author: SCHUDSON, J.

text:
    Vera Hutson, Plaintiff-Appellant, v. State of Wisconsin Personnel Commission, Defendant-Respondent.

    Court of Appeals

      No. 01-2959.

      Oral argument July 17, 2002.

    Decided September 10, 2002.

    2002 WI App 249
    (Also reported in 654 N.W.2d 465.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Alan C. Olson, of Alan C. Olson & Associates, S.C., of New Berlin. There was oral argument by Alan C. Olson.

    On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David C. Rice, assistant attorney general. There was oral argument by David C. Rice.

    Before Wedemeyer, PJ., Fine and Schudson, JJ.

       Petition to review granted 12-10-02.

   SCHUDSON, J.

¶ 1. Vera Hutson, a probation and parole agent for the Wisconsin Department of Corrections (DOC), appeals from the circuit court order affirming a decision of the Wisconsin Personnel Commission dismissing her unlawful retaliation claim against DOC, under the Wisconsin Employee Protection Act (Subchapter III of Chapter 230, the Wisconsin State Employment Relations Act), commonly known as the "Whistleblower Law." The Commission, following a five-day hearing, determined that Hutson's memo to her supervisor, advising him of her caseload concerns, was not a disclosure of information protected under Wis. Stat. § 230.80 (1995-96) of the Whistleblower Law. The Commission concluded, therefore, that it need not address Hutson's allegation that DOC unlawfully retaliated against her when it reprimanded her within six months after she wrote the memo.

¶ 2. Hutson argues that the Commission erred in concluding that her memo was not a disclosure of information protected under the Whistleblower Law. She is correct and, accordingly, this court reverses and remands for the Commission's consideration of Hutson's unlawful retaliation claim.

I. BACKGROUND

¶ 3. The Commission provided a fifty-page decision and order detailing many aspects of this case that may prove important following remand. Here, however, we briefly recount only those findings, undisputed on appeal, that help to clarify the context of the case and define the dispositive issue in this appeal.

¶ 4. Hutson began her employment as a DOC probation and parole agent in 1990. As an agent, she was responsible for monitoring offenders placed on probation or parole through Wisconsin's criminal justice system. Her caseload, like that of other agents, was "calculated by using a point system designed to reflect the amount of time spent by the agent supervising offenders." For the period relevant to this case, a "memo of understanding" between DOC and Hutson's union provided for a caseload maximum of 260 points. The point system, however, "did not include a category for cases in which the agent did not meet with the offender on a scheduled basis."

¶ 5. In October 1995, Hutson was assigned to Unit 033, the Milwaukee office of a new "administrative minimum" program designed to work with a private vendor to provide telephone-monitoring of thousands of clients classified as low-risk offenders. In that assignment, Hutson reported to her supervisor, James Wake. Wake reported to Kathleen Ware, one of three deputy chiefs for the Milwaukee district, and Ware reported to Allan Kasprzak, chief of the Milwaukee region.

¶ 6. On February 5, 1996, Hutson wrote a memo, "Re: Workload Relief," to Wake, with copies to Ware and two union officials. The memo stated:

I am writing this correspondence to request workload relief and/or authorized overtime of one hour per every 5.5 points over the 260 point caseload cap per our union contractual agreement for the 1995-1997 contract year. I am currently supervising a total of 559 cases [,] 475 under my agent number and 84 for a co-worker who will be out on sick leave for the next four to seven weeks. I am 319 points above the 260 maximum caseload cap. According to the Department of Corrections manual CC/SD standards [,] cases classified as minimum are weighted as one point per case. I am aware of the fact that some specialized units are excluded from the 260 point caseload cap maximum. However, the exclusion only takes effect after a mutual agreement is reached between the Secretary of the Department of Corrections, the Regional Chief(s), D[OC] Employment Relations, AFSCME Council 24 and the local union. To my knowledge that has not occurred. Therefore, I am fully covered under the 1995-1997 contract and the agreement of a 260 workload cap maximum.
Due to the excessive workload and a caseload that continues to grow without a foreseeable end, coupled with the lack of clarity under a supervisory style that is extremely arbitrary and capricious[,] I have found the work environment to be highly stressful and terribly distracting to try to manage my caseload adequately and professionally. I am at this time requesting that reasonable guidelines be established that would enable me to perform my job to best meet the needs of the protection of the community, the Department of Corrections and myself as agent in the Minimum/Administrative unit.
Your response will be appreciated;
Sincerely,
Vera Hutson

(Footnote added.) According to the Commission's findings, "[t]wo other agents in Unit 033, Vicki Turner and Michelle McKinstry, were also understood to support the memo."

¶ 7. In a February 9, 1996 memo to Hutson, with a copy to Ware, Wake responded by scheduling a February 20 meeting to discuss Hutson's concerns. Hutson replied with a memo reminding Wake and Ware that, a few weeks earlier, she had been assigned to be in Beloit to enroll clients in the unit. Wake promptly replied, offering to reschedule the meeting.

¶ 8. In the meantime, however, on February 19, Hutson and Wake had a "heated argument" involving a court hearing and related matters. Wake then took several steps. He contacted two of Hutson's previous supervisors for information about their experiences with her; filed a complaint with DOC's Affirmative Action office alleging Hutson was harassing him and creating a hostile environment; began to maintain a file documenting his interactions with Hutson; restricted his contact with Hutson to communications in writing or conversations in the presence of witnesses; and he directed Hutson "to review a list of [Milwaukee] Region . . . cases 'without files' and take certain actions by March 1st."

¶ 9. On February 29, Wake and Ware met with Hutson regarding her memo; they also met with McK-instry and Turner. At the meeting with Hutson, Ware "explained that Unit 033 was not subject to the memo of understanding between the agents' union and management, regarding caseload." Thus, on March 5, Ware wrote a memo to Hutson, McKinstry, and Turner, stating:

As Supervisor James Wake and I have concluded meeting with each of you regarding your request for workload relief!,] I want to advise you that no formal action to reassign workload or reduce the number of cases assigned will be taken at this time. The reasons for this action are as follows:
• No point classification is assigned to cases within the unit at this time. As you were advised, the legislature removed workload credit for minimum/administrative from the CC/SD system effective Jan. 1, 1996.
• In your request you indicated that per manual chapter 02.03.01-.02!,] cases at minimum are assigned 1 point. As you were advised, you are not required to meet the manual standards of face to face contact or home visits!,] as appropriate!,] which based on a time study generated 1 point.
• At present the unit does not have an exemption to the memorandum of understanding; however, the process has been started.
Both Jim and I continue to remain open to your feedback and to specific suggestions you may have regarding making the work environment more productive and to increase the efficiency of the Unit. I look forward to your ideas for duties which a Program Assistant can assume to assist you in managing your workload.

¶ 10. On March 13, 1996, Wake convened a meeting "related to procedures and practices as well as issues within the unit." When, however, Hutson told Wake, "You are treating us like slaves," Wake "abruptly terminated the meeting."

¶ 11. On March 15, 1996, Hutson wrote a memo to Milwaukee Region Chief Kasprzak, with copies to Wake, Ware, and a union representative, stating that it seemed "no one [was] willing to listen" to the agents' concerns about Wake and the need for workload relief, and expressing additional concern about the agents' "personal safety" in light of Wake's anger. Kasprzak promptly responded by scheduling a March 19 meeting for members of his management team, Wake, Hutson, McKinstry, Turner, and the agents' union representative, to meet with him.

¶ 12. On March 19, three meetings relating to Hutson's concerns took place. Wake, Ware, and Kasprzak attended the third meeting and, according to the Commission, "Mr. Wake made contemporaneous notes" that "accurately describe Mr. Kasprzak's comments." Those notes stated, in part, that Kasprzak, referring to Hutson, McKinstry, and Turner, said:

• "The strategy is to separate them (the trouble makers) and grind them down one by one[.],"
• "The way to beat a bully is to beat him senseless."
• "I just ignore harassment complaints against me. The Dept[.] will ride it out and the complainant will be bought off and the reward to them (complain-antQ] is piddly[]. They gave [an agent] $7000. After attorney fees she got nothing."
• "This is all part of being a manager."

("[an agent]" in Commission findings; all other alterations added.)

¶ 13. Following the March 19 meetings, Kasprzak wrote an "Outcomes" memo stating the six steps to be taken to address the agents' concerns, including: "Obtain an authoritative statement on whether caseload classification still applies to administrative/minimum cases ([Allan Kasprzak:] check w/ legal counsel or leg. liaison)"; and, "Foster a unit atmosphere of mutual respect in a harassment[-]free environment (All pledge to work on this)."

¶ 14. On March 29, Hutson spoke with DOC Secretary Michael Sullivan about her concerns. Then, on April 19, 1996, exactly one month after the March 19 meetings, Ware directed Hutson to report for an investigatory interview because of her alleged violation of work rules involving harassment and use of inappropriate language with offenders. Three days later, Hutson wrote Secretary Sullivan seeking his "assistance in dealing with these issues" involving Wake, Ware, and the workload.

¶ 15. On June 6,1996, Hutson filed her complaint against DOC with the Commission. She alleged unlawful discrimination based on race and military status, unlawful retaliation under the WFEA, and unlawful retaliation under the Whistleblower Law.

¶ 16. On June 10, 1996, Hutson (as well as McKinstry, Turner, and another agent) transferred out of Unit 033 and, on August 19, 1996, following various disciplinary proceedings, DOC issued a written reprimand citing Hutson for various work-rule violations, including insubordination, disobedience, negligence, and harassment. Hutson appealed her reprimand under her contractual grievance procedure and, at arbitration, the reprimand was upheld. •

¶ 17. In May and June 1999, the Commission conducted a five-day hearing on Hutson's complaint and, more than one year later, on August 28, 2000, the Commission issued its Decision and Order dismissing Hutson's action against DOC. Hutson then sought circuit court review of the Commission's decision, see Wis. Stat. §§ 227.52-227.57, and, on September 20, 2001, the circuit court affirmed, leading to this appeal, see Wis. Stat. § 227.58. Here, only the Commission's dismissal of Hutson's whistleblower claim is at issue.

II. DISCUSSION

A. Standard of Review

¶ 18. On an appeal from a circuit court's order affirming or reversing an administrative agency's decision, we review the decision of the agency, not that of the circuit court. Barnes v. DNR, 178 Wis. 2d 290, 302, 506 N.W.2d 155 (Ct. App. 1993). We do not substitute our judgment for that of the Commission, as to the weight of the evidence or credibility of witnesses. See Kannenberg v. LIRC, 213 Wis. 2d 373, 384, 571 N.W.2d 165 (Ct. App. 1997); Wis. Stat. § 227.57(6). Whether the Commission properly interpreted a statute, however, presents a question of law; we are not bound by the Commission's interpretation. See Kannenberg, 213 Wis. 2d at 384; § 227.57(5).

¶ 19. In this appeal, no factual finding is in question. The issue, simply, is whether Hutson's February 5 memo is a protected disclosure under Wisconsin's Whistleblower Law. As we will explain, resolution of that issue required the Commission to determine whether the memo disclosed "information," as defined by Wis. Stat. § 230.80(5), which further required the Commission to determine whether the memo described "mismanagement," as defined by § 230.80(7).

¶ 20. Thus, we are presented with a purely legal issue involving the Commission's interpretation of the statutes. Nevertheless, we defer to an agency's statutory interpretations in certain situations. Kannenberg, 213 Wis. 2d at 384-85. As we have explained:

We give great weight when:
(1) the agency was charged by the legislature with the duty of administering the statute; (2)... the interpretation of the agency is one of long-standing; (3)... the agency employed its expertise or specialized knowledge in forming the interpretation; and (4)... the agency's interpretation will provide uniformity and consistency in the application of the statute.
We also give great weight to an agency's interpretation if it is intertwined with factual determinations or with value or policy determinations. We give a lesser amount of deference — due weight — when the agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than the court to make judgments regarding the interpretation of the statute.
Under the great weight standard, we uphold an agency's reasonable interpretation of the statute if it is not contrary to the clear meaning of the statute, even if we conclude another interpretation is more reasonable. However, under the due weight standard, we uphold the agency's reasonable interpretation if it comports with the purpose of the statute and we conclude there is not a more reasonable interpretation.

Id. at 385 (citations omitted).

¶ 21. In this case, the Commission argues that its decision is entitled to great weight, while Hutson suggests that the decision may be entitled to "no special deference" given that "this court is as competent as the administrative agency to decide the legal question involved." We conclude, however, that the Commission's decision deserves due weight (though we hasten to add that our resolution of this appeal would be the same even under the great-weight standard).

¶ 22. In its lengthy decision, the Commission devoted three pages to a discussion of whether Hutson's memo was a protected disclosure under the Whistle-blower Law. The Commission cited no case law addressing a similar issue (and indeed, on appeal, the parties have not cited a single case to which the Commission could have turned for clear guidance), and only one of its own administrative decisions, issued March 14, 1997, dealing with a comparable question.

¶ 23. Thus, while the Commission clearly has the duty to administer the Whistleblower Law, see Wis. Stat. §§ 230.03(8) & 230.89, its interpretation of the statutes in question is not "of long-standing," and its "expertise or specialized knowledge in forming the interpretation" still appears to be in the formative stage, see Kannenberg, 213 Wis. 2d at 385 (citations omitted). Thus, the situation here seems to be of the kind we anticipated when explaining that due deference is appropriate "when the agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than the court to make judgments regarding the interpretation of the statute." Id.

B. The Statutes

¶ 24. Wisconsin's Whistleblower Law is part of Chapter 230, the Wisconsin State Employment Relations Act. The Statement of Policy of the Act provides, in part, "It is the purpose of this chapter to provide state agencies . . . with competent personnel who will furnish state services to citizens as fairly, efficiently and effectively ás possible." Wis. Stat. § 230.01(1). The Statement of Policy also provides, "It is the policy of this state to encourage disclosure of information under subch. Ill and to ensure that any employe[e] employed by a governmental unit is protected from retaliatory action for disclosing information under subch. III." Wis. Stat. § 230.01(2).

¶ 25. Subchapter III, entitled "Employe[e] Protection," provides the statutory framework under which governmental employees may gain protection against retaliation for making certain disclosures of information under certain circumstances. As relevant to the circumstances of the instant case, Wis. Stat. § 230.81 provides:

Employe[e] disclosure. (1) An employe[e] with knowledge of information the disclosure of which is not expressly prohibited by state or federal law, rule or regulation may disclose that information to any other person. However, to obtain protection under s. 230.83, before disclosing that information to any person other than his or her attorney, collective bargaining representative or legislator, the employe[e] shall do . . . the following:
(a) Disclose the information in writing to the employee's supervisor.

¶ 26. Wisconsin Stat. § 230.80(5) defines "information":

"Information" means information gained by the employe[e] which the employe[e] reasonably believes demonstrates:
(a) A violation of any state or federal law, rule or regulation.
(b) Mismanagement or abuse of authority in state or local government, a substantial waste of public funds or a danger to public health and safety.

In this case, the parties agree that Hutson's memo, if protected at all, complained of "Mismanagement" under Wis. Stat. § 230.80(5)(b). Wisconsin Stat. § 230.80(7) defines "mismanagement":

"Mismanagement" means a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function. "Mismanagement" does not mean the mere failure to act in accordance with a particular opinion regarding management techniques.

C. The Commission's Decision

¶ 27. The Commission concluded that Hutson's February 5,1996 memo failed to state a claim under the Whistleblower Law because it did not describe "a pattern of incompetent management," under Wis. Stat. § 230.80(7) and, therefore, did not qualify as a protected disclosure of "information" under Wis. Stat. § 230.80(5)(b). The Commission explained, in relevant part:

Complainant's comments about an "arbitrary and capricious" supervisory style and the lack of "reasonable guidelines" are too general and conclusory to satisfy the statutory requirement for making a disclosure of "information." Complainant's statements could relate to the general concept of "mismanagement" that is defined in [Wis. Stat.] § 230.80(7), but it is impossible to say that these references in her February 5th memo describe mismanagement. Therefore, complainant's references to the style of supervision and to a lack of guidelines do not satisfy the requirements for a protected whistleblower disclosure.
The second topic of complainant's February 5th memo is her allegation that she has an excessive workload. The record raises significant questions about whether it was reasonable to conclude that the workload was excessive....
Even though there is significant evidence suggesting it would have been unreasonable to believe complainant's caseload was excessive, agents McKinstry and Turner shared complainant's opinion. Without deciding this point, the Commission will assume that complainant has been able to meet her burden of showing hers was a "reasonable belief that the caseload assigned her was excessive and, as a consequence, a wrongful and negligent management action.
Even assuming complainant has met the "reasonable belief standard and that establishing a workload level is a wrongful management action that is not a "management technique," complainant's disclosure did not describe a "pattern of incompetent management actions" as required in the definition of "management." This language reflects a clear legislative intent to provide the protections of the Whistleblower Law to only those employe[e]s who identify a series of incompetent management actions, i.e. more than an isolated instance of alleged mismanagement. Complainant's reference to an excessive workload is not a protected disclosure of "information."

(Footnotes omitted; "series" italicized in Commission's decision; other emphases added.)

D. Analysis

¶ 28. What constitutes "information" under Wis. Stat. § 230.80(5), and "mismanagement" under subsections 230.80(5)(b) and (7), are matters of first impression for Wisconsin's appellate courts. In this case, we see several flaws in the Commission's analysis.

¶ 29. First, we note that at the two portions of its decision where the Commission quoted Hutson's February 5 memo (in its factual findings and, later, in its introductory paragraph preceding its whistleblower decision just quoted), it did so incompletely. At both these critical junctures, the Commission failed to quote substantial portions of Hutson's memo. The first of the deleted portions states:

I am 319 points above the 260 maximum caseload cap. According to the Department of Corrections manual CC/SD standards [,] cases classified as minimum are weighted as one point per case. I am aware of the fact that some specialized units are excluded from the 260 point caseload cap maximum. However, the exclusion only takes effect after a mutual agreement is reached between the Secretary of the Department of Corrections, the Regional Chiefis), D[OC] Employment Relations, AFSCME Council 24 and the local union. To my knowledge that has not occurred. Therefore, I am fully covered under the 1995-1997 contract and the agreement of a 260 workload cap maximum.

¶ 30. Without this deleted portion, Hutson's memo might seem to be one complaining of a "mere failure to act in accordance with [her] particular opinion regarding management techniques," thus not constituting information demonstrating "mismanagement" as defined by Wis. Stat. § 230.80(7). But with its explicit reference to DOC's own standards, and its implicit reference to a DOC-AFSCME agreement controlling any exception to those standards, it is difficult to discern any basis for concluding that Hutson's memo failed to adequately allege "mismanagement."

¶ 31. Second, and in a closely related sense, Hutson's memo, asking that "reasonable guidelines be established that would enable [her] to perform [her] job to best meet the needs of the protection of the community, the Department of Corrections and [her] self as agent in the Minimum/Administrative unit," presented more than a personal complaint of "the mere failure to act in accordance with a particular opinion regarding management techniques." Wis. Stat. § 230.80(7). Here, again, we note that the Commission, at both portions of its decision where it quoted Hutson's memo, deleted critical words. It failed to quote: "to best meet the needs of the protection of the community, the Department of Corrections and [her] self as agent in the Minimum/Administrative unit."

¶ 32. And here, again, the deleted words weave into much more than personal matters or "particular opinion[s] regarding management techniques." Id. While the Commission argues that "[i]t is clear that Hutson simply disagreed with DOC management about what was or was not an excessive caseload," Hutson's memo emphatically and specifically expressed far more than simple disagreement. When one juxtaposes Hutson's memo, including these deleted words, to the position description of a DOC probation and parole agent, see n.l, the memo emerges as a clear and cogent attempt to alert DOC superiors to critical concerns at the very heart of Hutson's and her colleagues' ability to be "responsible for the provision of services to protect the public."

¶ 33. Third, the Commission, determining that Hutson's memo failed to disclose "a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function," Wis. Stat. § 230.80(7), concluded that the statutory language "reflected] a clear legislative intent to provide the protections of the Whistleblower Law to only those employe [e]s who identify a series of incompetent management actions, i.e.[,] more than an isolated instance of alleged mismanagement." We disagree.

¶ 34. In the first place, the Commission provided nothing to support its assertion of a "clear legislative intent" that would allow or require "pattern" to be read as "series," and on appeal, the Commission does not renew this theory. In fact, at oral argument before this court, the Commission conceded that the legislature has "left us with some puzzlement" in defining "mismanagement." In the second place, such a theory makes no sense; it would, in many instances, defeat the very purpose of the Whistleblower Law.

¶ 35. Interpreting a statute, we first look to the words the legislature has chosen and give the words of a statute their plain meaning. Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996). If the intent of the legislature is clear from a statute's language, we must give effect to this intent and look no further. Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 195, 562 N.W.2d 401 (1997). In the absence of ambiguity, we give words in a statute their common meaning, which may be established by reference to a recognized dictionary. Kollasch v. Adamany, 104 Wis. 2d 552, 563, 313 N.W.2d 47 (1981). When a statute "is capable of being construed in different ways, that construction which works an absurd or unreasonable result should be avoided." Jadair, 209 Wis. 2d at 195.

¶ 36. In Webster's Third New International Dictionary (1993), "pattern" is defined as "a fully realized form, original, or model accepted or proposed for imitation: something regarded as a normative example to be copied." Id. at 1657. "Series," however, is defined as "a group of usu[ally] three or more things or events standing or succeeding in order and having a .like relationship to each other." Id. at 2073. Obviously, therefore, a "pattern" may be triggered or established by a single act. See Steinberg v. Arcilla, 194 Wis. 2d 759, 769, 535 N.W.2d 444 (Ct. App. 1995) (No "minimum number of 'specific instances'" is required to establish

"habit" under Wis. Stat. § 904.06(2); under certain circumstances, "one is enough."). Hutson's memo is an excellent example. Assuming, as the Commission did, that Hutson's memo complained of a single "wrongful and negligent management action," it nonetheless alerted her superiors to an action potentially affecting numerous probation and parole agents and thousands of offenders under their supervision.

¶ 37. What could better demonstrate "a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function"? See Wis. Stat. § 230.80(7). What possible purpose, consistent with the Whistleblower Law, could be served by requiring a probation and parole agent to await a "series" of actions before alerting superiors to a single action establishing a pattern that endangers our citizens? Indeed, in this case, Hutson's memo all but points directly at the very purpose of the Wisconsin State Employment Relations Act: "to provide state agencies ... with competent personnel who will furnish state services to citizens as fairly, efficiently and effectively as possible." Wis. Stat. § 230.01(1) (emphasis added).

¶ 38. Therefore, we conclude, the Commission erred in determining that Hutson's February 5 memo was not a protected disclosure of "information" under Wis. Stat. § 230.80(5). Thus, we reverse and remand for the Commission to consider Hutson's retaliation claim under Wisconsin's Whistleblower Law.

By the Court. — Order reversed and cause remanded with directions.

       Subchapter III of ch. 230, entitled "Employe[e] Protection," was created by 1983 Wis. Act 409, § 9, effective May 11, 1984. Part of the purpose of the act was to encourage "employe[e] disclosure of improper activities in governmental units and [to prohibit] retaliation because of such disclosure." Preamble to 1983 Wis. Act 409; 1983 A.B. 240.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       Hutson also challenges the Commission's conclusion under the Whistleblower Law on several other bases. Because her primary argument is dispositive, we need not address her other theories. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only dispositive argument need be addressed).
      The Commission also found that Hutson had engaged in activity protected by Wis. Stat. § 111.321, the Wisconsin Fair Employment Act (WFEA), but that DOC had submitted sufficient evidence establishing a "reasonable basis" for reprimanding her, thus defeating her prima facie retaliation case under the WFEA. On appeal, Hutson does not challenge the Commission's conclusion under the WFEA. The Commission, therefore, suggests that if we conclude that it erred in determining that Hutson's memo was not a protected disclosure under the Whistleblower Law, we should affirm by grafting its "reasonable basis" finding under the WFEA to Hutson's whistle-blower claim.
      We decline to do so. As Hutson correctly argues, the Wisconsin Employee Protection Law provides a presumption that disciplinary action occurring within two years from the date of an employee's protected activity is retaliatory. Wisconsin Stat. § 230.85(6)(a) states:
      If a disciplinary action occurs or is threatened within the time prescribed under par. (b), that disciplinary action or threat is presumed to be, a retaliatory action or threat thereof. The respondent may rebut that presumption by a preponderance of the evidence that the disciplinary action or threat was not a retaliatory action or threat thereof.
      The WFEA provides no such presumption. Thus, because the Commission did not deem Hutson's memo to be a protected disclosure under the Whistleblower Law, it never reached the question of retaliation and never viewed the evidence through the legal lens the presumption provides. The Commission now will have the opportunity to do so.

       In its findings, the Commission quoted the position description for DOC probation and parole agents. Because, as we will explain, that description supports Hutson's argument that her memo to her supervisor was a protected disclosure, we quote certain salient portions:
      Under the general direction of the supervisor, this position is responsible for the provision of services to protect the public by holding offenders accountable for their behavior, the preparation of case plans for offenders; fostering law abiding behavior and positive participation of individual offenders in the community; the preparation of accurate and timely investigation, reports, and case records; community outreach activities, liaison activities and other special assignments as required .... The work at this level is highly responsible and is performed independently utilizing professional judgment and includes accountability for actions.

       Here, we have quoted the entire text of the memo, as entered as an exhibit at the Commission hearing, not as quoted, in part, in the Commission's decision. As we will explain, we attach some significance to the Commission's deletion of certain portions of the memo from its decision.

       The Commission's findings do not clarify whether Wake and Ware were together when they met with McKinstry and/or Turner, or whether McKinstry and Turner were together when they met with Wake and/or Ware. The findings also do not clarify whether Hutson was at any such meeting or meetings when Wake and/or Ware met with McKinstry and/or Turner.

       Additionally, according to the Commission's findings:
      Ms. Ware was shocked by Mr. Kasprzak's comments. She told Mr. Wake that she was very offended by the comments. Mr. Wake reported Mr. Kasprzak's comments to Eurial Jordan[, DOC Division Administrator for Community Corrections,] on two occasions. Mr. Jordan understood the comments referred to [Hutson], Ms. Turner and Ms. McKinstry. Mr. Jordan later spoke with Mr. Kasprzak and told him the comments at the March 19th meeting with Mr. Wake and Ms. Ware were inappropriate. Mr. Jordan was aware of Mr. Kasprzak's March 19th comments at the time Mr. Kasprzak was recommending that a disciplinary investigation be conducted of [Hutson],
      (Citations omitted.) In fact, at the Commission hearing, Wake testified that he considered Kasprzak's comments so offensive that he filed an affirmative action complaint against him.

       The parties debate whether the Commission should have considered written and oral communications that occurred subsequent to the February 5 memo in determining whether the memo was a protected disclosure of information.
      Hutson argues that the Commission should not have limited its analysis to the February 5 memo and, instead, should also have considered at least one February 29 meeting and her March 15 memo to Kasprzak. According to the Commission, however, Hutson, in her post-hearing brief, "identified the 'work relief memo' of February 5,1996, as her protected activity under the Whistleblower Law." Hutson has offered nothing to rebut the Commission's statement.
      At oral argument before this court, the Commission acknowledged that although the focus of a whistleblower action must be the written disclosure triggering potential protection, see Wis. Stat. § 230.81(l)(a), the determination of whether the written communication conveyed protected "information" under Wis. Stat. § 230.80(5) could depend on subsequent communications, written or even oral. The Commission's concession on this point makes sense. Consider, for example, that an employee might provide a written memo to his or her supervisor, as required under § 230.81(l)(a), but the supervisor might first follow-up, perhaps informally and orally, by asking the employee for clarification of the stated concern. Certainly, a fair determination of whether the memo qualified as one disclosing "information" under § 230.80(5) should not foreclose consideration of that follow-up conversation. See, e.g., State v. Sharp, 180 Wis. 2d 640, 656, 511 N.W.2d 316 (Ct. App. 1993) (rule of completeness may call for introduction of additional statements to provide context of admitted statement).
      In this case, however, we need not consider any subsequent communications because, we conclude, the February 5 memo, standing alone, qualified as a protected disclosure of information.

       In support of its rationale, the Commission relied on its decision in Pfeffer v. UW (Parkside), 96-0109-PC-ER, 03/14/97, and stated:
      In Pfeffer, the complainant contended his letter to the President of the University of Wisconsin System, a letter that questions the decision to transfer all third shift custodians to the day shift, was a whistleblower disclosure. In addition to complainant, 11 other custodians signed the letter. The Commission concluded that the letter did not allege a "pattern" of "incompetent management actions," and that it reflected a disagreement involving a "failure to act in accordance with a particular opinion regarding management techniques."
      Hutson argues that while Pfeffer may offer some support for the Commission's decision, two other cases, Duran v. DOC, 94-0005-PC-ER, 10/04/94, and Canter (Kihlstrom) v. UW-Madison, 86-0054-PC-ER, 06/08/88, decided by the Commission but inexplicably ignored in its determination of her case, support her position.
      In Duran, the employee wrote a memo to a supervisor in which she stated that the computer equipment in two offices was not covered by a maintenance agreement and suggested that it would be wise to enter into such an agreement. The employee complained that "she was subsequently blamed for the lack of a maintenance agreement" when a computer problem occurred in the offices. Duran, 94-0005-PC-ER, at 2. Denying the employer's motion to dismiss, the Commission concluded:
      The memo only refers to one condition, the absence of a maintenance agreement for the equipment in the two offices. Giving the memo the liberal construction which is required when ruling on the respondent's [(employer's)] motion [to dismiss], the memo may be read to indicate complainant's view that the lack of a maintenance agreement was "wrongful, negligent or arbitrary or capricious." The second issue related to disclosure is whether the memo meets the requirement that it describe "a pattern of incompetent management actions." The Commission has previously held that a grievance which related to only one action did not relate to a "pattern" of conduct. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 03/30/89. Here, however, the condition of not having maintenance agreements does not relate solely to one piece of equipment. It relates to computers and printers located in two separate offices. Again, giving the memo a liberal reading, it can be said to satisfy the requirements for a written disclosure of "mismanagement" under the [W]histleblower [L]aw.

        Duran, 94-0005-PC-ER, at 4 (footnote and emphasis omitted).
      In Canter, the employee wrote three memos stating that more money should be requested for a particular account and that two medical professors had several outstanding invoices with a travel agency. Denying the employer's motion to dismiss the Commission concluded:
      The difficulty is in determining whether [the three written notes documenting the need for additional funds and alerting the employee's superiors to the doctors' failure to pay their bills] constituted disclosures of information. The Commission can conceive of circumstances where written communications, such as [the employee's memos], though neutral on their face, would act to inform the reader that the writer wished to identify improper governmental activities. Those circumstances would need to be established by evidence proffered at [a] hearing. Among the facts that the parties may seek to establish are: the manner the complainant normally informed her supervisor of telephone calls received; whether the respondent had any responsibility in the event staff declined to pay their travel expenses with [the travel agency]; the frequency and circumstances under which the complainant audited funds; and whether [the employee's] supervisor was made aware of such audits .... There appear to be disputes between the parties as to whether the complainant could have reasonably believed that mismanagement or a substantial waste of public funds had occurred.

        Canter, 86-0054-PC-ER, at 7.
      Hutson argues, "In contrast to the neutral statements" involved in Duran and Canter, she "repeatedly disclosed work assignments that were in violation of DOC rules," and supervision that was "arbitrary and capricious." The Commission responds that Duran and Canter are inapplicable because they were decisions on motions to dismiss complaints, not determinations following a lengthy hearing such as that in the instant case.
      The Commission is incorrect. While the procedural posture of Duran and Canter differed from that of Hutson's case, the Commission's decisions in those cases, as in the instant one, relate to the legal issue of whether an employee's communication alleged a pattern of mismanagement.
      Clearly, the Commission's decision in Pfeffer supports its legal position here. Just as clearly, however, its decisions in Duran and Canter support Hutson's position. The case-by-case conflicts are not surprising. After all, in none of those decisions could the Commission turn to appellate law for guidance. Now, with our decision in this case, we have the opportunity to interpret and clarify the legal standards to assist the Commission in the future.

       In fact, from the legislative history, one might infer that the legislature rejected the proposition that "pattern" must be read as "series." The drafting records accompanying 1983 Wis. Act 409, § 9, leading to the legislature's definition of "mismanagement," see Wis. Stat. § 230.80(5), (6) and (7), reveal that, in the development of the assembly bill, several agencies suggested that "mismanagement" be defined as:
      a pattern of incompetent management actions taken over a period of time, not based solely on a difference of opinion as to proper management or courses of management action, but substantiated by a showing of wrongful, neglectful, or arbitrary and capricious actions having an adverse effect on the efficient accomplishment of agency programs or functions or which may reasonably be felt to produce an adverse effect on the efficient accomplishment of agency programs or functions.
      Simple Amendment to Assembly Substitute Amendment of 1983 A.B. 240 (emphasis added). The ultimate definition of "mismanagement," however, included no such temporal standard.
      Additionally, we note, on the senate side the drafters proposed strong and sweeping whistleblower protection, emphasizing that "it would seem the public interest would be served best by drawing the boundaries as wide as possible, covering... information about [many subjects including] likely threats to public safety." Note from Stuart Levitan in 1981 Senate Bill 524. Unquestionably, when probation and parole agents are required to carry caseloads that are so large as to make real supervision impossible, public safety is threatened.

       Additionally, we have no hesitation in concluding, for all the reasons we have set out, that justice has miscarried in this case. Thus, if permitted to do so, we would also have based our decision on Wis. Stat. § 752.35, which allows for reversal "if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried."
      Here, the record prompts us to have serious concerns on both points. First, where, as we have pointed out, the Commission, in both its factual findings and analysis, has repeatedly deleted extensive and significant portions of the very memo it was evaluating, we are not confident that the real controversy was fully tried. Second, where, as the Commission found, the DOC Region Chief responded to Hutson's concerns, in part, by directing his subordinates to "separate. . . the' trouble makers ... and grind them down one by one," we understand that "something in this case is seriously amiss." See State v. Watkins, 2002 WI 101, ¶ 78, 255 Wis. 2d 265, 647 N.W.2d 244.
      Nevertheless, we recognize that discretionary reversal under Wis. Stat. § 752.35 "is not applicable to a judicial review under ch. 227," see Chicago & N.W.R.R. v. LIRC, 98 Wis. 2d 592, 612-13, 297 N.W.2d 819 (1980), which provides its own procedures and standards for the review of determinations by administrative agencies. Wisconsin Stat. § 227.57(4) recognizes, however, that the fundamental-fairness criterion enfolded in Wis. Stat. § 752.35 is also a consideration to be applied in the review of administrative decisions. Thus, we may remand to the agency if we find "that either the fairness of the proceedings or the correctness of the action has been impaired by a material error in procedure or a failure to follow prescribed procedure." The record reveals both disjunctive predicates here and, therefore, on this additional ground, we send this case back to the Commission so that Hutson may have her day in court to demonstrate whether the written reprimand she received was in retaliation for her disclosure of information.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    Joseph Mullen and Estate of Renee K. Petit, by Joseph Mullen, Special Administrator, Plaintiffs-Appellants, v. Douglas J. Walczak, ABC Insurance Company, Daniel Wheeler, DEF Insurance Company and Primax Recoveries Company, Defendants, American Family Mutual Insurance Company, Defendant-Respondent.
    Court of Appeals

      No. 02-0129.

      Submitted on briefs August 27, 2002.

    Decided September 10, 2002.

    2002 WI App 254
    (Also reported in 653 N.W.2d 529.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of D. James Weis of Habush, Habush & Rottier, S.C. of Rhinelander.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John A. Kramer and Michael J. Roman of Zalewski, Klinner & Kramer, LLP of Wausau.
    On behalf of the The Wisconsin Academy of Trial Lawyers, the cause was submitted on the amicus curiae brief of William C. Gleisner, III of Milwaukee, and Nancy M. Rottier of Madison.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review granted 12-10-02.

   CANE, C.J.

¶ 1. Joseph Mullen and the estate of Renee Petit appeal a summary judgment in favor of American Family Mutual Insurance Company. The circuit court granted American Family's motion for summary judgment after it determined Mullen's emotional injuries arising from witnessing his wife Petit's death were covered by Petit's, rather than Mullen's, "each person" limit under Mullen's uninsured motorist policy. On appeal, Mullen argues-his emotional injuries from witnessing Petit's death are covered by his "each person" limit under American Family's policy because these injuries arise from his own bodily injuries. Because Mullen's emotional injuries arise from Petit's injuries, we determine the policy limits Mullen's recovery for these damages to Petit's "each person" limit. We therefore affirm the circuit court's judgment.

BACKGROUND

¶ 2. On May 31, 1996, Mullen and Petit were involved in an automobile accident caused by Douglas Walczak, who was uninsured. Petit died in the accident and Mullen suffered severe injuries. In 1999, Mullen, personally and as the administrator of his wife's estate, brought suit to recover under their uninsured motorist policy, issued by American Family. The policy provides coverage of $100,000 for "each person." The policy limits American Family's liability by establishing the "each person" limit as the maximum it will pay "for all damages sustained by all persons as the result of bodily injury to one person in any one accident."

¶ 3. Mullen brought a wrongful death claim on behalf of the estate, and he and American Family settled the claim for $100,000, exhausting the coverage under Petit's "each person" limit. Mullen also sought to recover for his own physical and emotional injuries, as well as the emotional injuries he suffered from witnessing his wife's death. He and American Family stipulated his physical injuries and the emotional injuries arising from them totaled $50,000. American Family refused to cover Mullen's emotional injuries stemming from his wife's death. On its motion for summary judgment, American Family argued because those damages arose from Petit's injuries, under the policy they had to be paid from Petit's "per person" limit, which was exhausted by the wrongful death settlement. Mullen argued these injuries arose from his own bodily injuries and were payable under his own "per person" limit. The circuit court granted American Family's motion for summary judgment and denied Mullen's motion to reconsider. Mullen appeals.

STANDARD OF REVIEW

¶ 4. Insurance coverage issues can he resolved on summary judgment. Meyer v. City of Amery, 185 Wis. 2d 537, 542, 518 N.W.2d 296 (Ct. App. 1994). Interpretation of an insurance contract is a question of law that we review independently, although benefiting from the trial court's analysis. Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627, 636, 586 N.W.2d 863 (1998). When the terms of an insurance policy are unambiguous, we will not rewrite the policy by construction. Taylor v. Greatway Ins. Co., 2001 WI 93, ¶ 10, 245 Wis. 2d 134, 628 N.W.2d 916.

DISCUSSION

¶ 5. The facts are not in dispute, and neither party suggests summary judgment was procedurally inappropriate to resolve this matter. The only issue is the interpretation of Mullen's uninsured motorist policy. As noted, the policy provides $100,000 coverage for bodily injury to "each person." In addition, the policy limits American Family's liability under the "each person" limit by stating the limit is the maximum it will pay "for all damages sustained by all persons as the result of bodily injury to one person in any one accident."

¶ 6. The circuit court, relying on Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997), determined the emotional injuries Mullen suffered as a result of witnessing his wife's death resulted from her bodily injuries and were therefore subject to her "each person" limit. On appeal, Mullen argues Gocha is not applicable to his situation. He contends the emotional injuries arose from his own bodily injuries and should be compensated from his own "each person" limit.

¶ 7. In Gocha, we addressed whether "each person" or "each accident" limits applied to family members' emotional distress claims resulting from witnessing an accident involving Kyle Gocha. Id. at 588. There, the policy contained a limit on liability similar to the one here. It made the "each person" limit the maximum amount of coverage for bodily injuries to one person. Id. at 589. It then defined "bodily injury to one person" to include "all injury and damages to others resulting from this bodily injury." Id. We determined the family members' claims were subject to Kyle's "each person" limit because their injuries resulted from his bodily injury. Id.

¶ 8. Mullen argues Gocha is inapplicable because there, the other family members did not suffer bodily injury, while here, Mullen was injured in the accident. He admits the Gocha policy language has the same meaning as American Family's, but argues this factual distinction results in coverage. Mullen argues the Gocha claims were "bystander" claims for negligent infliction of emotional distress, recognized by Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994). Because he was involved in the accident, Mullen argues he is not a bystander and the emotional damages arise from his own injuries.

¶ 9. We disagree. The focus of our decision in Gocha was that, but for Kyle's bodily injuries, the family members would not have suffered emotional distress and, under the terms of the policy, that distress was compensable only from the "each person" limit. Id. at 593. Similarly, hut for the death of his wife, Mullen would not have an emotional distress claim based on witnessing her death. That he suffered his own injuries is irrelevant to the issue of how the policy covers claims that result from bodily injury to another person.

¶ 10. Mullen suggests the emotional distress from witnessing his wife's death does result from his own injuries. In support he relies on Redepenning v. Dore, 56 Wis. 2d 129, 201 N.W.2d 580 (1972); Vinicky v. Midland Mut. Cas. Ins. Co., 35 Wis. 2d 246, 151 N.W.2d 77 (1967); and Rennick v. Fruehauf Corp., 82 Wis. 2d 793, 264 N.W.2d 264 (1978). These cases, however, do not support Mullen's proposition.

¶ 11. In Redepenning, a mother sought recovery for injuries she sustained in.an automobile accident. Redepenning, 56 Wis. 2d at 132. Her daughter died in the accident, and the mother's claims included one for emotional distress. In upholding the jury's damage award, the supreme court noted the mother's emotional distress was caused both by her own physical injuries as well as witnessing her daughter's death. Id. at 143. The court said it was impossible to adequately separate these two causes of the damage. Id.

¶ 12. We cannot say Redepenning requires us to determine Mullen's emotional damage from witnessing his wife's death arose from his own personal injuries. While the Redepenning court did note it could not separate the causes of the mother's emotional distress, Mullen and American Family were able to do it in this case. The parties settled Mullen's claim for his physical injuries and any emotional distress that arose from them for $50,000. The only claim at issue is Mullen's distress from witnessing his wife's death. Under the policy, that damage is subject to her "each person" limit.

¶ 13. Nor do we find Vinicky persuasive. In Vin-icky, a boy and his father were in an automobile accident. Vinicky, 35 Wis. 2d at 248. While the boy only suffered minor injuries, he experienced extreme emotional distress as a result of seeing his father severely injured and believing him to have died in the accident. Id. at 253. In upholding an award of damages to the boy for his emotional distress, the supreme court noted there was no doubt "that mental distress caused by the accident is properly compensable." Id. Mullen also points to a later discussion of Vinicky in Rennick where the supreme court said "where the plaintiff can demonstrate physical injury at the time of the accident, plaintiff may also prove and collect damages for emotional injury arising from the accident. Such emotional injury need not arise from the plaintiffs distress over his own physical injuries." Rennick, 82 Wis. 2d at 805.

¶ 14. Mullen argues these cases state he is entitled to recover his damages for emotional distress from witnessing his wife's death. We agree. The issue before us, however, is how Mullen's uninsured motorist policy treats these claims. It unambiguously limits American Family's liability for all damages arising from one person's bodily injuries to the "each person" limit. Here, the emotional distress Mullen suffered by witnessing his wife's death arose from her bodily injury. Undoubtedly, this distress was severe. Nonetheless, American Family has already exhausted Petit's "each person" limit and is not required to provide coverage for any other damages that arose from her death.

By the Court. — Judgment affirmed.

       Our review of the record does not reveal that Mullen ever claimed he suffered emotional injuries as a result of his own physical injuries. In his brief, however, he asserts he made this claim, but admits the $50,000 stipulation included both his physical injuries and the emotional injuries arising from them. Because of his admissions in his brief, in addition to our review of the record, we determine the only emotional injuries we must address are those Mullen suffered as a result of witnessing his wife's death. Although it is then irrelevant whether Mullen claimed he experienced emotional injuries as a result of his own physical injuries, we will continue to refer to them because we believe the distinction between the two types of emotional injuries is helpful to our resolution of this appeal.


author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    Ruth M. Schwister, Plaintiff-Respondent, v. Daniel V. Schoenecker, Defendant-Appellant.
    Supreme Court

      No. 01-2621.

      Oral argument November 7, 2002.

    Decided December 27, 2002.

    2002 WI 132
    (Also reported in 654 N.W.2d 852.)
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This case comes before the court on certification from the court of appeals pursuant to Wis. Stat. § 809.61 (1999-2000). It is an appeal from an order issued by the Circuit Court for Waukesha County, Kathryn W. Foster, Judge, granting the motion of Richard Schoenecker, personal representative of the Estate of Ruth Schwitzer, to be substituted as the plaintiff in this action. Ruth Schwitzer, the plaintiff, died after she brought this action against her son, the defendant, Daniel Schoenecker, for the return of funds that he was to manage on her behalf. We affirm the order of the circuit court and remand the cause for further proceedings.

¶ 2. The issue in this case is whether the motion for substitution was timely. Wisconsin Stat. § 803.10(l)(a) directs that a motion for substitution of a deceased party be dismissed when it is made more than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided by the statute. The specific question of law presented here is whether the defendant's suggestion of death, served only on the deceased plaintiffs attorney prior to the appointment of a personal representative, satisfied § 803.10(l)(a) and thereby activated the 90-day time period in which a motion for substitution was to be filed.

¶ 3. We hold, on the facts of this case, that service of the suggestion of death only on the deceased plaintiffs attorney of record was insufficient to activate the 90-day time period in which a motion for substitution is to be filed under Wis. Stat. § 803.10(1)(a). To trigger the 90-day time period in the present case the defendant was obliged to serve his brothers as nonparties. Serving his brothers was. necessary to reasonably protect their interests and the interests of the decedent when no personal representative had yet been appointed. Moreover, requiring the defendant, the surviving party in the present case, to locate and serve his brothers, who were known to the defendant to be potential successors or representatives of the decedent, would not unduly burden the defendant or unreasonably delay the litigation.

¶ 4. Wisconsin Stat. § 803.10(l)(a) governs substitution for a deceased party and provides as follows:

803.10. Substitution of parties.
(1) Death, (a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14 and upon persons not parties in the manner provided in s. 801.11 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

¶ 5. A procedure for substitution of a deceased party is needed when an action survives the decedent's death. This concept is neither complicated nor controversial. Yet the number of reported cases and commentaries on the process of substitution suggests that Wis. Stat. § 803.10(l)(a) and the federal rule upon which it is based are neither simple nor uniformly interpreted.

1 — !

¶ 6. The following timeline presents the pertinent undisputed facts in this case:

April 28, 2000: The complaint is filed by the plaintiff mother, Ruth M. Schwister, against one. of her sons, Daniel V Schoenecker. She is represented by Attorney Robert Pyzyk.
May 6, 2000: The parties agree to try to resolve the dispute and suspend the defendant's obligation to file an answer.
November 4, 2000: The plaintiff mother dies.
November 6, 2000: The circuit court dismisses the action for failure to prosecute.
December 13, 2000: The circuit court vacates its dismissal order and orders the defendant to file an answer prior to mid-February.
February 8, 2001: The defendant files an answer and a suggestion of death with the Waukesha County Clerk of Circuit Court, serving both documents on Attorney Pyzyk by mail.
May 10, 2001: More than 90 days have elapsed since the suggestion of death was filed in circuit court on February 8, 2001.
June 18, 2001: Attorney Pyzyk informs the circuit court and defendant's attorney at a status conference that the plaintiff died and that a request for substitution will be filed. The circuit court sets August 1, 2001, as the date for amending the pleadings.
July 5, 2001: Richard Schoenecker, one of the plaintiffs three sons, petitions the probate court to appoint him personal representative of his mother's estate in accordance with her will. Richard Schoe-necker is represented in the probate proceedings by Attorney Pyzyk. Copies of the petition and will are forwarded to the defendant.
July 16, 2001: The defendant files a motion to dismiss the action pursuant to Wis. Stat. § 803.10(l)(a), claiming that a motion for substitution was not properly filed within 90 days of his service of the suggestion of death on Attorney Pyzyk.
July 30, 2001: Richard Schoenecker files a motion for substitution requesting that he be substituted as plaintiff. The affidavit of Attorney Pyzyk attached to the motion for substitution states that the only assets of the estate are the current claims pending in this appeal.
July 31, 2001: The probate court appoints Richard Schoenecker the personal representative of the plaintiffs estate.
August 6, 2001: The circuit court conducts a hearing on the defendant's motion to dismiss the action and on the personal representative's motion for substitution.
September 17,2001: The circuit court issues an order substituting Richard Schoenecker, the personal representative of the plaintiffs estate, for the deceased plaintiff. The circuit court holds that the defendant's service of the suggestion of death on the attorney who had represented the deceased plaintiff did not trigger the 90-day substitution period under Wis. Stat. § 803.10(l)(a).
November 8, 2001: The court of appeals grants the defendant leave to appeal this order.
June 26, 2002: The court of appeals certifies the appeal to this court.

II

¶ 7. The interpretation of Wis. Stat. § 803.10(l)(a) and its application to the undisputed facts in the case at bar present questions of law that this court determines independent of the circuit court, but benefiting from its analysis.

¶ 8. Wisconsin Stat. § 803.10(l)(a) is a rule adopted by the supreme court in 1975. When this court interprets court rules, it turns to the rules of statutory interpretation for guidance. The goal of interpreting a court rule is to ascertain and give effect to the intent of the supreme court in adopting the rule. The first step in ascertaining the intent of the supreme court is to look to the language adopted. When the language of the court rule does not give sufficient guidance, we must look to rules of interpretation for assistance. We may-look to the history, the objective, and the subject matter of the rule to divine its meaning.

¶ 9. The language of Wis. Stat. § 803.10(l)(a) provides little guidance for ascertaining who must be served with a suggestion of death in order to trigger the 90-day period for filing a motion for substitution. The second sentence of § 803.10(l)(a) governs the filing of a motion for substitution. A motion for substitution may be made by any party or by representatives or successors of the deceased party. ,

¶ 10. The notice of the motion for substitution is served, along with a notice of hearing, on the parties pursuant to § 801.14 (service by mail on the party or party's attorney) and on persons who are not parties pursuant to § 801.11 (personal service or by leaving document at usual place of abode).

¶ 11. Since the parties will ordinarily be named and known, service by mail on them or their attorneys should present little difficulty. Serving nonparties, however, raises difficulties; Wis. Stat. § 803.10(l)(a) does not explain who are nonparties to be served.

¶ 12. The next sentence in Wis. Stat. § 803.01(l)(a) governs the' service of the suggestion of death, which may, but need not, precede the motion for substitution. It is this sentence in § 803.10(l)(a) that is specifically at issue in the present case.

¶ 13. The service of the suggestion of death is significant because it limits the time within which a motion for substitution can be made. Wisconsin Stat. § 803.10(1)(a) provides that an action shall be dismissed against the deceased party unless a motion for substitution is made within 90 days after the fact of death is "suggested" on the court record by service in the same manner as a motion for substitution.

¶ 14. Wisconsin Stat. § 803.10(l)(a) therefore appears to require that the suggestion of death, like the motion to substitute, be served on the parties and on persons who are not parties. Consequently, the language on filing a suggestion of death is not helpful. Like the language in the first part of the court rule relating to the motion for substitution, it does not state which nonparties are to be served.

¶ 15. Without clear language in Wis. Stat. § 803.10(l)(a) identifying the nonparties who must be served with a suggestion of death, we turn our attention to the history and purpose of the court rule for guidance.

¶ 16. The Wisconsin Supreme Court adopted the current version of § 803.10(l)(a) in 1975 by copying, almost verbatim, the language of Federal Rule of Civil Procedure 25(a)(1) as amended in 1963. The Wisconsin Judicial Council Committee's Notes to § 803.10 expressly state that the section is based on Federal Rule of Civil Procedure 25(a)(1) and "provides a simpler method for substitution of parties after death than is found in [Wis. Stat.] §§ 269.14 through 269.24."

¶ 17. Because Wis. Stat. § 803.10(l)(a) is based on Federal Rule of Civil Procedure 25(a)(1), we look to the history of the federal rule and the decisions of federal courts regarding the substitution process of Rule 25(a)(1) for guidance in interpreting § 803.l0(l)(a).

¶ 18. The history of Federal Rule 25 demonstrates that the goal of the 1963 version of Rule 25(a)(1) that Wisconsin adopted was to provide courts with a flexible method for the substitution of a party after death, alleviating the "hardships and inequities" created by the previous rule. Before the 1963 amendment, a federal trial court was required to dismiss a case if no motion for substitution was filed within two years after the date of death regardless of notice (or lack thereof) to any successors or representatives of the deceased. No extensions of this two-year period were allowed. This rule was rigorously applied with harsh results and was described as "easily the poorest rule of all Federal Rules." Thus, the 1963 amendment was aimed at moving away from rigid deadlines for dismissing actions upon the death of a party.

¶ 19. Although the 1963 amendment provides that the action shall be dismissed if the 90-day period is not honored, dismissal is not mandatory and lies within the discretion of the trial court. A trial court may extend the time in which to file a motion for substitution before or after the expiration of the 90-day period. As one federal court stated: "In making this determination the Court is mindful of the underlying purpose of Rule 25(a)(1) which is to allow flexibility in substitution." Another federal court explained that "[t]he 90 day period was not intended to act as a bar to otherwise meritorious actions." Further discretion is granted to the trial court in the first sentence, which provides that a "court may order substitution of the proper parties."

¶ 20. The objective of the suggestion of death set forth in Rule 25(a)(1) is to alert nonparties to the consequences of the death of a party in a pending lawsuit and to signal them that they must act if they desire to preserve the decedent's claim. Moreover, federal courts have concluded that the purpose of Rule 25(a)(1) is to establish a procedure that protects those who have an interest in the litigation and authority to act on behalf of the decedent by permitting substitution for the deceased party without unduly burdening the surviving party and without unreasonably delaying the litigation.

¶ 21. Federal courts have consistently held that when the suggestion of death is served after a personal representative has been appointed for a deceased plaintiffs estate, service must be on that representative to trigger the 90-day time period. Service on the personal representative of the deceased plaintiffs estate adequately protects those who succeed to the interests of the decedent without unduly burdening the surviving defendant.

¶ 22. When no personal representative has been appointed, as in the present case, some courts have concluded that a defendant's service of a suggestion of death upon counsel of record for the deceased plaintiff will trigger the 90-day time period. In these cases, the courts similarly balanced the serving party's duty of notice to appropriate nonparties against the burden on the serving party of locating and serving appropriate nonparties and concluded that locating those with an interest in the deceased plaintiffs estate imposed an undue burden on the surviving party. Therefore, service on the deceased party's former attorney was sufficient in these cases.

¶ 23. In Yonofsky v. Wernick, 362 F. Supp. 1005 (S.D.N.Y. 1973), for example, the plaintiff passed away while his claim alleging wrongful exclusion from a joint venture or partnership was pending. The defendant, a former business acquaintance of the plaintiff, served a suggestion of death on the deceased plaintiffs attorney just two days after his death. The Yonofsky court noted that normally the "executor or administrator of a deceased party's estate is the individual substituted and upon whom service is effected." However, under the circumstances of the Yonofsky case, in which little relationship or familiarity existed between the plaintiff decedent and the surviving defendant, the court concluded, "it would be difficult for defendant to know whom else to serve beside plaintiffs former counsel" and therefore service on the plaintiffs attorney activated the 90-day period.

¶ 24. In contrast to these cases, in Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985), the court explained that when a personal representative has not yet been appointed, the serving party should normally hear the burden of determining whom to serve given the goal of Rule 25(a)(1) to alert interested nonparties to the consequences of the death of a party in a pending suit before it is too late. In Fariss, a personal representative had been appointed, but the court commented on the obligation of the defendant in serving the suggestion of death as follows:

In some instances, it may prove more difficult to determine whom to serve, but it is generally appropriate to require the serving party to shoulder that burden, rather than permitting the absence of notice to decedent's representative to lead to forfeiture of the action. Absent personal service, there is no reason to presume that the successor or representative, who must decide whether to pursue the claim, is aware of the substitution requirement.

¶ 25. Moreover, in Kasting v. American Family Mutual Insurance Co., 196 F.R.D. 595, 601 (D. Kan. 2000), the court concluded that a defendant's service of a suggestion of death on the widow of the deceased plaintiff prior to her appointment as personal representative was sufficient under Rule 25(a)(1).

¶ 26. Immediately after the death of the plaintiff in Easting, American Family, the defendant, served the suggestion of death on the attorney for the deceased plaintiff. Three months later, when no personal representative had been appointed, American Family served the deceased plaintiffs widow.

¶ 27. The Easting court concluded that requiring an opposing party to await the formal determination of who the decedent's successors or representatives are before filing a suggestion of death would delay serving the suggestion of death, and likely all other legal proceedings in the case, for an inordinate period of time. The Easting court also concluded that the widow of the deceased plaintiff was a nonparty within the meaning of Rule 25(a)(1) for service of a suggestion of death and further opined that the 90-day period was triggered by the service of the suggestion of death on the widow.

¶ 28. None of the cases cited by the parties, or cited above, provides clear guidance on the application of the nonparty service requirements for the suggestion of death under Wis. Stat. § 803.10(1)(a) to the facts of this case. Yet the message delivered by these cases and the history, objectives, and subject matter of Federal Rule 25(a)(1) is that courts have wide discretion to look to the facts of each case to decide which nonparties need to be served with the suggestion of death in order to trigger the 90-day period. And when making this determination regarding a deceased plaintiff, a court considers such factors as: (1) whether the suggestion of death has been served on nonparties who may have a right or interest in deciding whether a motion for substitution should be filed; (2) how substantial the burden is on the person serving the suggestion of death to identify nonparties who have the right or interest to move for substitution and to serve them with the suggestion of death; and (3) whether the service of the suggestion of death protects the circuit court's control over the docket and the court's and parties' need for the fair and expeditious resolution of the case.

III

¶ 29. Guided by these three factors, we conclude that in the present case the suggestion of death served only on the deceased plaintiffs attorney, when no personal representative had been appointed, was not sufficient to trigger the 90-day period under Wis. Stat. § 803.10(l)(a).

¶ 30. First, serving the suggestion of death on Attorney Pyzyk alone did not necessarily alert persons who may have a right or interest in deciding whether a motion for substitution should be filed of the need to protect their interests or the interests of the decedent.

¶ 31. The defendant argues that as a matter of policy, Wis. Stat. § 803.10(l)(a) should be interpreted to allow service on the deceased plaintiffs attorney because the attorney is in the best position to inform interested persons that they must substitute for the decedent or risk losing any interest they may have in the litigation. The defendant contends that the language of Wis. Stat. § 803.10(l)(a) does not require that he serve the suggestion of death on the decedent's personal representative, and nothing in § 803.10(l)(a) prohibits service on the attorney for the deceased plaintiff when no personal representative has been named.

¶ 32. We agree with the defendant that the suggestion of death should be served on the deceased plaintiffs attorney, even though the attorney is not a party to the action and is not necessarily the attorney for the representatives or successors of the deceased plaintiff. The attorney for a deceased plaintiff has a professional obligation to "take steps to the extent reasonably necessary to protect a client's interests," and, as an officer of the court, to advise the court of a change in his or her authority to act on behalf of the client. Thus, serving the attorney enlists the assistance of that attorney to protect the deceased's rights and interests to the extent that it is reasonably practicable for the attorney to do so. Moreover, the burden on the serving party to serve the deceased plaintiffs attorney is minimal.

¶ 33. We disagree with the defendant, however, that serving Attorney Pyzyk alone was sufficient in the present case to trigger the 90-day period. An attorney's agency to act on behalf of a client ends with the death of the client. Attorney Pyzyk was not a person with a right to decide or an interest in deciding whether a motion for substitution should be filed; the rights and interests of a deceased client do not pass to the attorney. Rather, the deceased plaintiffs rights and interests pass to other persons, such as the personal representative of her estate or to the heirs or beneficiaries of her estate. Here, while Attorney Pyzyk later represented Richard Schoenecker as personal representative of the deceased plaintiffs estate, nothing in the record shows that this relationship existed at the time of service of the suggestion of death or that Attorney Pyzyk and Richard Schoenecker had any relationship prior to the service of the suggestion of death.

¶ 34. Second, the burden on the defendant, the serving party, to identify and serve appropriate persons with the suggestion of death was minimal in this case. The defendant argues that even if, in this case, he was in a better position than Attorney Pyzyk to identify and serve heirs, beneficiaries, successors, and representatives of the deceased plaintiff, that will not always be true in other cases. The defendant rightly notes that the number of possible "successors or representatives" of a deceased party could be large under Wisconsin law.

¶ 35. We agree with the defendant that in other cases it might be unreasonable to read Wis. Stat. § 803.10(l)(a) as requiring service on "potential" successors or representatives. But we are not dealing with "other cases" or "every case." We are applying Wis. Stat. § 803.10(l)(a) to the facts of the present case.

¶ 36. On the facts of this case, it is not an unreasonable burden on the defendant to require that he serve the suggestion of death on his brothers, two individuals with readily identifiable interests in the deceased plaintiffs estate. Although the defendant did not have a copy of his mother's will when he served the suggestion of death and therefore did not know his brother Richard was named as personal representative, the defendant conceded to the circuit court that he knew that his two brothers were very likely beneficiaries under his mother's will. Indeed, there is nothing difficult or burdensome about serving them, in addition to Attorney Pyzyk, in the case at hand.

¶ 37. Third, to declare that service of the suggestion of death triggered the 90-day period in the present case would not further the goal of fair and expeditious resolution of the case.

¶ 38. The defendant argues that to hold that service on the attorney alone in the present case is insufficient to trigger the 90-day period would inordinately delay litigation and require the surviving party to continue to incur expenses associated with defending the action. The defendant objects to forcing a surviving party to wait to file a suggestion of death until a personal representative is appointed or to petition the probate court to appoint a personal representative.

¶ 39. We are not requiring the defendant to wait until a personal representative is appointed or to petition the probate court to appoint a personal representative. The defendant here need serve only his brothers, and this requirement causes no inordinate delay. In any event, here, the litigation proceeded without interruption and without objection by the defendant.

¶ 40. From the time the plaintiff died until the time the personal representative of her estate was named, the case actively continued with the defendant's full participation. On January 25, 2001, nearly three months after the plaintiffs death, the defendant, through his attorney, advised the court that he would answer the complaint on or before February 7, 2001. The answer was filed on February 8, 2001, at the same time that the suggestion of death was filed with the court and served on Attorney Pyzyk.

¶ 41. On June 18, 2001, a status conference was held. The defendant's counsel appeared and agreed to the terms of a scheduling order requiring, among other things, that he submit pleadings before August 1, 2001, and witness lists by November 7, 2001. At that same status conference, both the court and the defendant's counsel were informed that a motion for substitution of the plaintiff would be filed. Not until July 17, 2001, after the petition to the probate court was filed to appoint Richard Schoenecker the personal representative for the estate of the deceased plaintiff, did the defendant finally file his motion to dismiss the action for failure to substitute within 90 days of the suggestion of death. The motion to substitute followed on July 30, 2001, just two weeks after the motion to dismiss and only six months after the defendant filed his answer.

¶ 42. The federal rule adopted by Wisconsin in Wis. Stat. § 803.10(l)(a) was a response to a two-year statute of limitations that ran from the date of death and was thought harsh and oppressive. In this case, less than a year passed between the plaintiffs death and the appointment of a personal representative and the motion for substitution. To hold that service was proper under the circumstances of the present case to trigger the 90-day period and that the case should be dismissed against the deceased plaintiff because waiting for the appointment of a personal representative inordinately delays litigation is to ignore the history and purpose behind Wis. Stat. § 803.10(l)(a).

¶ 43. Wisconsin Stat. § 803.10(l)(a) merely states that service be on parties and persons not parties of record without identifying these nonparties. The court rule does not' state who is required to be served. It allows a trial court to determine whether the appropriate nonparties were served according to the totality of the circumstances. Reading § 803.10(l)(a) to permit service on Attorney Pyzyk alone, under the circumstances of the present case, would fail to satisfy the objectives of the rule: to start the 90-day time period within which to make a motion for substitution only after notice is given to interested nonparties without unduly burdening the serving party while allowing a court to move the litigation toward fair and expeditious resolution.

¶ 44. Wisconsin Stat. § 803.10(l)(a) does not require service of the suggestion of death on all potential beneficiaries, heirs, successors, or representatives in every case. We merely hold that the court rule requires the person serving the suggestion of death and the court to examine the facts of the case in order to determine what interested nonparties should be served in each particular case and how burdensome the task will be in order to protect the interests of all persons and move the litigation toward a fair and expeditious resolution. If Wis. Stat. § 803.10(l)(a) were designed to trigger the 90-day period upon service of the suggestion of death on the personal representative, if appointed, or on the attorney of record of the deceased party, when no personal representative was appointed, it would have so stated.

IV

¶ 45. For the foregoing reasons, we hold, on the facts of this case, that service of the suggestion of death only on the deceased plaintiffs attorney of record was insufficient to activate the 90-day time period in which a motion for substitution is to be filed under Wis. Stat. § 803.10(l)(a). To trigger the 90-day time period in the present case the defendant was obliged to serve his brothers as nonparties. Serving his brothers was necessary to reasonably protect their interests and the interests of the decedent when no personal representative had yet been appointed. Moreover, requiring the defendant, the surviving party in the present case, to locate and serve his brothers, who were readily known to the defendant to be potential successors or representatives of the decedent, would not unduly burden the defendant as surviving party or unreasonably delay the litigation. We therefore affirm the order of the circuit court holding that the motion for substitution was timely.

By the Court. — The order of the circuit court is affirmed.

       On certification, all issues raised on appeal are before this court. State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986); Wis. Stat. §§ 808.05(2) and (Rule) 809.61. The court of appeals, however, identified two specific issues for certification: (1) whether a suggestion of death filed by a surviving party to an action pursuant to Wis. Stat. § 803.10(l)(a) (1999-2000), prior to the appointment of a personal representative, begins tolling the 90-day substitution period when it is served upon counsel for the deceased party; and (2) whether a suggestion of death filed by a surviving party to an action must identify a proper party to substitute.
      All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       Because we hold that service of the suggestion of death on only the deceased plaintiffs attorney did not activate the 90-day .period for filing a motion for substitution in this case, we address neither the second issue certified by the court of appeals, whether the suggestion of death must identify a proper party to substitute, nor the relevant case on that issue, Wick v. Waterman, 143 Wis. 2d 676, 421 N.W.2d 872 (Ct. App. 1988).

       Attorney Pyzyk wrote the circuit court, explaining that he was not notified that the case was on the dismissal calendar. The attorney requested that the circuit court reopen the case and schedule a pretrial conference. The attorney also requested that defense counsel file his responsive pleading.

       Wisconsin Stat. § 803.10(l)(a) describes the suggestion of death as "a statement of the facts of death." The suggestion of death in the present case states that Ruth M. Schwister died on November 4, 2000. Nothing is mentioned about surviving heirs, beneficiaries, a will, or a personal representative.

       An informal reference to the death of the plaintiff is not a formal suggestion of death as required under Wis. Stat. § 803.10(1)(a). Wheeler v. Gen. Tire & Rubber Co., 142 Wis. 2d 798, 808, 419 N.W.2d 331 (1987).

        State v. Leitner, 2002 WI 77, ¶ 16, 253 Wis. 2d 449, 646 N.W.2d 341.

        Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, ¶ 15, 253 Wis. 2d 238, 646 N.W.2d 10; Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 194, 562 N.W.2d 401 (1997); County of Door v. Hayes-Brook, 153 Wis. 2d 1, 21-22, 449 N.W.2d 601 (1990)(Abrahamson, J., concurring).

       The second sentence of Wis. Stat. § 803.10(1)(a) reads:
      The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in § 801.14 and upon persons not parties in the manner provided in § 801.11 for the service of a summons.

       The words "representatives" and "successors" are not defined in Wis. Stat. § 803.10(l)(a). "Representative" likely means a person who acts on behalf of another and probably refers to the legal personal representative appointed by the probate court. Similarly, "successor" likely means a person who succeeds to the rights and responsibilities of another. A successor might include, for example, heirs or beneficiaries of a will or distributees of an estate that had been distributed. Rende v. Kay, 415 F.2d 983, 984 (D.C. Cir. 1969).

       3 Jay E. Grenig & Walter L. Harvey, Wisconsin Practice § 310.2 (2d ed. 1994).

       The third sentence of the rule reads:
      Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

        Wheeler, 142 Wis. 2d at 807 (citing Rende, 415 F.2d at 985); see also 3 Jay E. Grenig & Walter L. Harvey, Wisconsin Practice § 310.2 & n.6 (2d ed. 1994) (citing Charles Alan Wright et al., Federal Practice and Procedure § 1955 (2d ed. 1986); Advisory Committee Note to F. R. Civ. E 25).
      Although § 803.10(l)(a) does not state who may serve a suggestion of death, no one challenges the defendant's service of the suggestion of death in the present case.

       Federal Rule of Civil Procedure 25(a)(1) reads as follows:
      If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

       Wisconsin Stat. § 803.10 is based on Federal Rule of Civil Procedure 25 except for subsection (5), which is based on former § 269.22. Charles D. Clausen & David P Low, The New Wisconsin Rules of Civil Procedure Chapters 801-803, 59 Marq. L. Rev. 1, 111 (1975).

        See Wheeler, 142 Wis. 2d at 807 (federal case law on Rule 25(a)(1) "may be persuasive").

        Rende, 415 F.2d at 985 (citing Advisory Committee Notes to F. R. Civ. E 25(a)).

        Rende, 415 F.2d at 984 (quoting 4 James Wm. Moore, Moore's Federal Practice ¶ 25.01(7)(2d ed. 1950)).

        Rende, 415 F.2d at 985 (citing Advisory Committee Notes to F. R. Civ. E 25(a)).

       6 James Wm. Moore et al., Moore's Federal Practice § 25.13(3)(3d ed. 2002).

        See 7C Charles Alan Wright et al., Federal Practice and Procedure § 1955 (2d ed. 1986).

        Kasting v. Am. Family Mut. Ins. Co., 196 F.R.D. 595, 601 (D. Kan. 2000); see also Grandbouche v. Lovell, 913 F.2d 835, 836 (10th Cir. 1990).

         Rende, 415 F.2d at 986.

        See, e.g., Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985) ("[T]he rule [25(a)] seeks 'to assure the parties to the action and other concerned persons of notice of the death so that they may take appropriate action to make substitution for the deceased party.'" (citation omitted)); Barlow v. Ground, 39 F.3d 231, 233-34 (9th Cir. 1994) ("[T]he present Rule 25 was designed 'to inform all interested persons of the death so that they may take appropriate action.'" (quoting 3B James Wm. Moore et al., Moore's Federal Practice ¶ 25.06(2)(2d ed. 1991))); Kasting, 196 F.R.D. at 599 ("Rule 25(a)(1) is designed to prevent a situation in which a case is dismissed because a party never learned of the death of an opposing party.").

       When the surviving party knows the identity of the executor of the deceased plaintiffs estate, the executor must be served to trigger the 90-day time period. Barlow, 39 F.3d at 233-34. See also Fariss, 769 F.2d at 961 ("Where, as here, a personal representative has been appointed following the death of a party, the suggestion of death must be personally served on that representative. Because Mrs. Fariss never received such service, the substitution was timely."); Grandbouche, 913 F.2d 835 (no formal suggestion of death was filed but the court also commented that because the personal representative of decedent's estate did not receive service of any purported suggestion of death, the 90-day limitations period did not begin to run).

        See, e.g., Fariss, 769 F.2d 958.

        See, e.g., Yonofsky v. Wernick, 362 F. Supp. 1005 (S.D.N.Y. 1973); Chobot v. Powers, 169 F.R.D. 263 (W.D.N.Y. 1996).

       Some courts, by contrast, impose a burden on the serving party to wait until a personal representative has been appointed and, if none is appointed, to take steps to have one appointed for purposes of the litigation. See, e.g., Kaldawy v. Gold Service Movers, Inc., 129 F.R.D. 475, 477 (S.D.N.Y. 1990).

        Yonofsky, 362 F. Supp. at 1011.

        Yonofsky, 362 F. Supp. at 1012; see also Chobot, 169 F.R.D. at 267 (holding that the defendant correctional facility had triggered the 90-day period for substitution by serving the deceased pro se prisoner plaintiffs last known address because the "practical burden" of following the typical requirements for service of a suggestion of death and petitioning the probate court to have a personal representative appointed "would be significant" and "unduly burdensome").
      Compare Jones v. Montgomery Ward & Co., Inc., 725 E2d 836 (N.M. Ct. App. 1985), in which no personal representative had been appointed and the court held that the deceased plaintiffs attorney was not the proper party to receive service of the suggestion of the plaintiffs death to trigger the 90-day period for substitution of plaintiff.

        Fariss, 769 F.2d at 962 (citations omitted).

        Kasting, 196 F.R.D. at 598.

       Id at 601.

       An attorney for a deceased plaintiff is not a party to the action. Kasting, 196 F.R.D. at 598.
      No one complains in the present case that service on the attorney for the deceased plaintiff, a nonparty, was improper because the service was by mail rather than by personal service. In Barlow, the court held that service by mail upon the deceased plaintiffs attorney did not trigger the 90-day time period. Barlow, 39 F.3d at 234.

       See SCR 20:16(d), providing that "upon termination of representation, a lawyer shall take steps to the extent reasonably necessary to protect a client's interests ... ."
      A lawyer must take steps to the extent reasonably practicable to protect the client's interests, such as allowing time for employment of other counsel and giving notice that the lawyer lacks authorization to act. 1 Restatement (Third), Law Governing Lawyers § 33 cmt. e, g (2000).

       A lawyer for a deceased client must cooperate in any transition and seek to protect the deceased client's property and other rights. 1 Restatement (Third), Law Governing Lawyers § 31 cmt. e (2000).

       Restatement (Second) of Agency § 120(l)(b) (1958) ("[A]fter notice of the principal's death, the agent has no power to bind the estate of the principal.").
      For a discussion of an attorney's responsibility after the death of a client, see J. Kenin Webb, Until Death Do We Part?: An Attorney's Responsibility After the Death of the Client, 25 J. Legal Prof. 239 (2001).

       1 Restatement (Third), Law Governing Lawyers § 31 cmt. e (2000).

       "Non-party successors or representatives of the deceased party, however, may not be protected by the attorney of the deceased party. It is entirely possible that no relationship will exist between them, and that the successor or representative will be represented by other counsel or by no counsel at all." Barlow, 39 E3d at 233.

       The defendant did not receive a copy of the will until five months after the suggestion of death was served.

       In the defendant's Reply Brief supporting his motion to dismiss and opposing the personal representative's motion for substitution at the circuit court, he states, "[0]n the facts of this case, because it involves a dispute among family members, defendant Daniel Schoenecker obviously was aware that his two brothers might be beneficiaries under Ruth Schwister's Last Will and Testament" (emphasis added).