v. Mark Charlton

COURT OF APPEALS
DECISION NOTICE
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.
October 28, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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.

Appeal No. 2023AP1155 Cir. Ct. No. 2022CV5107

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

NICOLA CHARLTON, GRANT CHARLTON AND KRISTIN CHARLTON,

PLAINTIFFS-APPELLANTS,

V.

MARK CHARLTON, TOM KROSCHER, MICHAEL ORGEMAN, LICHTSINN &
HAENSEL, S.C., ASSOCIATED BANC-CORP., TOWN BANK, N.A., NICOLET
NATIONAL BANK, HIAWATHA NATIONAL BANK AND STEPHENSON NATIONAL
BANCORP, INC.,

DEFENDANTS-RESPONDENTS,

ABC INSURANCE COMPANY AND DEF INSURANCE COMPANY,

DEFENDANTS.

APPEAL from an order of the circuit court for Milwaukee County:
THOMAS J. McADAMS, Judge. Affirmed.

Before Colón, P.J., Donald, and Geenen, JJ.
No. 2023AP1155

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Nicola Charlton, Grant Charlton, and Kristin
Charlton (collectively, “the plaintiffs”) appeal the order granting the motions to
dismiss filed by Mark Charlton, Tom Kroscher, Michael Orgeman, Lichtsinn &
Haensel, S.C., Associated Banc-Corp., Town Bank, N.A., Nicolet National Bank,
Hiawatha National Bank, and Stephenson National Bancorp Inc. (collectively, “the
defendants”). The plaintiffs believe they were entitled to a larger inheritance than
they received and blame the defendants for the shortfall. Existing Wisconsin law
does not, however, provide for a cause of action for tortious interference with an
expectancy based on a diminished inheritance. Consequently, the plaintiffs failed
to state a claim upon which relief can be granted. We affirm.

I. BACKGROUND

¶2 The following background information is taken from the allegations
in the plaintiffs’ complaint. Earl Charlton had five children, Nicola, Grant,
Kristin, Mark, and Guy, all of whom were named as beneficiaries to his estate.1
Before his death, Earl owned interests in five businesses that constituted part of his
estate. Attorney Michael Orgeman and Orgeman’s employer, Lichtsinn &
Haensel, S.C. (referred to collectively as “the lawyers”), were retained by Earl to,
among other things, draft his estate planning documents. Earl died in 2021.

1
For ease of reading, throughout the remainder of the decision, we will refer to the
various members of the Charlton family by their first names. Guy is not a named party in this
litigation.

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¶3 In 2022, the plaintiffs filed a complaint naming numerous
defendants: Mark; Tom Kroscher, acting on behalf of his mother, Marian
Kroscher, who was Earl’s business partner; the lawyers; and five separate banks
(collectively, “the banks”). The plaintiffs claim that Mark, with the assistance of
Orgeman and Kroscher, took advantage of Earl’s diminished capacity prior to his
death in order to assert control over Earl’s personal and business affairs. The
plaintiffs additionally allege that Mark mismanaged Earl’s business affairs so as to
reduce the value of Earl’s estate, which they inherited.

¶4 The complaint alleged a cause of action for tortious interference with
an expectancy against Mark, Kroscher, and Orgeman based on the diminished
value of their inheritance. The plaintiffs further alleged that the banks, Kroscher,
and the lawyers aided and abetted in diminishing the plaintiffs’ inheritance by
reducing the value of Earl’s estate.

¶5 All of the defendants moved to dismiss the claims against them.
Following oral argument, the circuit court granted the motions in a 65-page
written decision. As relevant for our resolution of this appeal, the court ruled that
“[t]he tort alleged does not exist based on a mere reduction” and that the complaint
did not sufficiently allege a claim for aiding and abetting.

II. DISCUSSION

¶6 An appellate court reviews a motion to dismiss for failure to state a
claim de novo. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶¶17-
19, 356 Wis. 2d 665, 849 N.W.2d 693; see WIS. STAT. § 802.06(2)(a)6. (2023-

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24).2 To withstand a motion to dismiss, “a complaint must plead facts, which if
true, would entitle the plaintiff to relief.” Data Key Partners, 356 Wis. 2d 665,
¶21; see WIS. STAT. § 802.02(1)(a). We accept as true the factual allegations in
the complaint and all reasonable inferences that can be drawn therefrom; legal
conclusions need not be accepted as true. Data Key Partners, 356 Wis. 2d 665,
¶19.

¶7 The plaintiffs argue that the circuit court erred when it concluded
that Wisconsin does not recognize a cause of action for tortious interference with
an expectancy based on a diminished inheritance. It is undisputed that, to date,
Wisconsin law has not recognized such a claim.

¶8 Wisconsin first recognized a claim for intentional interference with
an expected inheritance in Harris v. Kritzik, 166 Wis. 2d 689, 480 N.W.2d 514
(Ct. App. 1992). In defining the elements of this cause of action, we adopted the
Restatement (Second) of Torts § 774B (1977). Harris, 166 Wis. 2d at 695.
Section 774B, subtitled “Intentional Interference with Inheritance or Gift,” defined
the cause of action as follows:

One who by fraud, duress or other tortious means
intentionally prevents another from receiving from a third
person an inheritance or gift that he would otherwise have
received is subject to liability to the other for loss of the
inheritance or gift.

Id.

¶9 The Harris court went on to delineate the elements for a cause of
action for intentional interference with an expected inheritance as follows:

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP1155

(1) an existence of the plaintiff’s expectancy; (2) that the
defendant intentionally interfered with that expectancy;
(3) that the conduct of the defendant, in and of itself, is
tortious—e.g., fraud, defamation, bad faith, or undue
influence; (4) that there exists a reasonable certainty that
the testator would have left a particular legacy had he or
she not been persuaded by the defendant’s tortious conduct;
and (5) existence of damages.

Id., 166 Wis. 2d at 695-96 (footnotes omitted). To date, Wisconsin case law has
only recognized claims that plaintiffs were deprived entirely from receiving an
expected inheritance. See id. at 696-97; see also Wickert v. Burggraf, 214 Wis.
2d 426, 428-29, 570 N.W.2d 889 (Ct. App. 1997).

¶10 Here, there are no allegations that the conduct of any defendant,
individually or in concert with others, caused any plaintiff to be entirely
disinherited. Instead, the plaintiffs allege that, while they remained beneficiaries
of Earl’s estate plan, acts of the defendants reduced the value of that estate prior to
Earl’s death, with a consequent reduction in the value of the inheritance each
plaintiff received.

¶11 The plaintiffs assert: “Based on the only binding cases in this state,
Harris and Wickert, Wisconsin courts are silent on whether a claim for tortious
interference may be based on a reduction of a plaintiff’s expected inheritance.”
They submit: “Although silent, Wisconsin has not prohibited such as case.” Based
on their review of other jurisdictions that follow the Restatement (Second), the
plaintiffs argue that this court should conclude a tortious interference claim may
be brought when there is a diminished inheritance that would not have been
diminished but for a defendant’s wrongful conduct.

¶12 Having reviewed the cases cited by the plaintiffs, we are not
convinced that they persuasively support the position that we should recognize the

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diminished-inheritance version of tortious interference with an expectancy. For
example, the plaintiffs cite Estate of Hollywood v. First National Bank of
Palmerton, 859 A.2d 472 (Pa. Super. Ct. 2004), as support for the premise that
within Restatement (Second) jurisdictions, the tort applies to diminished
inheritances. Interestingly, the Hollywood court went on to explain that
Pennsylvania does not recognize a claim for diminished inheritance. Id. at 477
(holding that Pennsylvania law “does not provide grounds for recovery on the
basis of inter vivos transfers alleged to diminish an eventual bequest”).

¶13 The plaintiffs also direct us to the Florida case of All Children’s
Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. Dist. Ct. App. 2000). However, the
court in that case stopped short of recognizing a cause of action akin to the one at
issue here, which it described as a “bigger piece of pie” theory of tortious
interference. Id. at 805-06. The court explicitly stated that it did not need to
decide the issue. Id. at 806-07. Meanwhile Wellin v. Wellin, 135 F. Supp. 3d 502
(D.S.C. 2015), another case cited by the plaintiffs, at best, supports a claim in the
context of alleged wrongful removal of specific assets from the estate, not—as the
plaintiffs allege here—an amorphous allegation that they should have received a
larger inheritance. See id. at 518-19.

¶14 Circling back to case law from this state, the plaintiffs direct our
attention to Schaefer v. American Family Mutual Insurance Co., 192 Wis. 2d
768, 531 N.W.2d 585 (1995), and contend that a claim for a diminished
inheritance should be categorized as a question of damages. The plaintiffs’
contortion of the Schaefer court’s holding misses its mark. In Schaefer, the court
noted that “[t]he sole issue on review is whether evidence of receipt of insurance
proceeds by heirs bringing a wrongful death action seeking pecuniary damages for
lost inheritance should be excluded at trial on public policy grounds.” Id. at 774.

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The court went on to define what constitutes lost inheritance and noted that
“[r]ecovery is limited to the pecuniary value of the addition to the estate which the
decedent in reasonable probability would have accumulated and left to his or her
heirs had the decedent lived a natural life span.” Id. at 787. The case has no
bearing whatsoever on whether Wisconsin currently recognizes, or should
recognize in the future, a claim for tortious interference with an expectancy based
on a diminished inheritance.

¶15 In order for the plaintiffs’ case to move forward, we would have to
recognize a new claim. We are an error correcting court. Blum v. 1st Auto &
Cas. Ins. Co., 2010 WI 78, ¶50, 326 Wis. 2d 729, 786 N.W.2d 78 (“The primary
function of the court of appeals is error correction.”). “[T]he court of appeals’
law-developing role is secondary and arises only under some circumstances, as the
court is required to adapt[] the common law and interpret[] the statutes and federal
and state constitutions in the cases it decides.” Id. (brackets in Blum, two sets of
quotation marks and citation omitted). Nothing about this case requires us to
create a version of an expected-inheritance tort never before recognized in this
state. See State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424
N.W.2d 385 (1988) (“[I]t is [the Wisconsin Supreme C]ourt’s function to develop
and clarify the law.”); see generally Sussex Tool & Supply, Inc. v. Mainline
Sewer & Water, Inc., 231 Wis. 2d 404, 416 n.4, 605 N.W.2d 620 (Ct. App. 1999)
(declining to address whether the economic loss doctrine applies to a negligent
provision of services because the appellate court is not the appropriate avenue for
law creation).

¶16 Because Wisconsin law does not recognize a claim for tortious
interference with an expectancy based on a diminished inheritance, the plaintiffs’
claims against the banks, Kroscher, and the lawyers for aiding and abetting that

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No. 2023AP1155

interference must also fail. Here, there was no unlawful act to aid or abet. See
Winslow v. Brown, 125 Wis. 2d 327, 336, 371 N.W.2d 417 (Ct. App. 1985)
(explaining that “a person is liable in a civil action for aiding and abetting
if: (1) [t]he person undertakes conduct that as a matter of objective fact aids
another in the commission of an unlawful act; and (2) the person consciously
desires or intends that his conduct will yield such assistance”).3

¶17 Multiple parties filed motions in this court seeking costs, fees, and
attorney fees for a frivolous appeal, relying on WIS. STAT. RULE 809.25(3) and
WIS. STAT. § 895.044. Whether an appeal is frivolous is a question of law.
Howell v. Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621.

¶18 This is “‘an especially delicate area,’” and “court[s] must be cautious
in declaring [actions or appeals] frivolous” to avoid stifling the development of the
law. Juneau Cnty. v. Courthouse Emps., 221 Wis. 2d 630, 640, 585 N.W.2d 587
(1998) (citation omitted). In order for this court to award sanctions under WIS.
STAT. RULE 809.25(3) or WIS. STAT. § 895.044(5), the entire appeal must be
frivolous. Thompson v. Ouellette, 2023 WI App 7, ¶¶20, 59, 406 Wis. 2d 99, 986
N.W.2d 338. Although we reject the plaintiffs’ arguments for the reasons
discussed above, we are not persuaded that the entire appeal is frivolous. We
therefore deny the motions for costs, fees, and attorney fees under RULE 809.25(3)
and § 895.044.

By the Court.—Order affirmed.

3
To the extent we have not addressed the alternate grounds for affirmance, it is not
necessary for us to do so. See Lakeland Area Prop. Owners Ass’n, U.A. v. Oneida Cnty., 2021
WI App 19, ¶17, 396 Wis. 2d 622, 957 N.W.2d 605 (“[W]e need not address all arguments raised
by the parties if one of those arguments is dispositive.”).

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This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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