author: ANDERSON, J.

text:
    Thomas M. Teubel, Plaintiff-Appellant, v. Prime Development, Inc. and Robert B. Clemen, Defendants-Respondents, Randy L. Fiore, Defendant.
    Court of Appeals

      No. 01-1098.

      Submitted on briefs October 17, 2001.

    Decided November 7, 2001.

    2002 WI App 26
    (Also reported in 641 N.W.2d 461.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John V. O'Connor, Robert I. DuMez, and Gino M. Alia of O'Connor & Willems, S.C., Kenosha.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Joseph E. Fenzel and Shannon M. Whitworth of Domnitz, Mawicke & Gois-man, S.C., Milwaukee.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 1-29-02.

   ANDERSON, J.

¶ 1. Thomas M. Teubel appeals from an order of the trial court dismissing his complaint against Prime Development, Inc. and Robert B. Clemen, and a judgment awarding Clemen $11,618.40 in costs and attorney's fees. Because the trial court based its order and judgment on factual findings that are not clearly erroneous and because the trial court exercised proper discretion in selecting the sanctions of dismissal with the award of costs and fees, we affirm.

¶ 2. This appeal requires us to examine the findings of fact and discretionary determinations made by the trial court and relied upon in its decision to dismiss Teubel's complaint and award costs and attorney's fees to Clemen. The background of the complaint itself will be examined briefly for context.

Background

¶ 3. These facts are undisputed. In August 1997, Teubel entered into a contract with Prime Development and Clemen for the purchase of a residential unit in "The Villas at Echo Lane" Condominium. Prior to entering into this contract, Teubel met with Clemen, who, in his capacity as a corporate officer and director of Prime Development, told Teubel that a nine-hole golf course was going to be built on sixty-seven acres adjacent to the condominium and was going to be built and run as a separate business entity at no cost to the condominium owners. Randy L. Fiore, an officer and principal owner of Prime Development, made similar representations to Teubel.

¶ 4. Teubel then purchased Unit 6A in "The Villas at Echo Lane" Condominium. In May 1998, Fiore informed Teubel that Prime Development was going to convey the sixty-seven acres adjacent to "The Villas at Echo Lane" Condominium to the condominium and was not going to build or develop a golf course. Instead, the condominium was going to build what was described as a "golf amenity" (three holes and a practice range), and this was to be maintained by the condominium owners.

¶ 5. Teubel filed suit, alleging five claims in the alternative: intentional misrepresentation, strict responsibility, false advertising, untrue statement or omission, and breach of contract/breach of warranty.

Facts

¶ 6. Michael Rooney was hired by Teubel as a real estate expert to prepare an appraisal of Teubel's condominium with and without an adjacent nine-hole golf course. Subsequently, Rooney produced a report, describing his appraisal process and the property values as of December 14, 1999, the date of the report.

¶ 7. On the first day of trial, January 31, 2000, Rooney's report was marked as Exhibit 21 and was referenced by Teubel's attorney in his direct examination of Rooney. At the close of testimony that day, the defense attorney approached Teubel's attorney and asked if he could make a copy of Rooney's report. Teubel's attorney assented.

¶ 8. The second day of trial, February 1, 2000, began with Teubel taking the stand for cross-examination. During cross-examination, the defense attorney questioned Teubel using the photocopy he had made of Rooney's report. The defense copy of the report was subsequently marked as Exhibit 24. Later, during a recess, Teubel's attorney pointed out that the defense's copy (Exhibit 24) of Rooney's report did not correspond to Exhibit 21. When the two reports were compared, there were a number of redactions to Exhibit 21. The court excused the jury and proceeded to attempt to figure out why there were discrepancies between Rooney's report (Exhibit 21) and the defendant's copy of Rooney's report (Exhibit 24).

¶ 9. Teubel's attorney told the court that he had "whited-out" or redacted certain portions of the report before trial and before it was entered as Exhibit 21. The defense attorney said that when he had copied Exhibit 21 on the first day of trial, Exhibit 21 did not have redactions on it; however, "today" (the next day) it did. He said that he had not done any whiting out and that Exhibit 21 had been altered sometime after he had photocopied it. The defense moved for a mistrial. At this point, Teubel's attorney gave the court a third (and unredacted) copy of Rooney's report, and stated that it was the report that the defense attorney had copied (this third copy was subsequently marked as Exhibit 25 by the court).

¶ 10. The court took possession of Exhibits 21, 24 and 25. After many more exchanges in an attempt to straighten things out, the court declared a mistrial. The court then sent Exhibits 21 and 25 to the sheriffs department for a fingerprint analysis. Subsequently, the defendant filed a motion alleging misconduct by Teubel's attorney and seeking dismissal of the action upon its merits and an award of costs and attorney's fees.

¶ 11. Over the ensuing months, the court conducted several hearings on the matter, one of which was an evidentiary hearing. On October 10, 2000, the court granted the defendant's motion, finding that the factual claims of the defendant were sustained by the evidence, that the misconduct of Teubel's attorney was profound and egregious, and that the sanctions sought were not only appropriate, but essential. A judgment awarding costs and attorney's fees to Clemen in the amount of $11,618.40 was entered on March 28, 2001. Teubel appeals.

Standard of Review

¶ 12. Our standard of review of the trial court's findings of fact is quite limited: we may not overturn them unless we can conclude that they are clearly erroneous. Wis. Stat. § 805.17(2) (1999-2000). Under this standard, even though the evidence would permit a contrary finding, findings of fact will be affirmed on appeal as long as the evidence would permit a reasonable person to make the same finding. See Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 644, 340 N.W.2d 575 (Ct. App. 1983). To justify reversal of a .trial court's finding, the evidence for a contrary finding must itself constitute the great weight and clear preponderance of the evidence. Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 249-50, 274 N.W.2d 647 (1979).

¶ 13. When the trial court acts as the finder of fact, it is the ultimate arbiter of the credibility of the witnesses, Gehr v. City of Sheboygan, 81 Wis. 2d 117, 122, 260 N.W.2d 30 (1977), and of the weight to be given to each witness's testimony, Milbauer v. Transp. Employes' Mut. Benefit Soc'y, 56 Wis. 2d 860, 865, 203 N.W.2d 135 (1973). This is especially true because the trier of fact has the opportunity to observe the witnesses and their demeanor. Syvock v. State, 61 Wis. 2d 411, 414, 213 N.W.2d 11 (1973). This court will not reverse a trial court's credibility determination unless we could conclude, as a matter of law, that no finder of fact could believe the testimony. State v. Garcia, 195 Wis. 2d 68, 75, 535 N.W.2d 124 (Ct. App. 1995).

¶ 14. Drawing an inference on undisputed facts when more than one inference is possible is a finding of fact which is binding upon a reviewing court. State v. Friday, 147 Wis. 2d 359, 370, 434 N.W.2d 85 (1989). It is not within the province of this court to choose not to accept an inference drawn by a fact finder when the inference drawn is a reasonable one. Id. at 370-71.

¶ 15. Further, it is well established that we review a trial court's decision to impose sanctions, as well as the particular sanction it chooses, for an erroneous exercise of discretion. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859 (1991); Kinship Inspection Serv., Inc. v. Newcomer, 231 Wis. 2d 559, 573, 605 N.W.2d 579 (Ct. App. 1999); Garfoot v. Fireman's Fund Ins. Co., 228 Wis. 2d 707, 717, 599 N.W.2d 411 (Ct. App. 1999). Accordingly, we will affirm the trial court's decision if it examined the relevant facts, applied a proper standard of law, and reached a reasonable conclusion. Garfoot, 228 Wis. 2d at 717. The issue is not whether we, as an original matter, would have imposed the same sanction as the trial court; it is whether the trial court exceeded its discretion in imposing the sanction it did. See Kinship, 231 Wis. 2d at 573.

Discussion

¶ 16. We begin by noting the trial court's inherent authority to regulate and sanction instances of suspected attorney misconduct in the course of a judicial proceeding. Johnson, 162 Wis. 2d at 273-74. The court's inherent powers are those "which must necessarily be used to enable the judiciary to accomplish its constitutionally or legislatively mandated functions." City of Sun Prairie v. Davis, 226 Wis. 2d 738, 747, 595 N.W.2d 635 (1999). Therefore, they include those powers that courts need to "maintain their dignity, transact their business ... [or] accomplish the purposes of their existence." Id. at 748.

¶ 17. We hold that as part of maintaining its dignity and transacting its judicial business, a trial court properly seeks to ensure that marked exhibits are not altered. We cannot say that the trial court exceeds its discretion in characterizing the conduct of altering a marked exhibit as egregious. Dismissal with costs and attorney fees is an acceptable sanction and proper when there is a finding of bad faith or egregious misconduct. Johnson, 162 Wis. 2d at 274.

¶ 18. Teubel makes several arguments that we will address in order. First, Teubel claims that the proceedings were "so tainted as to mandate reversal" because the trial court investigated on its own, conducted off-the-record experiments and received ex parte communications from Clemen. We disagree. We have examined the record thoroughly; and, even if we assume without deciding that there was some impropriety in this regard, we have determined that it was of no consequence because the trial court's fact-finding determinations were not influenced by any impropriety.

¶ 19. Teubel's second and third arguments are related. He claims both that the trial court erroneously exercised its discretion in its refusal to consider affidavits submitted in support of his motions for reconsideration and relief and that the trial court erred in refusing to grant relief under Wis. Stat. § 806.07(l)(h). Again, we disagree. Under § 806.07(l)(h), the court is permitted to correct erroneous conclusions of law and to address issues not properly dealt with under the original judgment. Dietrich v. Elliott, 190 Wis. 2d 816, 823, 528 N.W.2d 17 (Ct. App. 1995). Section 806.07(1)(h) requires courts to strike a balance between finality and fairness. State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 626, 511 N.W.2d 868 (1994). Here, the court engaged in a thoughtful analysis before it refused to consider Teubel's affidavits. Teubel takes issue with the court's engaging in a new factor analysis under § 806.07(l)(b) when the motion was brought under § 806.07(1)(h). We are not persuaded that this was improper. Moreover, the court also engaged in a § 806.07(l)(h) analysis when it, by implication, weighed finality with fairness noting that "[o]ne would think that with this kind of evidence in existence that it would have been brought to the. Court promptly...." Then, in its discretion, the court rejected the motion for reconsideration. An appellate court's review of a trial court's decision on this type of motion is limited to the question of whether there has been an erroneous exercise of discretion. Cynthia M.S., 181 Wis. 2d at 624. We find that the court made a proper effort to strike a balance between finality and fairness as is required under § 806.07(1)(h).

¶ 20. Teubel's fourth argument is that there was insufficient evidence to support the court's conclusion that his attorney made redactions to Exhibit 21 during trial. Teubel's fifth argument is that his attorney did not breach his duty of candor toward the tribunal under the supreme court rules. Our role is to search the record for evidence to support the findings of fact reached by the trial court. Johnson v. Merta, 95 Wis. 2d 141, 154, 289 N.W.2d 813 (1980). Much of the record revolved around the opposing attorneys pointing fingers at each other. The court was in the best position to judge credibility. This is a case where inferences had to be drawn, one fact finder might have drawn them differently than the trial court in this case, but we are not able to say that its determination was clearly erroneous. The trial court, in a detailed discussion of twenty-five pages, related the evidence of record and concluded that Teubel's attorney made redactions to Exhibit 21 before trial and that he breached his duties under SCR 20:3.3. We need not repeat those detailed findings here, nor do we see any reason to disturb them. Because we determine that the trial court's findings are not clearly erroneous, we must accept them.

¶ 21. Finally, Teubel argues that the court's sanctions were grossly disproportionate. A trial court's decision to dismiss an action is discretionary, and will not be disturbed unless the party claiming to be aggrieved by the decision establishes that the trial court has erred in its exercise of discretion. Johnson, 162 Wis. 2d at 273. An erroneous exercise of discretion has not been established. Accepting the trial court's findings, we cannot say that the dismissal and award of costs and fees have no support in the record. Id. at 274 (where dismissal with costs and attorney fees was considered an acceptable sanction given a finding of bad faith or egregious misconduct).

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       With regard to the claim of ex parte communications, Teubel argues that Clemen violated SCR 20:3.5 (1999-2000) when he submitted a three-ring binder to the court and only provided Teubel with a table of contents and an incomplete version of what was submitted to the court. (The three-ring binder contained, among other things, personal thoughts, a newspaper article about the case with handwritten comments, color photographs, property appraisals, Clemen's curriculum vitae, and various advertising materials.)
      While this conduct by the defense does appear to be ex parte communication in violation of the attorney's rules of professional conduct, we do not decide whether it is or is not because ultimately it does not affect our decision. We hold that this conduct did not influence the trial court's decision and therefore it was harmless error. At a hearing on December 7, 2000, the trial court specifically stated that with regard to the binder, "I didn't review this particular material." Further, at the time the trial court received the binder, it said that it was under the impression that the defense had provided Teubel with a complete copy of what was submitted to the court.
      Nonetheless, we consider it disturbing that the defense submitted a three-ring binder to the court and only provided Teubel with a table of contents and an incomplete version of what was submitted to the court. SCR 20:3.5 states in pertinent part:
      Impartiality and decorum of the tribunal. A lawyer shall not:
      (b) communicate ex parte with such a [judge, juror, prospective juror or other official] except as permitted by law or for scheduling purposes if permitted by the court. If communication between a lawyer and judge has occurred in order to schedule a matter, the lawyer involved shall promptly notify the lawyer for the other party or the other party, if unrepresented, of such communication... .

       Wisconsin Stat. § 806.07(l)(h) allows a court to relieve a party or legal representative from a judgment, order or stipulation for: "Any other reasons justifying relief from the operation of the judgment."


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Arden C. Hirsch, Defendant-Appellant.
    Court of Appeals

      No. 01-0023-CR.

      Oral argument October 17, 2001.

    Decided November 21, 2001.

    2002 WI App 8
    (Also reported in 640 N.W.2d 140.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne Hagopian, assistant state public defender of Madison. There was oral argument by Paul G. LaZotte, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by David J. Becker.

    Before Nettesheim, EJ., Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. Arden C. Hirsch appeals from his conviction by a jury for second-degree murder contrary to Wis. Stat. § 940.02 (1969). The sole issue on appeal is whether there is sufficient evidence to support the conviction of second-degree murder. Because we conclude that there is sufficient evidence to support the conviction, we affirm.

¶ 2. In order to be convicted of second-degree murder, the evidence must show that the accused's conduct was: (1) imminently dangerous to another; (2) of such a character that it evinced a depraved mind, regardless of life; and (3) the cause of the victim's death. Wis. Stat. § 940.02.

¶ 3. Hirsch contends that the evidence fails to show that the nature of the conduct which caused his daughter Laurie Hirsch's death was "conduct imminently dangerous to another" or that his conduct "evinced a depraved mind." He argues that the evidence fails to prove the specific act or particular conduct in which he engaged and the existence of the specific state of mind necessary for a second-degree murder conviction.

Standard of Review

¶ 4. The State must prove each element of a crime beyond a reasonable doubt. State v. Johnson, 135 Wis. 2d 453, 456, 400 N.W.2d 502 (Ct. App. 1986). When the defendant challenges the sufficiency of the evidence, our standard of review is whether the evidence adduced, believed and rationally considered by the jury was sufficient to prove the defendant's guilt beyond a reasonable doubt. Id. It is not necessary that this court be convinced of the defendant's guilt. Id. Rather, this court need only be satisfied that the jury, acting reasonably, could be so convinced. Id. Thus, if any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, we will not overturn the verdict even if we believe a jury should not have found guilt based on the evidence before it. Id.

¶ 5. A conviction may be based in whole or in part upon circumstantial evidence. Id. The test for circumstantial evidence is whether it is strong enough to exclude every reasonable hypothesis of innocence. Id. Circumstantial evidence satisfies the reasonable doubt burden of proof when all the facts necessary to warrant a conviction on circumstantial evidence are consistent with each other and with the main fact sought to be proved and the circumstances taken together are of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused and no other person committed the offense charged. Id. at 456-57.

¶ 6. Hirsch's conviction was based on circumstantial evidence. It is well recognized that there is a particular need to rely extensively on circumstantial evidence in prosecutions involving child victims. Id. at 457. In Johnson, a "battered child syndrome" case, we adopted some applicable reasoning from the Minnesota Supreme Court. Id. Like Hirsch, Johnson was convicted of second-degree murder of a child and he appealed, arguing that there was insufficient evidence to support his conviction. Id. at 455. Johnson was a live-in boyfriend of the child's mother and was home alone with the victim. Id. at 462-63. Johnson testified as to his version of the events that led up to the child's injuries. Id. at 462. He said that he was painting in a basement hallway when he heard a crash whereupon he came upstairs and found the child sitting on the living room floor. Id. He testified that the child said she had fallen down the second story stairs. Id. He said that the child then phased in and out of consciousness and eventually, after attempting to rouse the child, he went to a pay phone and called 911. Id. at 462-63. The emergency room doctor and a forensic pathologist testified. Id. at 458-59. The emergency room doctor said he suspected child abuse after examining the victim. Id. The forensic pathologist who examined the body testified that the child suffered from a blunt force injury and said there was "no way" that her injury resulted from an accident. Id. at 459-61.

¶ 7. The case before us involves issues similar to those in the Johnson case because both are child victim cases. In Johnson, we noted that the harm often occurs when the child is in the exclusive control of a parent. Id. at 457. Usually the child is too young or too intimidated to testify as to what happened and is easily manipulated on cross-examination. Id. at 457-58. That a child does not survive strengthens, rather than diminishes, the law's concern for the special problems of prosecuting a defendant in a "battered child" case. Id. at 458. Crucial to identifying a case in which a child is victimized by a parent are the discrepancies between the parent's version of what happened to the child when the injuries occurred and the testimony of medical experts as to what could not have happened, or must have happened, to produce the injuries. Id.

¶ 8. The reasoning in Johnson is applicable here because, like the battered child syndrome cases that result in the death of a child, this child victim case resulted in the death of a child. Like those cases, this case concerns a harm that occurred when the child was in the exclusive control of her parent. And, finally, as in the battered child cases, the fact that a child did not survive strengthens, rather than diminishes, the law's concern.

¶ 9. We now turn to a review of the evidence to determine "if any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt." Id.

¶ 10. On December 2,1970, Hirsch's wife, Patricia Campbell, put their three children to bed and went Christmas shopping. Hirsch was in charge of the children. Later that evening, Hirsch asked his downstairs neighbor, Allen Mohs, to drive him and his one-month-old baby, Laurie, to the hospital. Mohs testified that Hirsch told him that Hirsch's two-year-old daughter Melissa had hit Laurie over the head and that Laurie's head was swelling up. Mohs drove Hirsch and Laurie to the hospital, dropping them off at the emergency room.

¶ 11. At 8:45 p.m., Laurie was seen by the hospital's emergency room physician, Dr. M. Ali Madani. According to Dr. Madani's report, Laurie had swelling on the right side of the head and was in respiratory failure. She was pronounced dead at 9:50 p.m. The coroner, Richard Suscha, examined Laurie's body and found the right side of the head swollen and soft. Suscha talked to Hirsch in the hospital lobby after Laurie had died. According to Suscha, Hirsch said that his two-year-old daughter had struck Laurie with a book while they were on the sofa and that later, when Laurie developed difficulty breathing, he took her to the hospital.

¶ 12. An autopsy was performed by Dr. James Jaeck. Doctor Jaeck did not testify at trial and his entire autopsy report was never found. However, the State introduced into evidence the coroner's docket that had attached to it a portion of Dr. Jaeck's autopsy report. Doctor Jaeck concluded that Laurie suffered a head trauma "severe enough to have caused death." In his opinion, the injury "was less than 12 hours old and resulted from either a blow or a fall." He found a large skull fracture, along with bleeding and herniation of the brain. He suggested that there was "child negligence involving the parents, whether active or passive."

¶ 13. As was the coroner's usual practice with any unexpected death, Suscha notified the police the following morning. He heard nothing from the police for the next twenty-six years.

¶ 14. A criminal investigation began in 1996 when Campbell contacted the Lincoln county coroner to request that Laurie's body be exhumed because Campbell was dying of cancer and wanted to have the body interred with her. After reviewing Laurie's records, the Lincoln county coroner asked the Sheboygan police to investigate. Detective Donald A. Sorenson was assigned to investigate Laurie's death.

¶ 15. As part of the investigation, Sorenson taped one telephone conversation between Hirsch and Campbell and two telephone conversations between Hirsch and his daughter Melissa. Campbell and Melissa consented to the recordings, but Hirsch did not know the conversations were being recorded.

¶ 16. The tapes were played at trial. The first tape, made on November 25, 1996, documented the conversation between Hirsch and Campbell. In response to Campbell's questions, Hirsch told Campbell differing versions of what had occurred that night. He said:

I was there, yes, but I left for a little while ... Melissa and them were there. I just went out. I just went down to the neighbors .. . and I went down to talk to him. I wasn't gone five minutes... five or ten minutes and when I got back upstairs, I put her to bed, I gave her her bath cause you and Kathy went shopping... and I put her to bed and she was just fine and then all of a sudden I couldn't, it was like she was gasping for breath and I thought maybe she had something in her throat or something, you know, so I took her, I, I, you know I picked her up and I patted her on the back and that stuff and she still was gasping for breath and so that's when I tried to get a hold of you and I believe, I don't know, did neighbors downstairs take me in, yeah ... yeah the neighbors. ... (Emphasis added.)

Campbell then asked Hirsch why he was not at the hospital when she arrived at the hospital that night. Hirsch said he had left the other children home alone because he had to get Laurie to the hospital. He said that he then "had to leave [Laurie at the hospital] 'cause the kids were home alone." Campbell said that she remembered Hirsch telling her that Melissa had hit Laurie on the head. Hirsch replied, "That could have happened. I don't know for sure. I have no idea for sure."

¶ 17. Hirsch acknowledged that Laurie was fine when Campbell left that evening. He remembered that Campbell had put the children to bed before she left, but said that they had woken up after she left and he played with them on the floor. Hirsch again stated: "\W\hen I went down to talk to the neighbors I came back up and [Laurie] was on the floor where I left her." Then minutes later, Hirsch changed his story. Instead of saying that he had left Laurie on the floor when he went down to the neighbors, Hirsch said that he had put Laurie in her crib before he went down to the neighbors:

Yes [Laurie] was [in bed], but I held her and that stuff and we put her on the floor and we were playing and Melissa was there and Angela was there and then when then when um I went down to see the neighbors, you know, I put Laurie back in her crib and Missy and Angel was in their bed and I went down to you know, to see and then I came back upstairs and a and I was watching TV and it sounded like she couldn't breath so I went in there and I picked her up and patted her on the back I thought maybe she swallowed something. I put my finger down in her you know throat to see if she had anything and I couldn't find anything so then I took and I told Missy and Angel I'd be back and I took Laurie and I ran downstairs. (Emphasis added.)

Hirsch said that the neighbor drove him and Laurie to the hospital, and that he had to leave the other two children home alone. He also said that he never knew what had caused Laurie's death.

¶ 18. The second and third tapes, made on December 12 and 17, 1996, documented conversations between Hirsch and Melissa (who had been two-and-one-half years old when Laurie died in 1970). Like Campbell, Melissa also questioned Hirsch about Laurie's death. This time, Hirsch told Melissa a third version of the events of December 2, 1970. He said that he was home alone with the children but got called into work and had the downstairs neighbors baby-sit the children. He said that later he was called home from work when Laurie got "sick." Pertinent portions of their conversations demonstrate the discrepancies in his stories:

[Melissa] ... I picked up a certificate, a death certificate, and I was reading it and I was reading the extents of her injuries and
[Hirsch] What injuries
[Melissa] Laurie
[Hirsch] I didn't know she had any injuries
[Melissa] Well, um, she, she had some pretty extensive injuries, anyways
[Hirsch] From what, I don't know, your mother never told me. I know she died in the hospital but from what I don't know
[Melissa] You have no idea
[Hirsch] No, I was never told, we, I never got a paper on it
[Melissa] Well, I have a question for you cause mom always said that a, it, a, I was, you had always said that I did it. I accidentally killed her
[Hirsch] What you did, I never said anybody killed her. Nobody ever said that
[Melissa] Cause all these years I always thought it was my fault
[Hirsch] Nobody killed her
[Melissa] My understanding was that um this happened at home and you were the only one there
[Hirsch] No, no, no, no, no, no when Laurie was sick, your mother was out Christmas shopping and I had to go in to we were I was working at the hospital. I got called in cause I worked in surgery you know like you know for scrubbing surgery floors and I was called in there and they babysat Laurie
[Melissa] Who babysat Laurie
[Hirsch] The people that lives downstairs from us, I don't even remember their name. ...
[Hirsch] [The neighbors] called me at work, I don't know where your mother went Christmas shopping, nobody knew, so there was no way for them to get a hold of her so they called me at work, I went home and then they took me, I looked at Laurie and she wasn't breathing, she was breathing but not right and I took and they took me into the hospital with her cause we only had one vehicle at the time and your mother had the car (Emphasis added.)

At some point, Melissa specifically asked, "So she died because she was sick is what you're sayingt?]" Hirsch replied:

I guess so, that's that's what I guess so yes cause nobody told me any difference and if she would a if she would a if somebody would a hurt her or she would have been beat up or something like that the the doctor would have said something but nobody ever said nothing
[Melissa] Cause the death certificate says nothing about her being sick
[Hirsch] Well what does the death certificate say
[Melissa] She just had major head injuries
[Hirsch] Well see I never knew that, nobody ever said that to me
[Melissa] and I was told that
[Hirsch] and your mother, and your mother never said anything to me and your mother never told me that your mother never told me anything about that a, a you were responsible. Nobody blamed, nobody ever blamed anything, nobody was blamed for anything, nobody, none of you kids, your mother or I. If they said she died of injuries then if she died of head injuries then that's the first time I know anything about it
[Melissa] Well, that's what I was told was that a you were you were left home by ourselves or whatever and um
[Hirsch] no .
[Melissa] and um you said that I dropped a book on her head and
[Hirsch] no
[Melissa] that it was my fault
[Hirsch] no, nobody said anything about that. Your mother, I never said that to your mother cause there was no responsibility, nobodys responsible. She died in the hospital. That's what I, that's what I was told and that's what your mother told me and that's what, that's where she died in the hospital but she wasn't there because of any injuries that I know of. . ..

¶ 19. Finally, Melissa asked Hirsch: "So when you took Laurie to the hospital you just left, you left her there and went back home?" In his previously taped conversation with Campbell, the jury heard Hirsch tell Campbell that he had left Laurie at the hospital and was not at the hospital when Campbell arrived because he had to leave and go back home to be with the other two children. Here, the jury listened as Hirsch answered Melissa's question by telling her that he did not leave the hospital: "[n]o, no, no, no, your mother, your mother came in to see her and that stuff and we were there quite a while with her and I believe she went, I don't remember too well but that's a long time ago but I believe that we went home and that she died in the hospital the next day or something like that."

¶ 20. In addition to hearing these taped conversations, which reveal that Hirsch changed his story in numerous ways, the jury heard testimony from Detective Sorenson, Allen Mohs (Hirsch's downstairs neighbor who drove Hirsch and Laurie to the hospital in 1970), Richard Suscha (the Sheboygan county coroner who examined Laurie's body in 1970), Melissa (Hirsch's daughter), and Dr. Stephen Lazoritz and Dr. Robert Huntington (two medical specialists).

¶ 21. Sorenson told the jury that he reviewed Laurie's death certificate, the coroner's docket and some medical reports in order to confirm the need for an investigation. Then, based on what he learned, he began an investigation. In addition to arranging for and making the tapes, he asked two medical specialists to consult on the case: Dr. Stephen Lazoritz of the Child Protection Center in Milwaukee, Wisconsin, and Dr. Robert Huntington, a forensic pathologist.

¶ 22. Mohs, Hirsch's neighbor in 1970, testified that on December 2,1970, he was at home with his wife. He said the first time he saw Hirsch on that day was when Hirsch came down to the back door and asked Mohs if he could take him and his baby to the hospital. Mohs said that Hirsch told him that his two-year-old daughter had hit the baby over the head with a book and the baby's head was swelling up. He said that while he and Hirsch went to the hospital with the baby, Mohs's wife took care of Hirsch's other two children.

¶ 23. Suscha, the Sheboygan county coroner at the time of Laurie's death, testified that on December 2, 1970, someone from St. Nicholas Hospital notified him that there was a sudden death at the hospital. He then proceeded to the hospital where he examined Laurie's body and talked to the emergency room physician, Dr. Madani. His examination showed a young child with a swollen right frontal/parietal area of the brain.

¶ 24. Suscha said that he met with Hirsch alone in the hospital lobby after he examined the body. He said that Hirsch was very distraught and told him that his two-year-old daughter had struck the one-month-old baby with a book while they were on the sofa. He said Hirsch told him that the baby had developed difficulty breathing and that he then took her to the hospital. Suscha said that he had not personally told Hirsch that Laurie was dead. However, he believed that Hirsch knew by the time Suscha had spoken to him. Suscha ordered an autopsy, which was performed by Dr. Jaeck, the pathologist at St. Nicholas Hospital.

¶ 25. Suscha's coroner's docket, recorded on December 2, 1970, relayed the information he had been told by Hirsch at the time: that a two-year-old child had struck the infant with a book. This was consistent with Suscha's trial testimony that Hirsch had told him that the baby had been hit with a book. Also attached to Suscha's coroner's docket was a portion of Dr. Jaeck's autopsy report. In Dr. Jaeck's report, he indicated that having completed his autopsy, he believed that Laurie's death was caused by child negligence involving the parents, whether active or passive. The morning after Laurie died, Suscha said he notified the police as part of his normal procedure with any unexpected death.

¶ 26. Melissa Zack, Hirsch's daughter, told the jury that when she was eight years old she remembered a visit with Hirsch in Tomahawk, Wisconsin, when she had asked him how Laurie died. Hirsch told her that Laurie had an accident and a book fell on her head. Melissa explained that she had been prompted to ask Hirsch about Laurie's death back then because she was "[c]urious I guess. Probably because I had heard [my mom and aunts talk] that [Laurie] had a book dropped on her head."

¶ 27. Finally, the jury heard testimony from the two medical specialists who consulted on the case. Doctor Stephen Lazoritz, the medical director of the Child Protection Center at Children's Hospital of Wisconsin and a pediatric specialist in the area of child abuse and neglect, said he reviewed the coroner's docket, Laurie's death certificate, and some medical reports from the emergency room doctor. Doctor Lazoritz testified that the various medical documents described an infant who had "an impact injury of a very severe nature.. . because trivial trauma to the head does not cause hemorrhage on the layers surrounding the brain. ... So this baby received a significant blow to the head, on the right side of the head. . .." He testified "with this degree of finding, it's my opinion that the baby would probably immediately have a change in consciousness that was quite dramatic."

¶ 28. Doctor Lazoritz testified that it was his belief that "[a] two-year-old hitting an infant with a book would not result in these injuries." He noted that "a child falling off a sofa would not have these injuries." He testified that he had seen injuries like this in certain cases: high velocity car accidents, children who have fallen out of second or third story windows, and children who have been abused. He testified that "[w]ith the magnitude of force on this child, the baby would have been more than just lethargic. It's my opinion this baby would have been unconscious."

¶ 29. Doctor Robert Huntington, a forensic pathologist, testified that on June 3, 1997, he examined the exhumed body of Laurie Hirsch. He said that he noted that there had been a prior autopsy on the body, but that he was still able to perform a partial autopsy. He said he could see that the right side of the skull was very different from the left side. On the right side, he could see old blood in the tissue outside and the bones under that had been separated and he could see blood on the edges of the separations in a way that was not true of the left side. Further, he said that the dura (the tough lining inside the skull over the brain) was separated from the bones on the right in a way that it was not on the left. He testified that these separations and the blood would not have been the result of the prior autopsy because when performing an autopsy "what happens on on[e] side happens to the other, and the fact of all this bleeding, also was not what you expect an autopsy to do. After all, an autopsy is done when there isn't any blood pressure. So you don't get bleeding."

¶ 30. Doctor Huntington testified that the injury he observed could not have been caused by a fall off an ordinary sofa to an ordinary floor; he said, "Well, if the sofa was on the second floor and she went clean off a second floor on to the first floor. Maybe. But fall off an ordinary sofa to an ordinary floor, forget it." He testified that he could not believe that an "ordinary [two year old] on the same level floor, [could] get that amount of oomph behind a book." He testified that there "had to be external force applied to ... get this disaster started." He emphasized, "we've got real injury there." Finally, he testified that illness could not be the cause of the findings and that "[t]his is injury, period."

¶ 31. On March 22, 2000, the jury found Hirsch guilty of second-degree murder. Thereafter, the circuit court sentenced Hirsch to an indeterminate prison term not to exceed nine years. Hirsch appeals, claiming that the evidence produced at trial was not sufficient for the jury to find him guilty of second-degree murder under Wis. Stat. § 940.02.

¶ 32. Again, we emphasize our standard of review: when a criminal defendant argues on appeal that the evidence was insufficient to convict him or her, we do not retry the case on the facts to determine if each member of this court is convinced of the defendant's guilt beyond a reasonable doubt. State v. Wilson, 149 Wis. 2d 878, 893, 440 N.W.2d 534 (1989). Rather, we must affirm a conviction if we find that the jury, acting reasonably, could have found guilt beyond a reasonable doubt. Id. at 893-94.

¶ 33. Further, the function of weighing the credibility of witnesses is exclusively within the jury's province, and the jury verdict will be overturned only if, viewing the evidence most favorably to the State and the conviction, it is inherently or patently incredible or so lacking in probative value that no jury could have found guilt beyond a reasonable doubt. Id. at 894.

¶ 34. Hirsch argues, citing Seidler v. State, 64 Wis. 2d 456, 219 N.W.2d 320 (1974), that there is insufficient evidence to prove the conduct and the mental state necessary to establish second-degree murder. We disagree with Hirsch's conclusion and believe that Seidler is readily distinguishable on its facts.

¶ 35. In Seidler, a twenty-two-year-old male babysitter was originally convicted of second-degree murder for causing the death of a two-year-old child. Id. at 457. The evidence produced at trial was consistent with the defendant's version of his conduct. The defendant testified that he had angrily grabbed the child by the arm and threw her into a bedroom in the direction of a bed where she hit her stomach against a portion of the bed. Id. at 458.

¶ 36. The supreme court held that the defendant's conduct, though done in a reckless and callous manner, was not consciously such conduct that is imminently dangerous to life so as to serve as the basis for a conviction for second-degree murder. Id. at 464. In addition, the court found that although the defendant's conduct created a situation of unreasonable risk of harm or death to the two-year-old child, the defendant's conduct did not evince a depraved mind regardless of human life. Id. at 464-65. In other words, the court found that the evidence was insufficient because there was a theory of criminal conduct short of second-degree murder that the evidence did not disprove: that the fatal injury occurred when the defendant threw the victim into her bed, and the defendant did not "consciously thr[o]w [the victim] at the hard and unyielding portions of the bed." Id. at 463. Further, the defendant's testimony supported this theory. Therefore, the court reversed the defendant's conviction of second-degree murder and ordered a new trial on the charge of homicide by reckless conduct. Id. at 466.

¶ 37. Unlike in Seidler, in the present case, Hirsch offers no evidence of misadventure that could account for the trauma sustained by Laurie. The jury heard testimony from other witnesses and heard tapes of Hirsch himself, which demonstrated that he gave conflicting explanations for the cause of Laurie's injury: The State produced evidence that in 1970, on the day of the incident, Hirsch told his neighbor and the coroner that his two-year-old daughter Melissa had struck Laurie on the head with a book. Melissa testified that approximately six years after Laurie's death, Hirsch told her that Laurie had died because she had an accident and a book fell on her head. Twenty-six years later, in a taped phone conversation with Campbell, when asked to explain what happened, Hirsch offered no explanation for the cause of Laurie's injury and when Campbell said she remembered he told her that Melissa had hit Laurie on the head with a book, he said, "That could have happened. I don't know for sure. I have no idea for sure." Twenty-six years later, and less than one month after telling Campbell that Melissa hitting Laurie on the head with a hook "could have happened," the jury heard Hirsch tell Melissa that

no, nobody said anything about that. Your mother, I never said that to your mother cause there was no responsibility, nobodys responsible. She died in the hospital. That's what I, that's what I was told and that's what your mother told me and that's what, that's where she died in the hospital but she wasn't there because of any injuries that I know of.... (Emphasis added.)

¶ 38. In conflict with Hirsch's taped statement that Laurie did not have any injuries that he knew of, the State presented persuasive medical evidence that Laurie died as a result of severe injury. First, the initial autopsy report by Dr. Jaeck, the pathologist who examined the body immediately after Laurie's death, stated that he believed the "injury" was less than twelve hours old and resulted from either a blow or a fall. Doctor Jaeck concluded that Laurie suffered a head trauma "severe enough to have caused death." Doctor Jaeck documented a large skull fracture, along with bleeding and herniation of the brain. He suggested that there was "child negligence involving the parents, whether active or passive." Consistently, Dr. Lazoritz, the pediatric child abuse specialist, testified that he believed this infant had "an impact injury of a very severe nature . . . because trivial trauma to the head does not cause hemorrhage on the layers surrounding the brain. ... So this baby received a significant blow to the head, on the right side of the head. ..." Both Dr. Lazoritz and Dr. Huntington agreed that the trauma required to cause an injury of the nature sustained by Laurie would have had to come from a magnitude of force such as a fall from a second or third story. Doctor Lazoritz added that this is the type of injury he sees in a high velocity car accident or in a case of child abuse.

¶ 39. Additionally, the State presented evidence to support the theory that the trauma causing Laurie's death had to have been caused during the time when Hirsch was home alone with Laurie. In the taped conversation between Campbell and Hirsch, Hirsch agreed with Campbell that Laurie was okay when Campbell left to go Christmas shopping. Then, later that evening, Hirsch's neighbor, Allen Mohs, said that Hirsch came to his apartment alone to ask for a ride to the hospital. He said that Hirsch told him that his two year old had hit Laurie on the head with a book. Also, in the initial autopsy report, Dr. Jaeck said that in his opinion, the injury was less than twelve hours old.

¶ 40. We must determine whether such evidence, believed and rationally considered by the jury, is sufficient to circumstantially establish the elements of second-degree murder. The test, as we stated earlier, is whether it is strong enough to exclude every reasonable hypothesis of innocence. Johnson, 135 Wis. 2d at 456. This is a question of probability, not possibility. Id. at 457. After considering the evidence as a whole, and especially the medical testimony and the evidence that Hirsch significantly changed his story both over time and depending on his audience, we conclude that the jury could eliminate accident or misadventure as a reasonable hypothesis of innocence. See id. at 465. The medical testimony concerning the level of force needed to cause the injury, coupled with the surrounding circumstances, arguably places such a theory beyond the realm of possibility. See id.

¶ 41. As to other circumstances of death short of second-degree murder, we are satisfied that the jury could have drawn the appropriate inferences from the evidence adduced at trial concerning the nature of the injury to conclude that these do not fall within the realm of probability as required by the law of circumstantial evidence. Id. After weighing all the evidence, we conclude that the jury could properly find that there was no reasonable conclusion but that Hirsch was the instrument of Laurie's death under circumstances constituting second-degree murder. The evidence adduced at trial was sufficient for the jury to find Hirsch guilty of second-degree murder under Wis. Stat. § 940.02; therefore, we affirm.

By the Court. — Judgment affirmed.

       This case is decided under the version of the statutes applicable at the time of the occurrence that led to Hirsch's conviction. Wisoonsin Stat. § 940.02 (1969) states:
      Second-degree murder. Whoever causes the death of another human being by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, may be imprisoned not less than 5 nor more than 25 years.
      All further references to the Wisconsin Statutes are to the 1969 version.

       "Battered child syndrome" can be evidenced by multiple injuries in various stages of healing. Before one injury heals, another injury occurs. Examples of such successive injuries include bruises, burns and fractures. State v. Johnson, 135 Wis. 2d 453, 457, 400 N.W.2d 502 (Ct. App. 1986).

       Hirsch and Campbell separated in 1978, approximately eight years after Laurie Hirsch's death. Campbell died in 1997.

       In 1996, Hirsch and Campbell had been separated for almost twenty years; Hirsch lived in Lincoln county where Laurie was buried and Campbell lived in Fox Lake, Illinois.

       The tapes are in the appeal record as are transcripts of the tapes.

       Apparently, the entire autopsy report was never given to the coroner and it was never located in the investigation.


author: CURLEY, J. SCHUDSON, J.

text:
    William W. Marquardt, Plaintiff-Appellant, v. Milwaukee County, Milwaukee County Employees Retirement System, and Milwaukee County Pension Board, Defendants-Respondents.
    Court of Appeals

      No. 01-0267.

      Submitted on briefs September 4, 2001.

    Decided December 4, 2001.

    2002 WI App 12
    (Also reported in 639 N.W.2d 762.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John R. Hoaglund, Jr., of John R. Hoaglund, Jr., S.C., of Pewaukee.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Mark A. Grady, principal assistant corporation counsel, of Milwaukee.
    Before Wedemeyer, EJ., Schudson and Curley, JJ.

       Petition to review denied 3-19-02.

   CURLEY, J.

¶ 1. William W. Marquardt appeals the trial court's orders denying his request that Milwaukee County (County), the Employees' Retirement System of Milwaukee County (Employees' Retirement System), and the Pension Board of the Employees' Retirement System of Milwaukee County (pension board) pay his attorney's fees. Marquardt incurred substantial attorney's fees in his successful appeal of the pension board's refusal to exempt the 15% increase he receives in worker's compensation benefits from an offset of his worker's compensation benefits against his disability retirement pension benefits as required by County ordinance.

¶ 2. Marquardt presents four different theories for his contention that he is entitled to the payment of his attorney's fees from one or more of the entities listed. He submits that they should pay his attorney's fees because: (1) the pension board and the County engaged in bad faith; (2) under trust law he is entitled to his attorney's fees; (3) the Weinhagen rule permits such an award; and (4) in pursuing the matter, he was acting as a private attorney general. Because Mar-quardt has failed to prove "bad faith" or a fiduciary breach on behalf of the County or the pension board, he is not entitled to an attorney fee award under his first two theories. Further, the underpinnings for an application of the Weinhagen rule or the "private attorney general" doctrine are not present here. Thus, we affirm.

I. Background.

¶ 3. As noted, in an earlier appeal, Marquardt v. Milwaukee County, 2000 WI App 77, 234 Wis. 2d 294, 610 N.W.2d 496, Marquardt, who was injured on the job in 1992 when he slipped on a wet floor at the House of Correction, prevailed in his position that the 15% increase in worker's compensation benefits awarded pursuant to Wis. Stat. § 102.57 (1997-98) was exempt from the setoff provisions required by County ordinance. Id. at ¶¶ 1-2. After the accident, for approximately two years, Marquardt received temporary disability benefits from Milwaukee County under the Worker's Compensation Act, Wis. Stat. Chapter 102 (1997-98). Marquardt was also awarded a 15% increase in his benefits after an administrative law judge found that Marquardt's injury was caused by Milwaukee County's violation of the safe place statute.

¶ 4. Later, Marquardt applied for and received an accidental disability retirement pension from Milwaukee County. Because Milwaukee County Code op Gen. Ordinances 201.24(11.9) (1994) required the pension board to offset his worker's compensation benefits against his pension, the board refused to exempt the 15% increase in benefits. MCC 201.24(11.9) (1994) provides:

Any amounts which may be paid or payable under the provisions of any state worker's compensation or similar law to a member or to the dependents of a member on account of any disability or death shall be offset against and payable in lieu of any benefits payable out of funds provided by the County under the provisions of this ordinance on account of the same disability or death.

Marquardt contended that the pension board improperly offset his 15% increase because the 15% increase was a penalty, not a benefit. The pension board disagreed, and the trial court agreed with the pension board. On appeal, this court reversed the pension board, concluding that the 15% increase in benefits is a penalty imposed on an employer for failing to comply with the safety standards. Thus, we determined that the pension board incorrectly interpreted the county ordinance as requiring an offset of Marquardt's 15% award.

¶ 5. Following that decision, Marquardt was reimbursed the amount improperly offset and the interest on the money due him, and the pension board thereafter exempted the 15% from the setoff provisions. Mar-quardt then filed a summary judgment motion seeking all his attorney's fees, amounting to approximately $28,000, punitive damages, and costs. The pension board also brought a summary judgment motion seeking dismissal of Marquardt's claims. The trial court granted the pension board's motion, but denied Marquardt's. Marquardt filed a motion for rehearing based on an additional argument that he should be awarded his attorney's fees under the "private attorney general" doctrine. That motion was also denied.

II. Analysis.

¶ 6. Marquardt contends that the trial court erred in denying his request for the payment of his attorney's fees by the County, the Employees' Retirement System and the pension board.

¶ 7. Marquardt acknowledges the well-established American rule, holding that attorney's fees are normally allowed only when authorized by statute, contract or pursuant to certain limited circumstances. Stelpflug v. Town Bd., 2000 WI 81, ¶ 30, 236 Wis. 2d 275, 612 N.W.2d 700. Nevertheless, he argues that he is entitled to his attorney's fees under four legal theories: (1) The County and the pension board acted in "bad faith"; (2) The pension board is liable under trust law; (3) The Weinhagen rule applies to his fact situation; and (4) Marquardt was acting as a private attorney general. "Whether attorney's fees are recoverable, is a question of law that is subject to our de novo review." Community Care Org. v. Evelyn O., 214 Wis. 2d 434, 438, 571 N.W.2d 700 (Ct. App. 1997).

A. The "had faith" exception to the American rule does not apply.

¶ 8. Marquardt argues that the County's attorney acted in bad faith in advising the pension board to offset all his worker's compensation benefits, including the 15% increase, and the pension board's refusal to exempt his 15% increase in worker's compensation benefits under Wis. Stat. § 102.57 resulted in his being "wantonly or recklessly wronged by the defendants." He contends that the pension board's actions are comparable to those of an insurance company whose actions are motivated by "bad faith" towards its insured. He relies primarily on DeChant v. Monarch Life Insurance Co., 200 Wis. 2d 559, 547 N.W.2d 592 (1996), for support, and also cites several federal ERISA cases. He also argues that the corporation counsel engaged in bad faith in advising the board because he "had a bias to protect the County" and that this attorney had "threatened that the offset would be used against his pension benefits if he prevailed."

¶ 9. In DeChant, Monarch Life was found to have acted in bad faith when it refused to provide DeChant with benefits he was entitled to under his disability insurance policy. Id. at 571. Here, however, DeChant is not on point because the trial court found no bad faith. The burden is on the plaintiff to prove some bad faith basis for the award of the attorneys fees. See DeChant, 200 Wis. 2d at 568-72 (discussing the award of attorney fees based on the tort of bad faith). Here, the record simply does not allow for, even taking inferences in the light most favorable to the plaintiff, a finding of bad faith or maliciousness. Although Marquardt claims the trial court's findings are wrong, this court must accept the trial court's findings unless they are clearly erroneous. See Wis. Stat. § 805.17(2) (1999-2000). The record supports the trial court's findings and, accordingly, they are not clearly erroneous.

¶ 10. To establish a claim for bad faith, the insured "must show the absence of a reasonable basis for denying benefits of the policy and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim." Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 691, 271 N.W.2d 368 (1978); see also James v. Aetna Life & Cas. Co., 109 Wis. 2d 363, 370, 326 N.W.2d 114 (Ct. App. 1982). In other words, the trier of fact measures the complained of conduct against what a reasonable person or entity would have done under the particular facts and circumstances. Thus, Marquardt must establish that, under the facts and circumstances, a reasonable pension board would not have denied his request to exempt the 15% increase and a different attorney would have counseled the board to accept his argument.

¶ 11. This dispute dealt with the interpretation of a county ordinance. The pension board, while noting its distaste for the ordinance's operation as it affected Marquardt, followed the advice of its legal counsel and refused to exempt the 15% increase in worker's compensation benefits from the setoff. The pension board acted reasonably when it denied Marquardt's request to exempt his 15% increase in benefits from the offset. The board believed, as did its legal counsel, that the ordinance obligated the board to do so. As the trial court noted:

I can see no basis or facts on which a reasonable' finder of fact could find negligence on the part of the pension board. There has been no expert testimony offered nor do I think any is needed on the issue of negligence by the Corporation Counsel's office and no basis in which there could be a finding that simply because they were ultimately wrong in the view of the Court of Appeals that they were, therefore, negligent.

Contrary to Marquardt's belief, being on the losing side of an argument does not automatically translate into acting in "bad faith."

¶ 12. Moreover, "bad faith" is a tort, and in order to recover for "bad faith," the tort must be alleged in the pleadings. See DeChant, 200 Wis. 2d at 569. Nowhere in Marquardt's pleadings did he allege that either the pension board or the County committed the tort of "bad faith."'A review of his pleadings contains only an allegation that the pension board's action was arbitrary and capricious, and contrary to public policy allegations. These are allegations more clearly related to a certiorari action, and attorney's fees are not recoverable in certiorari actions absent more. Winkelman v. Town of Delafield, 2000 WI App 254, ¶¶ 4-5, 239 Wis. 2d 542, 620 N.W.2d 438. Indeed, the words "bad faith" never appear in the pleadings. Thus, for the reasons stated, Marquardt is not entitled to the payment of his attorney's fees under this theory.

B. The pension board did not violate the trust law.

¶ 13. Marquardt next argues that he should be paid his attorney's fees because trust law permits an award of attorney's fees under circumstances similar to those found here. He cites Matter of Great Northern Iron Ore Properties, 311 N.W.2d 488 (Minn. 1981), for support. In Great Northern, the Minnesota court determined that the attorney's fees for both the trustee and the prevailing beneficiaries were payable from the trust estate, because the litigation resolved a dispute among certain beneficiaries and thus conferred a benefit to the trust. Id. at 495. Marquardt extrapolates that the pension board, like the trust found in Great Northern, has been conferred a benefit by Marquardt's litigating whether the 15% increase should be exempted from the ordinance's operation. Marquardt insists he performed a service for the pension board by resolving this issue. Further, citing foreign law, he notes that a trust can be ordered to pay the attorney's fees of both the trustee and the beneficiaries when a trustee fails to act impartially. We remain unpersuaded by both arguments.

¶ 14. Again, our examination of the pleadings reveals no cause of action pleading a trust law claim. Nowhere in the pleadings is there an allegation that the pension board breached its fiduciary duty to Mar-quardt. Nor could there be, as the pension board's ordinance interpretation, while eventually found to be incorrect, was, nevertheless, properly undertaken. Further, Great Northern is inapposite. There is no trust involved here like that found in Great Northern. Our dispute revolves around the interpretation of an ordinance and its interplay with a state statute.

¶ 15. Additionally, Marquardt has failed to develop his second argument. In the only Wisconsin case he cited, Richards v. Barry, 39 Wis. 2d 437, 159 N.W.2d 660 (1968), the trust paid the parties' attorneys' fees because the trustee could not substantiate his accounts and was found to have been negligent. Id. at 444-45. No negligence was proven here. Indeed, the trial court specifically found no negligence on behalf of the county or the pension board. Therefore, we reject Marquardt's second argument as it has been inadequately developed. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

C. The Weinhagen rule does not apply to the facts presented here.

¶ 16. Another exception to the American rule's prohibition against attorney fee awards to the opposing party is the judicially-created equitable exception, called the Weinhagen rule, following the holding in Weinhagen v. Hayes, 179 Wis. 62, 190 N.W. 1002 (1922). This exception permits the award of attorney's fees to an adverse party if the wrongful acts of a defendant have involved a plaintiff in litigation with others, or placed him in such relation with others as to make it necessary for the plaintiff to incur expenses to protect his interest. Id. at 65; see also Meas v. Young, 142 Wis. 2d 95, 102, 417 N.W.2d 55 (Ct. App. 1987).

¶ 17. Under Weinhagen, attorney's fees are recoverable from a wrongdoer only if they were incurred by a party who was forced to litigate with a third party. See Meas, 142 Wis. 2d at 104. Marquardt's suit was commenced against the County and its pension board. Marquardt reasons that because corporation counsel acted "wrongfully," he was forced into suit with the pension board. We have already rejected this argument concerning corporation counsel. Further, the County and the pension board's actions never required Mar-quardt to litigate with a third party. Rather, Marquardt sued the County and the pension board directly because he disagreed with the pension board's interpretation of a Milwaukee County ordinance. Consequently, the Weinhagen rule permitting the payment of attorney's fees is inapplicable to our facts.

D. Marquardt is not entitled to recover his attorney's fees under the private attorney general doctrine.

¶ 18. Finally, Marquardt claims he was acting under the "private attorney general" doctrine because he was "maintaining the viability of the safety violation penalty of Sec. 102.57." We disagree.

¶ 19. Generally, the "private attorney general" doctrine permits an individual acting to enforce the public's rights to be awarded his or her attorney's fees from the losing party. See Hartman v. Winnebago County, 216 Wis. 2d 419, 422, 433 n.8, 574 N.W.2d 222 (1998). Our supreme court first modified the American rule to allow this type of recovery in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984). There, while affirming the American rule's vitality, id. at 758, the court held that the Wisconsin Fair Employment Act impliedly authorized an award of attorney fees in matters within its jurisdiction where "a complainant who files a complaint under the Fair Employment Act is acting as a 'private attorney general' to enforce the rights of the public and to implement public policy. ..." Id. at 764. The supreme court found that the Fair Employment Act implicitly permitted an attorney fee award because the purpose of the Act was to make the victim "whole." Id.

¶ 20. The "private attorney general" doctrine was addressed again in a case defining an individual's rights under the Family Medical Leave Act. See Richland Sch. Dist v. DILHR, 166 Wis. 2d 262, 479 N.W.2d 579 (Ct. App. 1991). There, this court held that the claimant was entitled to all his attorney's fees incurred "in the proceedings before the department, on the ch. 227 review in the circuit court and on his appeal." Id. at 281. Relying on the Watkins rationale, this court concluded that attorney's fees were authorized under the Act for successful representation in the circuit court, id. at 285, and in the proceedings before the department, id. at 282-83. We also awarded the claimant attorney's fees in his appeal. Id. at 287; see also Sheely v. DHSS, 150 Wis. 2d 320, 339-40, 442 N.W.2d 1 (1989).

¶ 21. However, in Kremers-Urban Co. v. Employers Insurance Co., 119 Wis. 2d 722, 351 N.W.2d 156 (1984), an argument that a provision of the Uniform Declaratory Judgments Act, Wis. Stat. § 806.04(10), permitted an award of attorneys' fees under a similar theory as that proposed in Watkins was rejected. Id. at 745-46. The court in Kremers-Urban refused to "imply the power to award [attorney] fees from statutes," since the "legislature is presumed to have acted with full knowledge of the general rule that attorney[ ] fees are not recoverable unless expressly authorized by statute." Id. at 746. Again, in Milwaukee Teacher's Educ. Ass'n v. Milwaukee Board of School Directors, 147 Wis. 2d 791, 433 N.W.2d 669 (Ct. App. 1988), this court refused to affirm the award of attorney's fees by an arbitrator where no statute or arbitration agreement permitted such an award. Id. at 797-98.

¶ 22. In rejecting Marquardt's request for the payment of attorney's fees under the "private attorney general" doctrine, the trial court noted that in every case in which the issue of the payment of attorney's fees has been approved, attorney's fees have been authorized in some fashion in the underlying statutory provisions.

It doesn't appear that Wisconsin Appellate courts have ever addressed this in its most pure form. By that I mean I don't know that there is a case that addresses this in the setting where there is no statutory authority whatsoever for attorneys fees and where the Court applied the doctrine as the sole and exclusive source of the authority for the fees....
... I interpret Watkins to establish the following standards or criteria for the use of the doctrine.
One is that the underlying suit needs to be one which attempts to enforce certain rights of the public. That case involved enforcement of the Wisconsin Fair Employment Act and specifically involved enforcement of it on a charge of racial discrimination.
Secondly, and this may really be a part of the first rather than a separate requirement, but the language of the case makes clear that the underlying suit needs to be one which attempts to implement public policy which the legislature considered to be of major importance.
... [This] was not a case where the integrity of Section 102.57 hung in the balance as a matter of public interest, only a question of how it interacted with ordinances involving a particular pension fund.
... I can find no public policy at issue here which could be considered to be of the same level of importance as the Wisconsin Fair Employment Act or one which I can find the legislature has in some way indicated that it has enacted some statutory scheme of major importance. And similarly, I see no counterpart to this lawsuit effectuating some broader legislative purpose.

We agree and adopt the trial court's thoughtful analysis.

¶ 23. In order for Marquardt to prevail on his theory that he was acting as a private attorney general, he was required to show that some statutory basis existed for his request for attorney's fees. Here, there is none. Contrary to Marquardt's contention, this case was not about Marquardt's entitlement to Wis. Stat. § 102.57 benefits. Those rights had already been determined. This case dealt with the interpretation of a county ordinance. No statutes permit the recoupment of attorney's fees for challenging the interpretation of an ordinance. Further, Marquardt was obligated to prove that the right he was enforcing was a public right. The parties disputed the setoff provisions of Marquardt's worker's compensation benefits against his disability pension. No sweeping policy decision affecting a large class of persons was implicated in this litigation. Absent those findings, the American rule requires that each party pay his/her own attorney. As noted in Kremers-Urban, 119 Wis. 2d at 746, we must employ the American rule, and departures from the rule are narrowly drawn exceptions. This is not one of them. Thus, we affirm the trial court.

By the Court. — Orders affirmed.

SCHUDSON, J.

¶ 24. (dissenting). Deciding Marquardt's appeal last year, we recognized the legislative objective of Wis. Stat. § 102.57, and how Milwaukee County's denial of Marquardt's claim for the fifteen percent penalty under the statute defeated that objective:

Extending our analysis in our "quest to identify and give effect to the legislature's intent,"... we travel an easy road, paved by our supreme court many years ago. In Daniels v. Industrial Comm'n, 214 Wis. 2d 649, 6 N.W.2d 640 (1942), the supreme court explained the purpose of Wis. Stat. § 102.57: "The legislative objective is plainly to put upon the employer the duty of providing safety appliances of a certain standard and to penalize those who fail to conform. It is hoped that such a penalty will promote compliance with the regulations." Id. at 651, 6 N.W.2d 640 (emphases added). Obviously, ... permitting the offset to encompass the penalty shifts the payment from the employer to the employee, defeating the statute's clear objective.

Marquardt v. Milwaukee County, 2000 WI App 77, ¶ 16, 234 Wis. 2d 294, 610 N.W.2d 496. Just as obviously, relieving the County of responsibility for Marquardt's attorney's fees also "defeatfs] the statute's clear objective." See id. Thus, I conclude that Marquardt's claim for attorney's fees is encompassed by the "private attorney general" doctrine declared in Watkins v. LIRC, 117 Wis. 2d 753, 764, 345 N.W.2d 482 (1984).

¶ 25. By pursuing his correct claim for the fifteen percent penalty, Marquardt produced appellate clarification of Wis. Stat. § 102.57. See Marquardt, 2000 WI App 77 at ¶¶ 3-18. Moreover, by pursuing his claim, Marquardt produced not only the proper application of that statute to his case, but also the statute's meaningful enforcement of a safety statute potentially affecting countless corrections officers and others. See id. In the process, he incurred substantial attorney's fees far exceeding his modest recovery. Paraphrasing the supreme court's comments about the plaintiff in Watkins:

[Marquardt] incurred substantial attorney's fees which, if unreimbursed, would place [him] in a significantly worse economic position than when [he] began [his] suit. It would be contrary to the purposes of [Wis. Stat. § 102.57] if the person whose rights have been vindicated ends up in an economically worse position than when he or she started.

Watkins, 117 Wis. 2d at 764.

¶ 26. Therefore, under the private attorney general doctrine, Marquardt is entitled to recover the attorney's fees he paid "in order to fully enforce and give meaning to the rights created" by Wis. Stat. § 102.57. See id. at 765. Accordingly, I respectfully dissent.

       Marquardt's award is authorized by Wis. Stat. § 102.57 (1997-98) which permits a 15% increase in a worker's compensation award when an "injury is caused by the failure of the employer to comply with any statute." An administrative law judge determined that the injury to Marquardt, a former Milwaukee County correction officer, occurred as a result of Milwaukee County's violation of the safe place statute.

        See generally Weinhagen v. Hayes, 179 Wis. 62, 190 N.W. 1002 (1922).

       Subsequent references to Milwaukee County Code of Gen. Ordinances will be cited as MCC.

       Marquardt speculates that the County may have taken the legal position it did in the underlying lawsuit because it accrued to its benefit. He also argues that the County attorney held a grudge against him because he prevailed at the worker's compensation hearing. These conclusions are unfounded and we choose not to address them. Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995) (reviewing court need not address "amorphous and insufficiently developed" arguments); State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

       Marquardt has presented no argument or support for his request for punitive damages. We therefore deem the issue abandoned. See State v. Johnson, 184 Wis. 2d 324, 344, 516 N.W.2d 463 (Ct. App. 1994) ("On appeal, issues raised but not briefed or argued are deemed abandoned.").

       Marquardt's ad damnun clause does request the following: "For exemplary or punitive damages should the finder of the fact determine th[ ]at the actions of the defendants constituted a willful, wanton or wrongful disregard of his rights." No such findings were ever made.

       Under the dissent's rationale, any claimant who clarifies a law is acting as a private attorney general. This interpretation distorts the doctrine established in Watkins.