author: BROWN, J.

text:
    Orion Flight Services, Inc., Plaintiff-Respondent, v. Basler Flight Service, a division of Basler Turbo Conversions, LLC, Defendant-Appellant.
    Court of Appeals

      No. 03-1731.

      Submitted on briefs October 21, 2004.

    Decided November 24, 2004.

    2004 WI App 222
    (Also reported in 692 N.W.2d 804.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Laura A. Brenner, Beth Ermatinger Hanan and Christopher E Dombrowicki of Reinhart Boerner Van Deuren SC of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Russell A. Klingaman and Jeffrey D. Patza of Hinshaw & Culbertson of Milwaukee.
    A nonparty brief was filed by Thomas L. Skalmoski of Weiss Berzowski Brady LLP of Milwaukee for Petroleum Marketers Association of Wisconsin/Wisconsin Association of Convenience Stores, Inc.
    A nonparty brief was filed by Colleen D. Ball of Wauwatosa for Midwest Airlines and Wisconsin Aviation Trades Association, Inc.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review granted 3-8-2005.

   BROWN, J.

¶ 1. This case involves a dispute between Orion Flight Services, Inc. and Basler Flight Service, A Division of Basler Turbo Conversions, LLC, two vendors of aviation fuel, about whether the Unfair Sales Act requires Basler to set minimum prices in accordance with the Unfair Sales Act's minimum markup provisions for motor vehicle fuel. They also dispute whether Orion has a private cause of action against Basler for not following those provisions. We conclude that the markup and private cause of action provisions do not apply because the legislature did not understand "motor vehicle fuel" to include aviation fuel. The legislature intended these provisions to protect small businesses from being run out of business by the predatory pricing practices of large competitors. "Mom and pop" establishments simply are not in the business of selling fuel for use in aircraft. Moreover, closely related statutes exclude aircraft from the definition of "motor vehicles." We therefore reverse the circuit court's preliminary injunction forcing Basler to sell at marked-up costs and dismiss Orion's complaint.

¶ 2. Pursuant to a lease with Winnebago county, Basler has sold aviation fuel at Wittman Regional Airport in Oshkosh, Wisconsin since 1957. It is a fixed base operator (FBO), a vendor of services at an airport or airfield. Basler sells Jet A fuel and 100 LL aviation fuel. It operates a self-service pump as well as a fleet of trucks that travel to aircraft for refueling.

¶ 3. On May 29, 2002, Winnebago county entered into a separate lease with Orion to operate as an FBO at Wittman. Orion, like Basler, sells 100 LL aviation fuel using a fleet of trucks. It does not operate a pump, however.

¶ 4. Orion began its operations at Wittman on August 21. Its price per gallon on aviation fuel was $2.54. At that time, Basler sold its truck-delivered fuel for five cents per gallon higher, $2.59, while it priced its pumped fuel significantly lower, at $1.90 per gallon. In late September, Orion dropped its price to $1.99 per gallon. A price war ensued.

¶ 5. On September 22, following Orion's price decrease, Basler lowered its truck price to $1.89 per gallon and its pump price to $1.79 per gallon. Orion responded a few days later by changing its price per gallon to $1.69. Basler lowered its pump price one week later to $1.59 per gallon, where it stayed until early January 2003.

¶ 6. In January, Basler raised its pump price first to $1.65 per gallon and then, on January 8, to $1.80 per gallon. On February 20, it again raised the price to $1.99 per gallon. Because the record contains no data on Orion's prices following the $1.69 per gallon price change, it is unclear at what point the price war ended. In any event, it continued for several months.

¶ 7. In November 2002, as this battle continued, Orion complained to the Wisconsin Department of Agriculture, Trade and Consumer Protection. Orion alleged that Basler had violated the Unfair Sales Act, Wis. Stat. § 100.30 (2001-02), by selling at below-cost prices. The DATCP began an investigation.

¶ 8. On March 19, before the DATCP had informed the parties of the results of its investigation, Orion filed a complaint in the Winnebago county circuit court alleging the violation of the Unfair Sales Act. The complaint prayed for declaratory and injunctive relief as well as damages. Orion obtained an ex parte temporary restraining order, which prohibited Basler from selling below the statutory minimum price and set March 27 as the hearing date on Orion's motion for preliminary injunctive relief.

¶ 9. Two days later, on March 21, the DATCP sent Basler a warning letter, detailing the results of its investigation. It determined that Basler had been in violation of Wis. Stat. § 100.30 for selling its 100 LL aviation fuel below cost when § 100.30 prohibits the below-cost wholesale or retail sale of merchandise. The DATCP calculated Basler's minimum legal selling price (its cost) at approximately $1.78 and concluded that Basler's violation had continued until January 8, 2003, when it had raised its per gallon price to $1.80.

¶ 10. The warning letter further stated that the DATCP did not find Basler in violation of the minimum markup provisions of Wis. Stat. § 100.30, which require sellers of motor vehicle fuel to sell at a minimum markup above their real costs. According to the letter, the DATCP had concluded that 100 LL aviation fuel did not fall within the meaning of "motor vehicle fuel" as used in the Unfair Sales Act. The DATCP retracted this conclusion later the same day, however, in response to a phone call from Orion's attorney. It decided that it needed more time to research that particular issue before issuing a final interpretation.

¶ 11. The hearing on Orion's preliminary injunction motion began on March 27 and continued on May 2. During the interim, Basler filed its answer and counterclaim to the complaint. Essentially, it admitted the factual allegations related to pricing on various dates but denied that it sold motor vehicle fuel. According to Basler, Orion had no cause of action because the Unfair Sales Act does not recognize a cause of action against sellers of aviation fuel. In the alternative, it counterclaimed for injunctive and declaratory relief, as well as damages against Orion for violating the Unfair Sales Act.

¶ 12. To sum up the main thrust of the parties' positions below, Basler relied on Wis. Stat. ch. 78 for its argument that the Wisconsin legislature did not intend for "motor vehicle fuel" to encompass fuel used in aircraft. It pointed out that ch. 78, the only section of the Wisconsin Statutes to define the term, contained separate definitions for "motor vehicle fuel" and "aviation fuel." It asserted that because the two statutes were related insofar as ch. 78 computed the taxes that Wis. Stat. § 100.30 required sellers to add in their minimum markup price, they should be read together. Both statutes, therefore, had the same definition of "motor vehicle fuel," and the omission of a reference to aviation fuel in § 100.30 must have been by legislative design. Chapter 78 defines "motor vehicle fuel" as "gasoline or diesel fuel" and "motor vehicle" as "any automobile, truck, truck-tractor, tractor, bus, vehicle or other conveyance that is self-propelled by an internal combustion engine or motor and licensed for highway use, except that 'motor vehicle' does not include mobile machinery and equipment." Wis. Stat. § 78.005(12), (13) (emphasis added).

¶ 13. Basler concluded that because the markup and private cause of action provisions in the statutes referred only to motor vehicle fuel, (1) the markup provisions were inapplicable and (2) Orion could not rely on Wis. Stat. § 100.30 for a private cause of action against Basler. Basler also relied on the common meaning of "motor vehicle" as excluding aircraft in support of its determination that "motor vehicle fuel" did not include aviation fuel. Basler also contended that the policy of the statute was to protect "mom and pop" gas stations from large loss leaders like Wal-Mart and that in doing so, the legislature did not mean to target FBO's selling aviation fuel.

¶ 14. Orion countered that the definition of "motor vehicle fuel" in Wis. Stat. ch. 78 did not apply. It argued as follows. Chapter 78 and the Unfair Sales Act were not sufficiently related and should not be read together: ch. 78, the tax code, had an entirely different purpose from Wis. Stat. § 100.30, a consumer protection measure. Moreover, the definition of "motor vehicle fuel" in the DATCP's implementing regulations to § 100.30 applies. According to Wis. Admin. Code § ATCP 105.001(4) (Sept. 2004), " 'Motor vehicle fuel' means any liquid prepared, advertised or sold for use as or commonly and commercially used as a fuel in internal combustion engines." "The definition is very straight forward [sic] — and clearly includes fuel sold for use in ... aircraft." Because the definition is unambiguous, the court may begin and end with the plain language of the regulation. The common meaning of "motor vehicle fuel" includes fuel used in aircraft. Aircraft are vehicles propelled by motors.

¶ 15. Orion's argument continued: Basler's argument that the DATCP exceeded its authority in defining "motor vehicle fuel" this way simply lacks support. The Wisconsin legislature implicitly ratified the DATCP's definition when, subsequent to the DATCP's definition, the legislature amended the Unfair Sales Act without defining the term differently. Finally, applying the Unfair Sales Act to Basler serves the purpose of the Unfair Sales Act because Basler is engaging in the kind of "predatory pricing scheme" that the Act intended to prohibit, i.e., one in which a vendor sells below cost in order to outprice smaller competitors and run them out of business. Orion pointed out that "Basler has considerably greater resources than Orion" and can deal more easily with lost revenues. Moreover, Orion argued that if it went out of business, the type of consequences that Wis. Stat. § 100.30(1) references might ensue, namely, losses of jobs, nonpayment of loans and taxes, possible bankruptcy, and disruption of leases, the last presumably referring to its own lease with Winnebago county.

¶ 16. The circuit court ultimately ruled in favor of Orion and granted a preliminary injunction. The court signed the order on June 17, 2003. The circuit court relied heavily on the statute's policy of preventing sellers from running competitors out of business. It appeared to accept the definition of "motor vehicle fuel" in Wis. Admin. Code ch. ATCP 105 over the Wis. Stat. ch. 78 definition based on (1) the differing purpose of the tax statutes and (2) an assumption that excluding Basler's sale of aviation fuel from the definition would circumvent the purpose of Wis. Stat. § 100.30. It stated,

And when I look it seems real clear to me that when we start to talk about the Unfair Sales Act that at least in my mind we use the definition as it has been found in Chapter — of the Ag Code of 119 and 105. It is that generic definition of the internal combustion. There is a lot of things that if it wasn't that definition, don't make sense to me. Doesn't make sense to me that I can ride up in my boat on the side of the river, fill up, and not be subject to this definition even though I have the exact same Chevrolet engine in my boat that was in my car that I just got out of to get into my boat.

¶ 17. We accepted Basler's interlocutory appeal, in part because the preliminary injunction presupposed that Wis. Stat. § 100.30 provided Orion with a cause of action. We received briefs from the parties as well as two amicus briefs. One brief was from the Petroleum Marketers Association of Wisconsin/Wisconsin Association of Convenience Stores, Inc. We received the other from Midwest Airlines and Wisconsin Aviation Trades Association, Inc.

¶ 18. Basler essentially requests this court to review the legal sufficiency of Orion's complaint, arguing that we ought to dismiss the case for failure to state a cause of action. We review this issue de novo. Williams v. Security Sav. & Loan Ass'n, 120 Wis. 2d 480, 482, 355 N.W.2d 370 (Ct. App. 1984). We will not determine that a complaint fails to state a claim unless it is obvious that the plaintiff could not recover under any circumstances. Id. at 482-83.

¶ 19. In this case, the dispositive facts are uncontested. Both parties agree what prices Basler charged for its fuel and when it charged those prices. They further agree that they are competing vendors of 100 LL aviation fuel. They simply disagree about whether this type of fuel qualifies as motor vehicle fuel for purposes of the Unfair Sales Act, such that the minimum markup provisions apply and the statute gives Orion a private cause of action against Basler. When the parties agree on the facts and merely dispute the applicable law, the case presents a question of law that we review independently. State v. Briggs, 214 Wis. 2d 281, 285, 571 N.W.2d 881 (Ct. App. 1997). Here, we must ascertain the applicable law by interpreting Wis. Stat. § 100.30. Statutory construction also involves a question of law that mandates our de novo review. Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996). Our interpretation of a statute attempts to give effect to the legislative intent, based on the statute's language, scope, history, context, subject matter, and purpose. Id. We ascertain these factors by examining the text and structure of the statute, rather than extrinsic sources, unless the statute is ambiguous. See State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 48, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 20. We begin with the language of Wis. Stat. § 100.30. Subsection (3), entitled, "Illegality of loss leaders," reads in part:

Any sale of any item of merchandise either by a retailer, wholesaler, wholesaler of motor vehicle fuel or refiner, at less than cost as defined in this section with the intent or effect of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor, impairs and prevents fair competition, injures public welfare and is unfair competition and contrary to public policy and the policy of this section. Such sales are prohibited.

(Emphasis added.) For motor vehicle fuel, "cost" includes a minimum markup amount. Depending on the identity of the vendor (whether it qualifies as a refiner, a wholesaler, or a person other than a refiner or wholesaler), whether the vendor sells at a retail station or at some other place, and whether the sale is a retail sale or wholesale sale, the minimum markup percentages vary among 3%, 6%, and 9.18%. See generally § 100.30(2)(am)lm., (c)lg. and lr. The Unfair Sales Act also contains special rules for calculating costs of tobacco and certain alcohol products. See generally § 100.30(2)(am)l. and (c)l. For other merchandise, the Unfair Sales Act contains no markup requirements in computing "cost." See § 100.30(2)(am)2. and (c)2. Subsection (5m) allows injured parties to bring a private cause of action against any vendor who sells- motor vehicle fuel in violation of subsec. (3).

¶ 21. The statute contains no definition of "motor vehicle fuel." Meanwhile, both parties contend that their respective definitions of the term represent its true commonsense meaning. Certainly, if we leave aside the context and history of the statute and simply look at those three words, neither party advances a definition wildly at odds with common sense. Given the theoretical plausibility of either definition, we must look at other factors to ascertain the legislative intent.

¶ 22. We begin with the policy behind the act, as stated by the legislature. We have already quoted Wis. Stat. § 100.30(3), which prohibits selling "at less than cost." Moreover, the legislature included a policy statement in subsec. (1), detailing some of the consequences the legislature intended the Unfair Sales Act to avoid. As Orion has pointed out, these consequences include commercial dislocations, misleading consumers, burdening commerce and diverting business from dealers who price their products fairly, unemployment, disruption of leases, and nonpayment of taxes and loans. See § 100.30(1). From this language, we conclude that the legislature intended the Unfair Sales Act to prevent large vendors from driving small competitors out of business — indeed, it seems clear that, all else being equal, a business will be unable to topple a competitor with similar resources.

¶ 23. Given the legislature's intention to protect small businesses, we cannot accept a definition that encompasses every type of fuel that one would put into a vehicle with a motor. To do so would include fuels, such as jet fuel, that small "mom and pop" establishments would not even be in the business of selling in the marketplace. It is obvious that jets must use enormous amounts of fuel and that with enormous quantities come huge revenue flows. Jet fuel is easily a million-dollar market. It is also common knowledge that these mass quantities of fuel somehow have to be stored and transported to the aircraft. Common sense would reveal that this sort of market is, as Midwest/WATA state in their amicus brief, "beyond the ken" of the "mom and pop" businesses the legislature intended to protect.

¶ 24. We also conclude that including aviation fuel in the definition of "motor vehicle fuel" strays too far from the legislative intent. Plainly, the idea that one vendor will be able to undermine the business of a competing vendor by keeping its prices below those of its competitor rests on the assumption that consumers keep apprised of current pump prices. Aircraft pilots obviously do not fly around looking for aviation fuel stations en route in the same way an automobile driver watches the signs on the highway. Similarly, they do not move on to the next station if they believe they can get a better price there. They are destination based, and they get their fuel from whatever station happens to be at their assigned destination.

¶ 25. The legislative context and history of Wis. Stat. § 100.30 further support our conclusion that "motor vehicle fuel" as used in the Unfair Sales Act excludes aviation fuel from its definition. As Midwest and WATA point out, when we interpret statutory language, we may look to language in surrounding and related provisions. See Kalal, 271 Wis. 2d 633, ¶ 46.

Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.

Id. (citations omitted). We must read § 100.30 in the context of Wis. Stat. ch. 100 — entitled, "Marketing; TRADE PRACTICES" — as a whole. The statutes in this chapter are not only "surrounding" statutes because they appear in the same chapter but are also "closely related" because they all deal with trade and marketing.

¶ 26. In 1986, when the Wisconsin legislature first introduced the term "motor vehicle fuel" into the Unfair Sales Act, see 1985 Wis. Act 313, other provisions in Wis. Stat. ch. 100 defined the term "motor vehicle," and we must assume that "motor vehicle fuel" meant the type of fuel used in a "motor vehicle" as these provisions defined it. These other provisions in the 1985-86 version of the statutes cross-referenced to the definition of "motor vehicle" contained in Wis. Stat. § 340.01(35) (1985-86). See Wis. Stat. §§ 100.205(l)(c), 100.21(l)(d), and 100.42(l)(h) (1985-86). Section 340.01(35) (1985-86) stated that "motor vehicle" meant "a vehicle which is self-propelled." (Emphasis added.) A follow-up provision, § 340.01(74) (1985-86), defined "vehicle" in pertinent part as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway." (Emphasis added.) Moreover, although not necessary to our conclusion that the Wisconsin legislature's original intended definition of "motor vehicle" meant to include only vehicles transported or drawn upon a highway, we note that all of the provisions just discussed remain substantively the same in the current version of the Wisconsin Statutes.

¶ 27. Although Orion urges us to look to the definition of "motor vehicle fuel" in Wis. Admin. Code § ATCP 105.001(4), the legislative intent in 1986 was clear. The DATCP's mandate to promulgate implementing regulations was limited to those that were "not inconsistent with law." See Wis. Stat. §93.07(1) (1985-86) (giving the DATCP authority to make regulations for the enforcement of Wis. Stat. ch. 100). Even if we assume that the DATCP intended its definition to include aviation fuel, "[t]he rule-making power [of an administrative agency] does not extend beyond the power to carry into effect the purpose as expressed in the enactment of the legislature. 'A rule out of harmony with the statute is a mere nullity.1" Village of Plain v. Harder, 268 Wis. 507, 511, 68 N.W.2d 47 (1955) (citations omitted). Because we have construed the Unfair Sales Act to exclude aviation fuel from its intended meaning of "motor vehicle fuel," the DATCP's definition may extend no further.

¶ 28. We conclude that Basler does not need to mark up its prices because neither party is in the business of selling "motor vehicle fuel" as used in the Unfair Sales Act. We emphasize that Orion is not left out in the cold by this ruling, at the mercy of predatory pricing by Basler. Nothing in our decision allows Basler to sell its fuel for less than what it cost; it simply clarifies that Wis. Stat. § 100.30 does not require Basler to inflate its costs in calculating its minimum legal selling price. Separate and apart from whether Basler is selling motor vehicle fuel, the Unfair Sales Act also prohibits a vendor from selling any merchandise below cost. Therefore, if Basler sells its nonmotor vehicle fuel below cost, it is a violation of the Unfair Sales Act. We point out, however, that Orion would not have a private cause of action in this instance. Private causes of action pertain only to sales of motor vehicle fuel and tobacco products. Thus, Orion's proper remedy is to alert the attorney general or the DATCE See § 100.30(4) (the DATCP or a district attorney may commence an action). Accordingly, we reverse the circuit court's award to Orion of preliminary injunctive relief.

By the Court. — Order reversed.

       The parties appear to disagree about who began this "price war." We understand Basler to blame Orion for starting it with the $1.99 per gallon price change. Presumably, Orion saw the price change as a reaction to Basler's pump price. We take no position on this issue.

       All references to the Wisconsin Statutes are to the 2001-02 version unless noted otherwise.

       Basler also argued that applying the minimum markup provisions in the Unfair Sales Act to Basler would violate due process based on insufficient notice. We need not address this argument, which Basler reasserts here, given our disposition of the case.

       All references to the Wisconsin Administrative Code are to the Sept. 2004 version unless otherwise noted. The definition in the current version is identical to the one Orion relied upon below.

       The Midwest/WATA brief discusses several differences between the jet fuel market and the market for motor vehicle fuel. We acknowledge Orion’s concern, which it stated in its written motion for leave to respond to the Midwest/WATA brief, that this brief is essentially an advocacy brief that brings up numerous facts not of record. The differences that Midwest and WATA asserted between the jet fuel market and the sale of motor vehicle fuel were chief among those facts Orion found objectionable. To be sure, Midwest and WATA bring up numerous facts not of record to support their conclusion that "Small companies are not players in a marketplace where futures contracts for jet fuel sell for millions of dollars." For example, they tell us that unlike drivers of roadway vehicles, jet fuel consumers often purchase their fuel years in advance via multimillion-dollar oil futures contracts, not based on daily pump prices. They also tell us that it takes 150 tons of fuel to fill one Boeing 747. Although these facts are certainly consistent with our commonsense impression and lead to the same conclusion, we have not relied upon them.
      Moreover, although the parties agreed below that their dispute did not include the sale of jet fuel, which both parties sell, counsel for Orion opined at the motion hearing that the ATCP definition of "motor vehicle fuel" would extend to jet fuel as well because jet engines have internal combustion chambers. We agree that jet fuel is relevant insofar as it illustrates how far away from the legislative intent we would stray if we followed Orion's contention about the meaning of "motor vehicle fuel" to its logical conclusion. Midwest and WATA are proper amici to point out that issue, given their large economic stake — as participants in the jet fuel industry — in our decision.

       Orion protests in its motion for leave to respond to the Midwest/WATA brief that the definitions contained in Wis. Stat. § 340.01 are irrelevant because whereas the other provisions in Wis. Stat. ch. 100 contained a cross-reference, the Unfair Sales Act did not. We find this argument without merit. Although it "would have been very easy for the legislature to add a reference to [Wis. Stat. ch.] 340 in the text of [Wis. Stat.] § 100.30," we are still faced with the fact that § 100.30 did not contain its own definition. Thus, at the time the statute was enacted, we would still have looked to the related provisions in ch. 100 to ascertain the intended meaning of the term.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Arthur C. List, Defendant-Appellant.

    Court of Appeals

      No. 03-3149-CR.

      Submitted on briefs August 5, 2004.

    Decided November 24, 2004.

    2004 WI App 230
    (Also reported in 691 N.W.2d 366.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Joseph L. Potito, Rockford, Illinois.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jason J. Hanson, Dane County Assistant District Attorney, Madison.
    Before Dykman, Vergeront and Lundsten, JJ.

       Petition to review denied 3-8-2005.

   DYKMAN, J.

¶ 1. Arthur List appeals from a judgment denying his motion to dismiss a complaint brought against him for operating a motor vehicle while intoxicated (OWI) — second offense, contrary to Wis. Stat. § 346.63(l)(a) (2001-02) and operating a motor vehicle with a prohibited alcohol concentration (PAC) —second offense, contrary to § 346.63(l)(b). List contends that he was improperly charged with second-offense OWI because his first-offense OWI did not count as a prior conviction under Wis. Stat. § 343.307(l)(d). We disagree and affirm.

Background

¶ 2. On February 20, 2002, Arthur List was arrested for OWI after crashing his vehicle into a ditch in rural Dane County. List committed a separate drunk-driving offense in Illinois for which an Illinois court placed List on eighteen months' court supervision. The Dane County District Attorney charged List with second-offense OWI and second-offense PAC for the February 20th incident, counting the Illinois violation as List's first offense. List moved to dismiss the second-offense OWI and PAC charges because he asserted that the Illinois supervision order did not constitute a first offense. The court denied List's motion, and convicted him at a bench trial. List appeals. His appeal was assigned to a single judge pursuant to Wis. Stat. § 752.31(2)(c). The Chief Judge granted the State's motion asking that this case be heard by a three-judge panel to permit publication of our decision. See Wis. Stat. Rule 809.23(1)(b)4. (providing that one-judge decisions should not be published).

Discussion

¶ 3. The issue in this case is whether an Illinois court's placement of an OWI offender under court supervision is a "conviction" that should be counted as a prior offense when charging an OWI suspect in Wisconsin. This is a question that requires interpretation of relevant Wisconsin statutes. We review questions of statutory interpretation de novo. State v. Campbell, 2002 WI App 20, 4, 250 Wis. 2d 238, 642 N.W.2d 230.

¶ 4. Under Wisconsin's accelerated penalty structure for OWI offenses, the severity of a defendant's penalty is based on the defendant's number of prior OWI convictions. Wis. Stat. § 346.65(2). When determining the penalty for OWI, courts count "[cjonvictions under the law of another jurisdiction that prohibits . . . use of a motor vehicle while intoxicated ... or with an excess or specified range of alcohol concentration ... as those or substantially similar terms are used in that jurisdiction's laws." Wis. Stat. § 343.307(l)(d).

¶ 5. List contends that under Wis. Stat. § 343.307(l)(d) only OWI offenses that result in formal conviction as defined by the laws of a foreign state count for the purpose of charging a Wisconsin OWI suspect. He asserts that court supervision is not a conviction under Illinois law. "Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime." 730 III. Comp. Stat. 5/5-6-3.1(f) (2002). He also cites an Illinois case, People v. Sheehan, 659 N.E.2d 1339, 1342 (Ill. 1995), which opines that had Illinois' accelerated penalty regime for drunk-driving offenses used the word "convicted" (the statute uses "committed") when determining which offenses would be counted for deciding the proper charge, only formal convictions would count for that purpose. He concludes, therefore, that his placement on court supervision cannot be counted toward the calculation of the Wisconsin offense.

¶ 6. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal, v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. "If the meaning of the statute is plain, we ordinarily stop the inquiry." Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659. "[A] statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses." Kalal, 271 Wis. 2d 633, ¶ 47 (citations omitted). "If a statute is ambiguous, the reviewing court turns to the scope, history, context and purpose of the statute." State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591; but see Kalal, 271 Wis. 2d 633, ¶ 48 ("[S]cope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources, such as legislative history").

¶ 7. We conclude that the pertinent language of Wis. Stat. § 343.307(l)(d) is unambiguous because we do not believe reasonably well-informed persons would find it susceptible to two or more different interpretations. The statute reads that courts count "convictions under the law of another jurisdiction that prohibits . .. use of a motor vehicle while intoxicated ...." Section 343.307(l)(d). List isolates "[c]onvictions under the law of another jurisdiction" from the rest of the statute to conclude that the statute's purpose is to count only "convictions" as the term is defined by the law of the foreign state. But "statutory language is interpreted in the context in which it is used; not in isolation but as a part of a whole ..." Kalal, 271 Wis. 2d 633, ¶ 46. We read "under the law of another jurisdiction" not as delimiting "convictions," but rather as introducing and pertaining to "that prohibits" and the remainder of the paragraph.

¶ 8. Moreover, the final phrase of Wis. Stat. § 343.307(l)(d), "as those or substantially similar terms are used in that jurisdiction's laws," indicates the broad scope of para. (d). When determining an OWI penalty, Wisconsin even counts prior offenses committed in states with OWI statutes that differ significantly from our own. State v. White, 177 Wis. 2d 121, 125, 501 N.W.2d 463 (Ct. App. 1993) (holding that though Minnesota's OWI statute required proof of elements not contained in Wisconsin's OWI statute, the statute did not preclude counting a Minnesota conviction when calculating the severity of the penalty).

¶ 9. List's approach would require us to interpret the law of another state whenever an OWI defendant has received a penalty less than a judgment of conviction for a previous offense. This interpretation rests upon the unreasonable assumption that the Wisconsin Legislature intended to delegate to other states the authority to determine the severity of penalties for Wisconsin repeat OWI offenders. Kalal, 271 Wis. 2d 633, ¶ 46 (explaining that statutes should be construed to avoid absurd and unreasonable results).

¶ 10. We turn instead to Wisconsin law to determine whether a disposition of court supervision in Illinois is a "conviction" for the purposes of arriving at the correct OWI charge. The traffic code defines "conviction" as

an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal, an unvacated forfeiture of property deposited to secure the person's appearance in court, the payment of a fine or court cost, or violation of a condition of release without the deposit of property, regardless of whether or not the penalty is rebated, suspended, or probated, in this state or any other jurisdiction.

Wis. Stat. § 340.01(9r). In List's case, his placement under court supervision was a result of a determination that he "violated or failed to comply with the law in a court of original jurisdiction." Id. The Illinois sentence was therefore a conviction as defined by Wisconsin law, and counts toward the determination of the severity of his penalty.

¶ ll; Further, as the State notes, because Wisconsin does not permit deferred prosecution agreements for alcohol-related driving offenses, to give preferential treatment at sentencing to those convicted in states that permit such agreements would be inconsistent with the policy choice of our legislature. Counting offenses committed in other states effectuates the purposes of OWI and repeater statutes in general. State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828 (1980) ("Because the clear policy of the statute is to facilitate the identification of drunken drivers and their removal from the highways, the statute must be construed to further the legislative purpose."); State v. Banks, 105 Wis. 2d 32, 49, 313 N.W.2d 67 (1981) ("[T]he purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.").

By the Court. — Judgment affirmed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       WISCONSIN Stat. § 343.307(l)(d) provides in full:
      Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction's laws.


author: VERGERONT, J.

text:
    Sheri D. Meyers, Plaintiff-Appellant, v. Patrick Schultz, Defendant-Respondent.
    Court of Appeals

      No. 04-0542.

      Submitted on briefs October 14, 2004.

    Decided November 24, 2004.

    2004 WI App 234
    (Also reported in 690 N.W.2d 873.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeff Scott Olson of The Jeff Scott Olson Law Firm, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Corey F. Finkelmeyer, asst, attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Deininger, PJ., Dykman and Vergeront, JJ.
   VERGERONT, J.

¶ 1. The issue on this appeal concerns the scope and application of the ministerial duty exception to immunity for state employees. Sheri Meyers was injured when she sat in a chair that had been assembled by Patrick Schultz, an employee of the Department of Workforce Development. The circuit court granted summary judgment, dismissing her negligence claim against Schultz on the ground that he was immune from suit because he was engaged in a discretionary act. Meyers contends that, because of the manufacturer's instructions, Schultz was performing a ministerial act, not a discretionary act, when assembling the chair and therefore he is not immune from suit.

¶ 2. We conclude that a ministerial duty does not arise from the manufacturer's instructions because a ministerial duty must be imposed by law. Because the rule is immunity and because the one exception to the rule that Meyers advances does not apply, we conclude the circuit court properly granted summary judgment in favor of Schultz. We therefore affirm.

BACKGROUND

¶ 3. Schultz is an employee of the Division of Vocational Rehabilitation (DVR) within the department, and Meyers was one of his clients. Pursuant to the individualized employment plan for Meyers that Schultz developed with her, Meyers was receiving training in office and computer skills at New Way Directions. She told Schultz that she needed a better chair than those provided at New Way Directions, and DVR authorized the purchase of a chair. Meyers picked out a chair at Office Depot, it was delivered to New Way Directions, and Schultz assembled the chair.

¶ 4. In his deposition, Schultz testified that he followed the instructions in assembling the chair. Meyers testified that when she was told the chair was ready, she pushed the chair over to her work station, which had a plastic mat over the carpet. As soon as she sat in the chair, it tipped backwards, then rocked wildly, causing her to experience severe pain and causing injuries that required medical treatment.

¶ 5. Meyers filed this action alleging that Schultz committed a "ministerial act of negligence" in two ways: (1) in spite of a warning on the chair, he provided the chair with dual wheel casters for use by Meyers on a plastic floor mat; and (2) he failed to properly insert the caster shafts into their mounting sockets when he assembled the chair. Schultz answered, denying negligence. He also moved for summary judgment on the ground that he was entitled to immunity because he was engaged in a discretionary act and did not violate a ministerial duty.

¶ 6. In opposition to the motion, Meyers argued that the act of assembling the chair was "purely ministerial." She submitted the report of a safety engineer who concluded that the accident occurred for the following reasons: the adjustment settings were inappropriate for Meyers's weight and height and were in an unlocked position; four of the five casters were not properly inserted; and the dual casters were intended to be used only on carpeted surfaces. With respect to this last cause, the expert referred to the warning on the underside of the seat cushion that stated that the dual wheel casters "function best on carpeted floors [and] [i]f the chair is to be used on a hard surface, use of [these] casters could result in unexpected rolling and in injury from tipping or collision." Rubber wheel casters, the warning said, for use on "hard surfaces ... and floor mats are available at extra cost from your dealer."

¶ 7. The circuit court granted Schultz's motion. It concluded that a ministerial duty is one prescribed by law, and there was no duty established by law that Schultz was shown to have breached. Therefore, the court decided Schultz was entitled to immunity under Wis. Stat. § 893.80(4).

DISCUSSION

¶ 8. On appeal, Meyers renews her contention that the act of assembling the chair was purely ministerial. Once Schultz decided to assemble the chair, she asserts, he had a ministerial duty to follow the instructions of the manufacturer, and he was not engaged in a discretionary act simply because the instructions were not prescribed by law.

¶ 9. When we review the grant or denial of a summary judgment motion, we apply the same methodology as does the circuit court, and our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08.

¶ 10. The defense of discretionary act immunity for public officers and employees assumes negligence and focuses on whether the action or inaction upon which liability is premised is entitled to immunity. Lodi v. Progressive Northern Ins. Co., 2002 WI 71, ¶ 17, 253 Wis. 2d 323, 646 N.W.2d 314. Thus, the factual disputes that may exist on whether Schultz was negligent do not prevent summary judgment in his favor. Id., ¶ 16. The proper scope of the common law doctrine of discretionary act immunity, when there are no disputed facts, is a question of law. Bicknese v. Sutula, 2003 WI 31, ¶ 15, 260 Wis. 2d 713, 660 N.W.2d 289. Because there are no factual disputes material to the application of the immunity doctrine in this case, summary judgment is an appropriate way to resolve the application of the doctrine to the undisputed facts.

¶ 11. Immunity for public officers and employees is grounded in common law, Kimps v. Hill, 200 Wis. 2d 1, 9, 546 N.W.2d 151 (1996), and is based largely on public policy considerations that spring from an interest in protecting the public purse and a preference for political rather than judicial redress for actions. Lodl, 253 Wis. 2d 323, ¶ 23.

¶ 12. The general rule is that state officers and employees are immune from personal liability for injuries resulting from acts performed within the scope of their official duties. Kimps, 200 Wis. 2d at 10. The rule, however, is subject to exceptions, representing a "judicial balanc[e] [struck between the need] of public officers to perform their functions freely [and] the right of an aggrieved party to seek redress." Lister v. Board of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). The exception at issue in this case is that a state officer or employee is not shielded from liability for the negligent performance of a purely ministerial duty. Kimps, 200 Wis. 2d at 10.

¶ 13. As the court in C.L. v. Olson, 143 Wis. 2d 701, 711, 422 N.W.2d 614 (1988), observed, the definition of ministerial duty has remained substantially the same since it was adopted in Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955), from E. McQuillin's treatise on Municipal Corporations: "A ... duty [that] is absolute, certain and imperative, involving merely the performance of a specific task, when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." 143 Wis. 2d at 711 (citing Lister, 72 Wis. 2d at 301).

¶ 14. We observe that the court in Meyer referred to another definition of ministerial duty, from a Florida case, apparently viewing it as having essentially the same meaning as that from McQuillin:

[A] duty is to be regarded as ministerial when it is a duty that has been positively imposed by law, and its performance required at a time and in a manner, or upon conditions which are specifically designated; the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion.

Meyer, 271 Wis. at 332 (citing First Nat. Bank v. Filer, 145 So. 204, 207 (Fla. 1933)). The supreme court in Lodi, 253 Wis. 2d 323, ¶ 26, referred to this Florida court definition as well as that originating from McQuillan's treatise, again suggesting the two mean essentially the same thing. More recently in Scott v. Savers Property and Cas. Ins. Co., 2003 WI 60, ¶¶ 27-28, 262 Wis. 2d 127, 663 N.W.2d 715, while first quoting the Florida court definition from Meyer, the court made clear that the definition of ministerial duty from Lister, which we have quoted above in paragraph 13, is the formulation courts are to use. The significant point for purposes of this appeal is that both the Lister definition, originating from McQuillin's treatise, and the definition from the Florida court define a ministerial duty as one imposed by law.

¶ 15. Meyers recognizes that the definition of ministerial duty contains the requirement that the duty be one imposed by law, but, she asserts, this requirement "appears to be something that gratuitously crept into the formula [and] has nothing to do with distinguishing the discretionary functions that the doctrine is designed to protect." We disagree.

¶ 16. As the court in C.L. pointed out, the distinction between ministerial and discretionary acts is not of recent origin, but was articulated in Druecker v. Salomon, 21 Wis. 621 (1867), and rooted in concepts initially set forth in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 143 Wis. 2d at 711 n.5. In explaining the distinction, the court in Druecker stated:

where the heads of departments are the political or confidential agents of the executive merely to execute his will, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of the country for a remedy.

21 Wis. at 637 (emphasis added). Thus, as first articulated by a Wisconsin court, the concept of a duty imposed by law was inherent in the concept of a ministerial duty.

¶ 17. The principle we discern from Druecker for permitting liability for injuries when a ministerial duty is involved is that individuals have a right to expect public officers and employees to perform the duties that have been specifically mandated by the government. This principle does not support the imposition of liability for breach of a ministerial duty in this case, where there is no governmental mandate, but, rather, the instructions of a private manufacturer.

¶ 18. Meyers relies on a number of cases holding that, although public officials have the discretion whether to act in the first instance, once they choose to act they have a ministerial duty to act in a particular way. See, e.g., Chart v. Dvorak, 57 Wis. 2d 92, 102, 203 N.W.2d 673 (1973) (stating that although decision whether to place sign is a legislative one, if a sign is placed it must conform to the directives of the highway commission); Allstate Ins. Co. v. Metro. Sewerage Comm'n, 80 Wis. 2d 10, 16, 258 N.W.2d 148 (1977) (stating that failure to perform ministerial duty would arise if manhole had hot been placed according to the city commission's plan); Major v. County of Milwaukee, 196 Wis. 2d 939, 944-45, 539 N.W.2d 472 (Ct. App. 1995) (stating that county officers had discretion to decide whether to sell county property and to determine terms of sale, but once county entered into a contract, the officers had a ministerial duty to comply with its terms). However, in each of these cases, the source of the ministerial duty was governmental: a directive or plan prepared by a governmental unit or a contract under which the governmental unit undertook certain obligations. None of these cases support treating a private manufacturer's instructions as a source for a ministerial duty. As the court in Kierstyn v. Racine Unified School Dist., 228 Wis. 2d 81, 93, 596 N.W.2d 417 (1999), explained: the public officers in these cases "were deemed to have a ministerial duty not because they elected to act. They were deemed to have a ministerial duty because they elected to act and the subject matter of their action imposed specific legal obligations on the manner in which they were to act." (Emphasis added.)

¶ 19. We conclude that a ministerial duty is one that is imposed by law. "Law" in this context means, at a minimum, an act of government. "Law" includes "statutes, administrative rules, policies or orders[,]" Ottinger v. Pinel, 215 Wis. 2d 266, 274, 572 N.W.2d 519 (Ct. App. 1997), overruled on another point of law by Bicknese, 260 Wis. 2d 713, ¶¶ 18 n.3, 19; it includes plans adopted by a governmental unit, Allstate Ins. Co., 80 Wis. 2d at 16; it includes contracts entered into by a governmental unit. Major, 196 Wis. 2d at 944-45. "Law" does not include the private manufacturer's instructions on the chair.

¶ 20. Accordingly, we conclude that Schultz did not have a ministerial duty to assemble the chair in a particular way. Because the rule is immunity and because the one exception to the rule that Meyers advances does not apply, we conclude the circuit court properly granted summary judgment in favor of Schultz.

By the Court. — Judgment affirmed.

       The complaint also named the Department of Workforce Development as a defendant, but the department was dismissed based on Meyers's concession that sovereign immunity applied to it.

       We use the term "instructions" to include the warning regarding the dual wheel casters.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Public policy considerations include:
      (1) The danger of influencing public officers in the performance of their functions by the threat of lawsuit; (2) the deterrent effect which the threat of personal liability might have on those who are considering entering public service; (3) the drain on valuable time caused by such actions; (4) the unfairness of subjecting officials to personal liability for the acts of their subordinates; and (5) the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office.

        Kimps v. Hill, 200 Wis. 2d 1, 9, 546 N.W.2d 151 (1996).

       In her brief, Meyers cites to Wis. Stat. § 893.80(4) as the source of the legal standard. This provides:
      (4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
      However, this statute does not apply to state officers and employees, only to municipal officers and employees. Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 683 n.20, 292 N.W.2d 816 (1980) (referring to Wis. Stat. § 895.43(3) (1977), renumbered § 893.80(4) by 1979 Wis. Laws, ch. 323, § 29, effective July 1, 1980). Unlike immunity for municipal officers and employees, for state officers and employees immunity is the rule and liability is the exception. Lodi v. Progressive Northern Ins. Co., 2002 Wl 71, ¶ 22, 253 Wis. 2d 323, 646 N.W.2d 314 (citing Kimps, 200 Wis. 2d at 11 n.6, 546 N.W.2d 151 (1996)). Nonetheless, the statutory phrase "legislative, quasi-legislative, judicial and quasi-judicial functions" has been interpreted to mean the same as the term "discretionary" that is used at common law with respect to state officers and employees, C.L. v. Olson, 143 Wis. 2d 701, 717 n.9, 422 N.W.2d 614 (1988); and the concepts and theories underlying immunity and its exceptions are generally the same for state and municipal officers and employees. Kimps, 200 Wis. 2d at 10 n.6. Therefore, the analysis from cases involving one generally applies to the other. C.L., 143 Wis. 2d at 717 n.9. As relevant to this case, the exception for ministerial duty applies both to state officers and employees and to municipal officers and employees, and the case law does not distinguish between the two in addressing the scope of this exception. See Lodl, 253 Wis. 2d 323, ¶ 25 (involving a municipal employee and relying on the definition of ministerial duty from Lister v. Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976), which involved a state employee). Accordingly, unless there is a specific reason to do so, we do not distinguish in our discussion of the cases between those involving immunity for state officers and employees and those involving immunity for municipal officers and employees.

       The court in Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955), quoted the definition from 18 McQuillin, Mun. Corp. (3d ed.), p. 225, sec. 53.33 in this way: "Official action ... is ministerial when it is absolute,, certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode an occasion for its performance with such certainty that nothing remains for judgment or discretion." Id. The court in C.L., 143 Wis. 2d at 711, saw no significance in the difference in wording between Lister and Meyer, describing the definition as having "remained substantially the same."

       Meyers cites Druecker v. Salomon, 21 Wis. 621 (1867), for a later statement that "[i]t is sometimes difficult to draw the exact line of distinction between ministerial and discretionary or judicial authority [and] [t]he same officer may act sometimes in one capacity, and sometimes in the other." Id. at 637. This proposition is true, but it does not aid in resolving the issue presented on this appeal.

       For the same reason, Robinson v. Rohr, 73 Wis. 436, 40 N.W. 668 (1888), which Meyers cites in her reply brief, does not support her position. There the court held that when adopting construction plans the members of the municipal board were exercising their judicial and legislative powers, but when they carried out the plan, they were acting in a ministerial capacity and therefore not immune from liability. Id. at 441.


author: SNYDER, J.

text:
    Marc J. Ackerman, Plaintiff-Appellant, v. Malcolm K. Hatfield, Defendant-Respondent.

    Court of Appeals

      No. 04-1008.

      Submitted on briefs October 21, 2004.

    Decided November 24, 2004.

    2004 WI App 236
    (Also reported in 691 N.W.2d 396.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert L. Elliott, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Kevin J. Lyons and Smitha Chintamaneni of Davis & Kuelthau, S.C., Milwaukee.
    Before Anderson, EJ., Nettesheim and Snyder, JJ.

       Petition to review denied 3-8-2005.

   SNYDER, J.

¶ 1. Marc J. Ackerman, Ph.D., appeals from a summary judgment entered in favor of Malcolm K. Hatfield, M.D. Dr. Ackerman contends that the circuit court erred when it decided issues of material fact without the benefit of a trial. We agree and reverse the summary judgment.

FACTS

¶ 2. The current action is but the latest in a ten-year history of litigation involving these two parties. An overview of this history is necessary to place the current case in context. The interaction between the parties began in 1993 when Dr. Hatfield's wife filed for divorce. In that proceeding, Dr. Ackerman, a licensed clinical psychologist, served as the expert for the guardian ad litem of the Hatfields' minor daughter. In his report, Dr. Ackerman opined that Dr. Hatfield had been involved in inappropriate family behavior and recommended, among other things, that there be restraining orders in place to prohibit Dr. Hatfield from having contact with his wife and daughter.

¶ 3. Dr. Hatfield then engaged in a letter-writing campaign to discredit Dr. Ackerman. He wrote to Attorney Michael Phegley, the guardian ad litem, promising to sue Dr. Ackerman for malpractice and repeated this accusation in letters to a variety of recipients, including: Governor James E. Doyle (who at that time was Wisconsin's Attorney General), various doctors in the Milwaukee area, the Family Court Counseling Service of Racine, and the Wisconsin Committee on Child Support, Custody and Visitation. Dr. Hatfield also created a self-styled news release in which he alleged that Dr. Ackerman and the Racine County Family Court conspired to remove Dr. Hatfield's daughter from the home, harmed his daughter by doing so, and were "well paid for their efforts." Dr. Hatfield addressed the release to "Legislators, Editors, County Executives."

¶ 4. In January 1996, Dr. Hatfield filed a lawsuit against Dr. Ackerman, alleging fraud, breach of contract, malpractice, and intentional infliction of emotional distress. Six months later the circuit court granted summary judgment in favor of Dr. Ackerman, holding that Dr. Hatfield and his attorney had commenced the action for the sole purpose of harassing Dr. Ackerman. We affirmed the disposition on appeal, and our supreme court denied Dr. Hatfield's petition for review.

¶ 5. Dr. Hatfield continued to publish materials attacking Dr. Ackerman's competence and ethics, including a Web posting that accused Dr. Ackerman of malpractice and of violating all professional codes of conduct. In April 2001, Dr. Ackerman filed a lawsuit against Dr. Hatfield, alleging libel and slander, negligence, malicious prosecution, and conspiracy to damage business reputation. The matter settled in March 2002 when Dr. Hatfield agreed to pay $90,000 and Dr. Ack-erman agreed to dismiss all claims pending at the time.

¶ 6. Dr. Hatfield filed a complaint against Dr. Ackerman with the Wisconsin Department of Regulation and Licensing (DRL) in July 2002. The case was assigned to the Wisconsin Psychology Examining Board and investigated by the DRL's Division of Enforcement. The case against Dr. Ackerman was closed when the board determined there had been no violation.

¶ 7. On September 6, 2002, Dr. Hatfield sent a letter to Attorney Phegley disputing certain unpaid guardian ad litem fees. In this letter, Dr. Hatfield stated that Dr. Ackerman had filed an unsuccessful defamation suit and that he had "dropped his claim after he knew he would lose the pending jury trial. This is a de facto admission that [Dr. Ackerman] did indeed commit malpractice." Dr. Hatfield copied this letter to Racine County Circuit Court Judge Richard Rreul, Racine County Family Court Commissioner Kevin Van Ka-mpen, and Wisconsin State Assembly Representative Bonnie Ladwig.

¶ 8. Dr. Ackerman filed suit against Dr. Hatfield for the second time on January 31, 2003. He alleged defamation arising from the September 6, 2002 letter to Attorney Phegley and abuse of process and malicious prosecution based on the DRL complaint. Dr. Hatfield moved for summary judgment, which the circuit court granted, and Dr. Ackerman appeals.

DISCUSSION

Standard of Review

¶ 9. Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2001-02). We will reverse a decision granting summary judgment if either (1) the trial court incorrectly decided legal issues, or (2) material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). When reviewing a summary judgment, we employ the same methodology as the circuit court and our review is de novo. Gross v. Woodman's Food Mkt., Inc., 2002 WI App 295, ¶ 30, 259 Wis. 2d 181, 655 N.W.2d 718, review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (No. 01-1746). Where the complaint states a claim for relief and the answer joins issue, we then look to the affidavits to determine whether there are any issues of material fact that would entitle the opposing party to a trial. Id. Any reasonable doubt as to the existence of a factual issue must be resolved against the party moving for summary judgment. Maynard v. Port Publ'ns, Inc., 98 Wis. 2d 555, 563, 297 N.W.2d 500 (1980).

Statutory Immunity for Good-Faith Filings

¶ 10. Dr. Hatfield's motion for summary judgment to dismiss Dr. Ackerman's abuse of process and malicious prosecution claims relied on the statutory immunity found in Wis. Stat. § 440.042(2), which states in relevant part:

Any person who in good faith . . . provides the department or any examining board, affiliated credentialing board or board in the department with . . . information on a matter relating to the regulation of a person holding a credential is immune from civil liability for his or her acts or omissions in testifying or otherwise providing such advice or information. The good faith of any person specified in this subsection shall be presumed in any civil action and an allegation that such a person has not acted in good faith must be proven by clear and convincing evidence.

Dr. Hatfield asserts that the circuit court properly concluded that immunity attached and granted summary judgment because "there is some evidence to support Dr. Hatfield's 'good faith' complaint to the DRL" and therefore no genuine issue of material fact is left to be decided. "Good faith" is a state of mind evidencing "honesty in belief or purpose [or] absence of intent to defraud or to seek unconscionable advantage." Black's Law Dictionaky 713 (8th ed. 2004). To demonstrate that his complaint was filed in good faith, Dr. Hatfield asserts that he relied on the opinions of experts when filing it. He further asserts that he filed the complaint with the belief that his experts considered Dr. Ackerman's work in the original divorce case to constitute malpractice.

¶ 11. Dr. Ackerman responds that he is entitled to the opportunity to rebut the presumption of good faith. He is correct. The statute allows him the opportunity to prove by clear and convincing evidence that Dr. Hatfield did not act in good faith. Wis. Stat. § 440.042(2). Dr. Ackerman submits that he has presented sufficient evidence to demonstrate that a genuine issue of fact exists regarding Dr. Hatfield's good faith. Our review of the record supports Dr. Ackerman's position.

¶ 12. The contentious history between the parties, including Dr. Hatfield's published materials attacking Dr. Ackerman's competence and ethics, the lawsuits filed by the parties, and the timing of Dr. Hatfield's DRL complaint (just months after the defamation settlement), raises questions regarding Dr. Hatfield's motive for filing the DRL complaint. Further questions arise when we consider the divorce court's finding that:

[Dr. Hatfield is] an angry person who because of his occupation and money can threaten and intimidate to achieve his own purposes, who has a negative, condescending view of law and authority and who places his interests above all else. Such portrait is a composite of the in-court demeanor on and off the witness stand, his appearance and statements on the videotapes, his multiple letters, and his disregard of Court orders.

We see this echoed in Dr. Hatfield's 1996 lawsuit against Dr. Ackerman, where the court stated:

[Dr. Hatfield] is out for blood, that is the impression I get, and everyone else be damned. He's going to go after anyone, anyone that gets in his way.... That's a vindictive approach to the use of the process of law. And to me if that's not a fraud on the Court, I don't know what it is .... This was an action brought for the sole purpose of getting back at Dr. Marc J. Ackerman, to put him through the hoops.

¶ 13. Dr. Hatfield hired several experts to review Dr. Ackerman's work, including Dr. Richard Gardner, M.D., Dr. Ralph Underwager, Ph.D., and Dr. Timothy Caufield. He argues that his reliance on experts to support the DRL complaint demonstrates his good-faith filing and clinches his immunity.

¶ 14. Dr. Ackerman contends that the experts named by Dr. Hatfield had been discredited and could not form the basis of a good-faith belief for filing the DRL complaint. He supports his contention by citing the divorce proceedings in which the court held the opinions of Dr. Gardner to be "lacking in persuasiveness," "without a scientific basis," and "biased." The same court held that Dr. Underwager's opinions were "biased" and "foolish and totally ignore the facts." We agree with Dr. Ackerman that Dr. Hatfield's reliance on discredited experts may demonstrate his lack of good faith, or at the least raises a disputed issue of fact regarding good faith.

¶ 15. The circuit court dismissed Dr. Ackerman's causes of action for abuse of process and malicious prosecution, stating that "[t]o the extent that a basis was available to Dr. Hatfield to file a complaint based upon those allegations, I believe the policy of free and open access based upon good-faith submissions in this case at least provides a presumption of good faith and is supported by some basis." The court's role in a motion for summary judgment is not to decide genuine issues of material fact or to choose between conflicting interpretations of the facts. Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980). The court must deny a respondent's motion for summary judgment if the plaintiff presénts any evidence upon which a jury could find in the plaintiffs favor. Id. If disputed issues of material fact exist, or reasonable alternative inferences can be drawn from the facts, summary judgment is not appropriate. See id. at 338. We conclude that the record clearly demonstrates a disputed issue of material fact: whether Dr. Hatfield filed the DRL complaint in good faith. Summary judgment, therefore, was error.

Judicial Proceeding Privilege

¶ 16. Statements made in the course of judicial or quasi-judicial proceedings are protected by an absolute privilege so long as the statements "bear a proper relationship to the issues." Bergman v. Hupy, 64 Wis. 2d 747, 750, 221 N.W.2d 898 (1974). This privilege was established to provide litigants with freedom to access the courts "to preserve and defend their rights and to protect attorneys during the course of their representation of clients." Rady v. Lutz, 150 Wis. 2d 643, 648, 444 N.W.2d 58 (Ct. App. 1989). Statements claiming the judicial or quasi-judicial absolute privilege must meet certain criteria. The statement "must be made in a procedural context that is recognized as affording absolute privilege, and it must be relevant to the matter under consideration." Id. at 647-48. Furthermore, to invoke the privilege, the statement's maker and recipient must be involved in and closely connected to the proceeding. Id. at 649.

¶ 17. The relevant facts are not disputed. The September 6, 2002 letter, its contents, author, and recipients are all a matter of record. The dispositive issue, therefore, is whether the statements Dr. Hatfield made in his letter are protected by the absolute privilege. The circuit court held that, given the facts, the absolute privilege did apply. Whether the absolute privilege applies is a question of law that we review de novo. See id. at 647. We will reverse a decision granting summary judgment if the circuit court incorrectly decided a legal issue. Coopman, 179 Wis. 2d at 555.

¶ 18. The statement in question appeared in Dr. Hatfield's September 6, 2002 letter, which was sent to Attorney Phegley and copied to State Assembly Representative Bonnie Ladwig, Racine County Family Court Commissioner Kevin Van Kampen, and Racine County Circuit Court Judge Richard Kreul. In the letter, Dr. Hatfield stated:

Unfortunately, your so called "expert", Marc Acker-man, Ph.D., filed an unsuccessful claim for defamation in April, 2001.... Ackerman eventually dropped his claim after he knew he would lose the pending jury trial. This is a de facto admission that he did indeed commit malpractice....
I think its [sic] best you took your ball and went home. Just like Marc Ackerman did.

¶ 19. Dr. Hatfield argues that the letter in its entirety addresses guardian ad litem fees and was written in the procedural context of his divorce proceeding, specifically relating to postjudgment custody issues. He asserts that he only sent the letter to "a select group of individuals, all of whom were related to his ongoing divorce proceeding." Dr. Hatfield's argument fails for two reasons.

¶ 20. First, there is an insufficient connection between the allegedly defamatory statements regarding a "de facto admission that [Dr. Ackerman] did indeed commit malpractice" and the contested guardian ad litem bill. "[A] nexus between the publication and the proceeding must exist for the 'procedural context' requirement of the absolutely privileged rule to be met." Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257, 267, 258 N.W.2d 712 (1977). Dr. Hatfield claims that his absolute privilege attached by virtue of the divorce proceeding; however, by Dr. Hatfield's own calculation, no action on the divorce proceeding had occurred for almost sixteen months. Moreover, the alleged defamatory statements in the September 6 letter relate to Dr. Ackerman's 2001 defamation lawsuit against Dr. Hatfield, not to the divorce proceedings. We hold that the letter was not "an integral part" of the divorce lawsuit and does not satisfy the relevancy requirement. See id.

¶ 21. Second, Dr. Hatfield sent the letter to Representative Ladwig, who was not involved in the divorce proceeding. To invoke the privilege, both the sender and the recipient must be involved in and closely connected to the procedural context. Rady, 150 Wis. 2d at 649. We conclude that Representative Ladwig was not so connected. She had no official role in the divorce proceeding. Further, she was not involved in the defamation case that Dr. Hatfield cites in the September 6, 2002 letter.

¶ 22. Our application of the relevant factors to the record facts clearly demonstrates that the letter sent by Dr. Hatfield lacked the required nexus between the judicial proceeding and the statements made. Further, the circulation of the letter outside that circle of individuals who might arguably be connected to the judicial proceeding takes the letter beyond the boundaries of absolute privilege. Defamatory statements that are plainly irrelevant, impertinent and voluntarily made are not privileged. Id. For these reasons, summary judgment based on absolute privilege was error.

CONCLUSION

¶ 23. Summary judgment is a drastic remedy. We conclude it was inappropriately granted on all causes of action put forth by Dr. Ackerman. The circuit court improperly decided issues of material fact with regard to Dr. Hatfield's defense of statutory immunity under Wis. Stat. § 440.042(2). Upon Dr. Ackerman's presentation of evidence refuting Dr. Hatfield's good-faith DRL filing, the court's duty was to deny summary judgment rather than to decide the issue without the benefit of a trial. See Grams, 97 Wis. 2d at 338. We further conclude that the circuit court erred when it improperly applied the legal rule of absolute privilege to Dr. Hatfield's September 6, 2002 letter. The judgment is reversed, and the matter is remanded for trial.

By the Court. — Judgment reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against John A. Ward, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. John A. Ward, Respondent-Appellant.
    Supreme Court

      No. 03-0349-D.

      Oral argument November 3, 2004.

    Decided February 8, 2005.

    2005 WI 9
    (Also reported in 691 N.W.2d 689.)

      For the respondent-appellant there were briefs by Craig W. Nelson and Nelson, Connell & Conrad, S.C., Brookfield, and oral argument by Craig W. Nelson.

    For the complainant-respondent there was a brief by Robert G. Krohn and Roethe, Krohn, Pope, McCarthy, Haas & Robinson, LLP, Edgerton, and oral argument by Robert G. Krohn.

   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law, and recommendations of referee Rose Marie Baron for sanctions, pursuant to SCR 22.17(1). Attorney John A. Ward was found to have engaged in unprofessional conduct in the course of his practice of law in violation of the Rules of Professional Conduct. The referee recommended a public reprimand.

¶ 2. We approve the findings, conclusions and recommendations, and determine that Attorney Ward's misconduct warrants a public reprimand.

¶ 3. Attorney Ward was licensed to practice law in Wisconsin in 1985. He received a private reprimand for a violation of the Rules of Professional Conduct in 1999.

¶ 4. This case involves three counts: (1) failing to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3; (2) charging an unreasonable fee in violation of SCR 20:1.5(a); and (3) failing upon termination of representation to refund any unearned portion of an advanced fee in violation of SCR 20:1.16(d).

¶ 5. These counts involve Attorney Ward's representation, commencing in April 2001, of a woman from Kenosha in two matters. First, the client retained Attorney Ward to represent her in opposing a February 2001 motion filed in Milwaukee County by her former husband to establish visitation rights with their daughter. Second, the client retained Attorney Ward to commence a separate proceeding in Kenosha County to terminate her former husband's parental rights to the child. The client agreed to a "non-refundable minimum fee" of $10,000 to cover the first 50 hours of Attorney Ward's time with work beyond that to be billed at $200 per hour.

¶ 6. The client wanted Attorney Ward to immediately change the venue of the Milwaukee matter to Kenosha in order to cut down on his travel time and thereby reduce the hours he would have to spend on the case. She also believed that since she and the child lived in Kenosha, that was the appropriate county to litigate visitation. Finally, since the termination proceeding was going to be in Kenosha, she believed it was efficient to have all proceedings in that county.

¶ 7. There is a dispute whether Attorney Ward agreed with this strategy and consented to expeditiously attempt the venue change. In any event, Attorney Ward did not seek the venue change. At the initial May 2001 motion hearing before a Milwaukee County family court commissioner, he objected to venue but the commissioner advised him to raise it by written motion with the judge assigned to the case even assuming that could still be done in a timely fashion. Attorney Ward claims he had prepared a "rough draft" of a venue change motion before this hearing, but decided not to file it. The matter was adjourned to August 2001.

¶ 8. Attorney Ward filed the termination petition in Kenosha County later in May. A guardian ad litem was appointed for the child who soon advised Attorney Ward that she wanted to interview the child. However, the termination proceeding was adjourned in July by the Kenosha court to await the outcome of the visitation dispute that was still pending in Milwaukee.

¶ 9. When the visitation matter returned to court in August, the commissioner held it open for another month, sent it to the circuit court for resolution, and in the interim gave the former husband temporary visitation, at least in part because the client may have misrepresented the husband's alleged lack of contact with the child over the years and had impeded his past visitation. Throughout this period, Attorney Ward never sought the change of venue.

¶ 10. Within a few days after the August hearing, the client terminated Attorney Ward's services. She apparently was unhappy that temporary visitation had been awarded and that venue had not changed which she believed might have avoided the unfavorable temporary result. Attorney Ward admits that by this time he too realized the matter had to be moved to Kenosha.

¶ 11. Attorney Ward cooperated in forwarding his file to the client's new attorney. However, he refused her demand to return the unearned portion of the $10,000. His services, for what amounted to a four-month period from April to August, allegedly totaled 36.4 hours. Thus he was refusing to return at least $2720 (13.6 hours x $200 per hour) in unearned fees.

¶ 12. This court adopts the referee's findings of fact unless clearly erroneous. In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 498 N.W.2d 380 (1993). No deference is granted to the referee's conclusions of law and they are reviewed de novo. In re Disciplinary Proceedings Against Norlin, 104 Wis. 2d 117, 310 N.W.2d 789 (1981). The court may impose whatever sanction it deems appropriate regardless of the referee's recommendation. In re Disciplinary Proceedings Against Widule, 2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686.

COUNT 1

¶ 13. The referee concluded there had been a violation of SCR 20:1.13 due to Attorney Ward's failure to file a written motion seeking a change of venue as directed by his client.

¶ 14. Attorney Ward disputed that he had ever agreed to seek the venue change. He claims it was "not true" that it was in his client's interest to have the matter moved to Kenosha; that it was "absolutely simply a ploy" to even preliminarily raise a change of venue because he was only "testing the waters" and trying to feel out the opposition; that he initially did not "care one way or the other" whether there was a change of venue; that he eventually decided to "table" the idea because he thought things were going well in Milwaukee; and that this was "absolutely the type of tactical decision" that he — and not his client — should make.

¶ 15. Attorney Ward argued that there were several reasons why not seeking a venue change was a sound tactical decision. First, he claimed that the former husband's attorney — who would not have represented the husband had the case been transferred to Kenosha — was not particularly "aggressive" and Kenosha was a more litigious venue. Second, he claimed that his client had been uncooperative with the Kenosha guardian ad litem by not letting the guardian interview the child. Thus Attorney Ward supposedly believed it was better to keep the visitation dispute in Milwaukee. Third, Attorney Ward claimed that the Milwaukee action was going well, at least until August when the former husband got temporary visitation, and thus there was no reason to move it.

¶ 16. On the other hand, the client testified that Attorney Ward "assured me that that [change of venue] would be done" and that she was "of the impression" that the Milwaukee visitation matter would ultimately be moved to Kenosha which was her "main concern."

¶ 17. The referee acknowledged that an attorney is not liable under the Rules of Professional Conduct for errors in professional judgment that are made in good faith and/or are in the best interest of the client. Thus she acknowledged that the failure to seek the venue change was not misconduct per se.

¶ 18. However, the referee rejected Attorney Ward's defense stating:

Mr. Ward failed to file the requisite written motion seeking a change of venue from Milwaukee County to Kenosha County for approximately three months contrary to the direction and expectation of his client, his assurances that he would do so, and the direction of the Milwaukee Court Commissioner... It is argued that there were good reasons for not pressing for a change in venue and there was no harm done to the [client] ... I find that Mr. Ward's explanation of his strategy to keep the case out of Kenosha County and delay filing a change of venue motion until he was able to have a new Milwaukee guardian ad litem appointed (who presumably would provide a positive recommendation to the Kenosha guardian ad litem) is not credible.

¶ 19. Mindful of the applicable standard for our review of findings of fact and that the referee was best situated to judge the credibility of the witnesses, we conclude that these findings are not clearly erroneous. Further, we agree that these facts support the subsequent conclusion of law that this rule of professional conduct was violated.

¶ 20. There was a direct factual dispute between the client's understanding of what would occur by way of a venue change and Attorney Ward's insistence that he never agreed to take such action and that it would have been a bad tactical decision under the circumstances. The referee was obviously best situated to listen to the witnesses, assess their credibility, and resolve this factual dispute.

COUNTS 2 & 3

¶ 21. The referee concluded that Attorney Ward had charged an unreasonable fee in violation of SCR 20:1.5(a) and that a refund was in order under SCR 20:1.16(d). The Office of Lawyer Regulation (OLR) had not argued that the amount of the fee was unreasonable per se. Rather, it objected to it being nonrefundable under circumstances where the amount was not reasonable and here $10,000 was unreasonable in relation to the amount of time Attorney Ward put in on the case and the result he achieved.

¶ 22. The referee stated that Attorney Ward turned a "simple" visitation/termination dispute into a "complex legal endeavor" by allegedly spending over 36 hours to make a few appearances before a commissioner and never filing any written motions. Further, the referee found that much of the research Attorney Ward claimed he performed in this case — such as a memo-randa after the second commissioner hearing — was at a time when he should have anticipated his imminent discharge as counsel. The referee also termed the research "of questionable necessity, not on point, and of no value." The referee observed that Attorney Ward had no documents in the file that reflected the 26.3 hours of research he claimed he performed in this case. For example, there were no bills for electronic legal services, no computer files, no copies of a daily time record for the days for which he billed, or any contemporaneous notes. The referee acknowledged that it was evident Attorney Ward did some research, but found that the alleged total of over 36 hours was "unreliable."

¶ 23. The referee further found that Attorney Ward had not performed in an acceptable professional fashion in this case:

I do not believe that Mr. Ward exhibited the level of professionalism in his performance representing [the client] before the Family Court Commissioner that would he expected from someone with his many years of legal experience. Further, I find his apparent need to expend excessive hours on researching a relatively straightforward topic surprising given his professed ability as a family law practitioner. The record reflects that successor counsel, with far less experience than Mr. Ward, was able to bring the change of venue matter as well as the TPR to a speedy and successful conclusion without reliance on the subject matter jurisdiction issue that consumed so much of Mr. Ward's time. Thus, while acknowledging Mr. Ward's reputation among fellow lawyers, I must nonetheless find that his ability in this case falls below reasonable expectations.

¶ 24. As for the nonrefundability factor, the referee acknowledged that nonrefundable fees are not a per se violation but are typically permissible, in part, only where the nature of the reputation precludes the lawyer from accepting other representation, or the lawyer's experience, reputation, and skill may result in immediate benefit to the client without regard to whether extensive labor is performed. See Wisconsin Ethics Opinion E-93-4. Based on this, the referee concluded the nonrefundable aspect of this fee was unreasonable because Attorney Ward was not precluded from taking on other representation due to his representation of this client, and his experience, reputation, and skill were not at such a level as to give this client an immediate benefit.

¶ 25. The referee ultimately found that Attorney Ward performed 13.8 hours of legitimate research for a total time expenditure of 23.9 hours which at a rate of $200 per hour, amounted to $4780. The referee concluded that reasonable restitution to this client would thus be $5220.

¶ 26. The referee's findings with respect to this nonrefundable fee agreement are not clearly erroneous. The record does not support Attorney Ward's contention that the nature of the representation of this client precluded him from accepting other representation or that his experience, reputation and skill could result in immediate benefit to the client without regard to whether extensive labor was performed. Indeed, there certainly was no immediate benefit to this client.

¶ 27. Further, the referee's findings with respect to the amount to be refunded this client are not clearly erroneous. It obviously was difficult to create exactly what Attorney Ward legitimately did in this case, due in significant part to his lack of proper documentation. Again, the referee had the benefit of listening to the witnesses, examining any relevant documentation that did exist, and assessing Attorney Ward's assertions in his defense.

SANCTION

¶ 28. The referee recommended the public reprimand which the OLR sought. She agreed with its characterization of Attorney Ward as selfish and having intentionally misstated the amount of time he spent on this case. The referee reviewed several cases where public and private reprimands were issued but concluded they were not entirely comparable because of factual differences. However, the referee indicated that since there were three counts of misconduct, and particularly since Attorney Ward already has a private reprimand on his disciplinary record, a public reprimand was appropriate.

¶ 29. As previously noted, the referee also recommended restitution of $5220 to be awarded the client, plus interest at the statutory rate from the date Attorney Ward's services were terminated.

¶ 30. We adopt the referee's recommendation and therefore decide that a public reprimand is appropriate. Although there are indeed factual differences with similar prior cases, several are instructive. In Disciplinary Proceedings Against Tjader, 2002 WI 37, 252 Wis. 2d 94, 643 N.W.2d 87, resulted in a public reprimand for failure to act with reasonable diligence and return an unearned fee. Further, In Disciplinary Proceedings Against Koehn, 208 Wis. 2d 128, 559 N.W.2d 908 (1997), resulted in a public reprimand for failure to provide competent representation, failing to promptly file necessary documents, and failing to respond to a request for information from the client, under circumstances where the attorney had a prior disciplinary record. These, coupled with Attorney Ward's disciplinary record, indicate that a public reprimand is appropriate.

¶ 31. IT IS ORDERED that Attorney John A. Ward is publicly reprimanded.

¶ 32. IT IS FURTHER ORDERED that Attorney Ward's motion to dismiss the OLR complaint, objection to costs, motion to disallow or reduce costs, motion to hold in abeyance, and motion to supplement are denied.

¶ 33. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Ward shall pay: (1) the costs of this proceeding to the OLR in the amount of $18,097.26; and (2) his former client $5220 plus interest at the statutory rate from the date his representation was terminated. If these costs are not paid within the time specified, and absent a showing to this court of an inability to pay those costs within that time, the license of Attorney Ward to practice law shall be suspended indefinitely.

       SCR 22.17(1) provides: "(1) Within 20 days after the .filing of the referee's report, the director or the respondent may file with the supreme court an appeal from the referee's report."

       SCR 20:1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client."

       SCR 20:1.5(a) provides:
      "(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      (3) the fee customarily charged in the locality for similar legal services;
      (4) the amount involved and the results obtained;
      (5) the time limitations imposed by the client or by the circumstances;
      (6) the nature and length of the professional relationship with the client;
      (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
      (8) whether the fee is fixed or contingent."

       SCR 20:1.16(d) provides: "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law."

       Attorney Ward requests a change to this standard, claiming that it is too deferential where a referee knows nothing about the area of law in question. He argues that a referee who is not a family court commissioner does not have the expertise to judge the actions of an attorney in a family matter. We reject this argument and decline to alter the existing standard. Referees in attorney disciplinary matters do not typically require specialized knowledge to judge the conduct of the attorney. In the event a particular case allegedly requires more, referees are directed to Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 186 N.W.2d 258 (1971) (whether expert testimony is required under a given situation must be decided on a case-by-case basis); and Cramer v. Theda Clark Memorial Hospital, 45 Wis. 2d 147, 172 N.W.2d 427 (1969) (expert testimony is required to assist the adjudicator to understand complex issues).

       Attorney Ward introduced the testimony of two Racine County attorneys and former guardians to support his handling of the venue matter. Both testified that the alleged hostility of the Kenosha termination guardian would have justified keeping the visitation dispute in Milwaukee. But the referee noted that neither had talked with the Kenosha guardian to determine if indeed he had been hostile to Attorney Ward's client. Thus the referee concluded that neither witness had any direct knowledge of the facts.

       Attorney Ward was not charged with a violation of SCR 20:1.2(a) and (c) which require a lawyer to abide by a client's decisions concerning the objectives of representation unless the client consents after consultation to a change. Neither was he charged under SCR 20:1.4(a) and (b) which require the lawyer to keep the client reasonably informed about the status of a matter and to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. But it is apparent that if Attorney Ward had thoroughly discussed his alleged tactical designs with regard to venue and obtained her consent to delay the matter, the problems in this case might not have resulted.

       Attorney Ward's two witnesses had testified that a $10,000 nonrefundable fee was high but not unreasonable under the circumstances. But the referee considered this testimony to be "far too general to be of significant import" because, in part, both of the experts were based in Racine County.

       Attorney Ward contends he should not have to refund anything to his client because she was unsuccessful in a prior small claims action that sought a refund. However, claim or issue preclusion does not apply in this situation because the OLR was not a party to this client's action. Further the court specifically declined to render any opinion as to whether Attorney Ward breached the fee agreement or otherwise performed below the required threshold (it resolved the case against the client solely because she had not presented expert testimony). Finally, claims of attorney misconduct in this regard come before a referee with eventual review by this court, and this process cannot be short-circuited by an unsuccessful pro se action.

       We note that in the course of Attorney Ward's vigorous defense he advanced several contentions that are overzealous. To claim that "the referee's findings are result oriented, stemming from her obvious desire to rule for the OLR on every issue," that she "did not understand the evidence on a fairly basic level," and that she "made up" evidence, is unwarranted. Although they did not affect the 'outcome of this case, Attorney Ward's personal attacks on the integrity of the referee were unnecessarily contentious and inappropriate.