text:
    Hein, Appellant, v. State Farm Mutual Automobile Insurance Company and others, Respondents.

      January 10

    February 1, 1966.

      For the appellant there was a brief and oral argument by Arthur DeBardeleben of Park Falls.
    For the respondent State Farm Mutual Automobile Insurance Company there was a brief and oral argument by Donald G. Olson of Phillips.
   Wilkie, J.

Two issues are raised by this appeal:

First, did the trial court err in granting the insurer’s motion for summary judgment?

Second, if not, did the trial court err in allowing the taxation of attorney’s fees in favor of the insurer?

Summary Judgment.

State Farm is not entitled to summary judgment unless the facts presented conclusively show that the plaintiff’s action has no merit and cannot be maintained as to it. Summary judgment should not be granted where there are substantial issues of fact to be determined, when the evidence on a material issue is in conflict, or when there are permissible inferences from undisputed facts that would permit a different result.

The first of three reasons appellant advances as to why the trial court erred in granting summary judgment dismissing State Farm is that, contrary to the trial court’s finding, the evidence does not establish that Cegler had transferred title of the automobile to Copien prior to the accident.

The moving papers and pleadings disclose the following evidentiary matters which, due to failure of appellant to file counteraffidavits, must be deemed uncontroverted. On August 3, 1960, State Farm issued to Cegler a liability insurance policy covering a 1950 Chevrolet owned by him. The policy provided that “[n]o interest in this policy is assignable unless the company’s consent is endorsed hereon.” Cegler assigned the title of the vehicle to Copien on November 8, 1961, and Copien was driving the car November 22d when the collision causing injury to appellant occurred. On his application to the motor vehicle department for transfer of ownership, which was subscribed two months later, January 24, 1962, Copien represented that he had acquired the automobile on November 8, 1961, but that he had operated it on Wisconsin highways for the first time on January 24, 1962. Copien filed an accident report with the motor vehicle department on April 9, 1962, and indicated on the SR-21 form that liability coverage was provided by State Farm. State Farm did not, within thirty days, deny that a policy was in effect, and later certified that the policy issued to Cegler was in force on November 22, 1961.

Appellant contends that these facts admit of conflicting inferences in two major respects. First, that since it can be reasonably inferred that Cegler supplied Copien with the insurance coverage information inserted in the SR-21 portion of the accident report, their relationship must have been something other than seller and buyer. However, even assuming the Cegler did tell Copien that the car was insured by State Farm, such a communication would hardly be determinative in proving any type of relationship between Cegler and Copien.

Second, that respondent’s failure to respond to the SR-21 form constitutes an admission of liability which in turn is tantamount to saying that no sale took place. But any action or inaction on the part of the alleged insurer can have no bearing whatsoever on the ownership question.

When selling a vehicle, the owner must insert the name of the purchaser on the certificate of title, endorse the certificate, and deliver the certificate to the buyer. After the vehicle is transferred to him, the new owner must apply for a new certificate of title by filling in the appropriate provisions of the old title certificate and sending it to the motor vehicle department. Pointing out that the affidavits are silent as to (1) whether or not Cegler actually delivered the certificate of title and/or ■ the vehicle to Copien on November 8th, and (2) whether Copien operated the car with Cegler’s plates or with none at all, appellant argues that an inference arises that the parties merely agreed to sell the car in the future. However, it should be noted that the fact that Copien filled out the certificate on November 8th demonstrates that he did have at least temporary possession of it on that date. Furthermore, what appellant overlooks is that according to the governing statutes, the certificate of title could not have been completed by both the buyer and the seller until after the sale had been ultimately consummated. Thus, any side agreements as to license plates or when the car should physically change hands become immaterial to the question of when title was actually transferred. Cegler’s affidavit that he transferred “title and ownership of the auto” to Copien on November 8, 1961, and the declarations by Copien and Cegler in the certificate that the sale was made on November 8th lead inescapably to the conclusion that that was the date of the transfer. Nor do any possible violations of the law on the part of Copien (in (1) driving either with Cegler’s registration plates or with none at all, (2) representing that the car was not driven on the highway until January 24, 1962, and (3) not immediately applying for a title) indicate otherwise. This is because what Copien did after acquiring the automobile can have no bearing on when he actually bought it.

The second reason advanced by the appellant as to why the trial court erred in granting State Farm’s motion for summary judgment is that, even if the automobile was sold on November 8, 1961, respondent is estopped from raising a defense of noncoverage by its failure to respond to the SR-21 form naming it as insurer. On this point the case, as the trial court ruled, is controlled by Hain v. Biron. In Hain a liability policy which had been issued. to one Biron expired on February 22, 1962, and was not renewed. Biron was involved in an accident on April 13, 1963, and took out a second policy, effective June 1, 1963. He filed an SR-21 with the motor vehicle department stating that his liability was covered by insurance. The SR-21 was sent to the insurance company which did not return it to the motor vehicle commissioner with a denial that a policy had been in effect on April 13th until after the thirty-day time limit had elapsed. This court held that the failure to file did not amount to an admission of liability under sec. 344.15 (4), Stats., since this section only related to the ministerial function of the commissioner, and that the circumstances under which an insurance company is estopped from claiming no coverage are limited to those specifically mentioned in sec. 344.15 (5).

Relying on Schneck v. Mutual Service Casualty Ins. Co. and an article by Walter M. Bjork in the Wisconsin Bar Bulletin, appellant urges that Rain be overruled; that, contrary to what was held in Rain, the failure to declare within thirty days that either the owner or operator of the vehicle, or both, was not covered by a policy operates, under sec. 344.15 (4), Stats., to estop the insurance company from later raising this defense. In Schneck this court said:

“The plaintiffs further contend because the estoppel created by sec. 344.15 (4), Stats., is one created as a matter of law and is a matter of evidence only, it differs from estoppel at common law or in equity and consequently the rules of pleading do not apply. We do not agree. The estoppel created by this section removed only the element of reliance from equitable estoppel and did not make it merely a matter of evidence.”

But in Schneck the problem was whether the driver of the car was operating it with the insured’s permission, a defense specified in sub. (5). Sub. (4) also provided that when this particular defense was involved, an affidavit of the owner to this effect must accompany the corrected SR-21. Thus, any estoppel created under sub. (4) is concerned with permission, and Schneck is not authority for the proposition that an insurer is estopped from asserting that there was no policy in effect.

In a footnote to his article, Mr. Bjork says:

“. . . attention is directed to Section 344.15 (4) . . . which provides that the commissioner shall assume that an automobile liability policy was in effect and applied to both the owner and operator with respect to the accident unless the company notifies the commissioner otherwise within the 30 day period. The statute refers to item 4 on the back of the SR-21 form and it would appear that unless the company corrects the form by checking item 4 it will also be estopped in this fourth respect.”

However, this language was only inserted as a query to the opinion that:

“It is obvious from [sec. 344.15 (5), Stats.] . . . that the insurance company by its correction and filing of the SR-21 may be estopped from using as a defense either lack of permission, violation of use, or use beyond geographical limits. These appear to be the only defenses which an insurance company may lose under the new SR-21 law/’

This is precisely what was held in Hain. The Safety Responsibility Law is designed to protect third-party beneficiaries. It may be true, as appellant argues, that the Hain interpretation of sec. 344.15 (4) and (5), Stats., will work a hardship in some cases in that an injured person can rely on the assumption of coverage to his detriment. Furthermore, as has been suggested, there may be no good reason for not estopping insurers from raising defenses other than singled out in sec. 344.15 (5) when no timely correction has been offered. But the legislature has spoken. We observed in Hain that:

“In adopting the above-quoted provisions of sec. 344.15 (5) the legislature was obviously attempting to limit the circumstances under which an insurance company is estopped from claiming no coverage by reason of any failure on its part to timely notify the motor vehicle department of corrections in the report (the SR-21).”

In light of the proviso in sec. 344.15 (5), Stats., that “[n]othing in this chapter shall be construed to impose any obligation not otherwise assumed by the insurance company” and the specific reference in that section to three situations where the insurer is estopped, sec. 344.15 (4) should not be interpreted to estop respondent from defending on the ground that no policy was in effect.

As a third and final reason for reversing the trial court, appellant argues that even if the Hain rule is not changed, it nonetheless should not be applied to the present facts because respondent conceded that the policy was in effect on November 22, 1961. But this admission was to the effect that the policy had not lapsed or been canceled and not that it covered Copien at the time of the collision.

Separate Judgment and Attorney’s Fees.

Appellant contends that the trial court abused its discretion in dismissing the action as to respondent State Farm. More than one judgment can be entered in an action where the interests of justice will be promoted. Since State Farm cannot be liable to appellant in this case, there appears to be no good reason why the suit cannot be dismissed as to it immediately.

Relying on Rheingans v. Hepfler, appellant further maintains that it was error to allow State Farm to tax attorney’s fees, under sec. 271.03, Stats., in the amount of $100 when the insurance company and Cegler were represented by the same counsel. Appellant fears another assessment of attorney’s fees in the event Cegler is ultimately successful. However, Rheingans stands for the proposition that parties with identical interests but different attorneys cannot each tax attorney’s fees.

Since Cegler may ultimately be found to be liable to appellant on an agency theory, denying costs to State Farm at this point gives rise to the possibility that no fees will be taxed whatsoever even though one defendant has prevailed. Consequently the proper time to raise the issue of double costs is at the conclusion of the lawsuit. In addition, although the issue of ownership is common to both Cegler and State Farm, the question of agency is peculiar to Cegler alone. Thus, due to the lack of a completely identical interest, it would not be an abuse of discretion to award double fees.

By the Court. — Orders affirmed.

        Fjeseth v. New York Life Ins. Co. (1961), 14 Wis. (2d) 230, 235, 111 N. W. (2d) 85; Bryan v. Noble (1958), 5 Wis. (2d) 48, 53, 92 N. W. (2d) 226.

        Fjeseth v. New York Life Ins. Co., supra, footnote 1.

         Bextel v. Franks (1948), 252 Wis. 567, 32 N. W. (2d) 230.

       Sec. 342.18 (1) (a), Stats.

       Sec. 342.18 (1) (b), Stats.

       Sec. 342.19 (1), Stats.

         (1965), 26 Wis. (2d) 377, 132 N. W. (2d) 593.

       Sec. 344.15 (4), Stats.

       Which provides in part: “The commissioner shall assume that an automobile liability policy or bond as described in this section was in effect and applied to both the owner and operator with respect to the accident unless the insurance company or surety company notifies the commissioner otherwise within 30 days from the mailing to the company of that portion of the report pertaining to the automobile liability policy or bond.”

       “(5) Nothing in this chapter shall be construed to impose any obligation not otherwise assumed by the insurance company or surety company in its automobile liability policy or bond except that if no correction is made in the report within 30 days after it is mailed to the insurance company or surety company, the company, except in case of fraud, whenever such fraud may occur, is estopped from using as a defense to its liability the insured’s failure to give permission to the operator or a violation of the purposes of use specified in the automobile liability policy or bond or the use of the vehicle beyond agreed geographical limits.”

       (1963), 18 Wis. (2d) 566, 119 N. W. (2d) 342.

       The New SR-21 Look in Wisconsin, 1958 Wisconsin Bar Bulletin (February), 12.

        Schneck v. Mutual Service Casualty Ins. Co., supra, footnote 11, at page 573.

       1958 Wisconsin Bar Bulletin (February), at page 23.

       1958 Wisconsin Bar Bulletin (February), at page 21.

         Mueller v. American Indemnity Co. (1963), 19 Wis. (2d) 349, 120 N. W. (2d) 89.

       See Note Insurance — The New Safety Responsibility Law, 1959 Wisconsin Law Review, 552, 556.

        Hain v. Biron, supra, footnote 7, at page 380.

        Home Savings Bank v. Bentley (1958), 5 Wis. (2d) 19, 92 N. W. (2d) 377.

       (1943), 243 Wis. 126, 9 N. W. (2d) 585.


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    Estate of Jankewicz: Jankewicz, Appellant, v. Dmitrovsky and others, Respondents.

      January 10

    February 1, 1966.

      For the appellant there was a brief and oral argument by Bernard F. Mathiowetz of Milwaukee.
    For the respondents Andrew Dmitrovsky and Ivan Kozloski there was a brief by Ebert, Kuswa & Ebert of Milwaukee, and oral argument by Arthur L. Ebert, Jr.

    For the respondent Orthodox Church of the Holy Virgin Protection there was a brief and oral argument by Thomas P. Maroney of Milwaukee.
   Beilfuss, J.

The issues involved on this appeal are the construction of the will and the widow’s right to allowances.

The portion of the testator’s will in dispute here is:

“SECOND: It is my express wish and will that my wife, ANNA JANKEWICZ, also known as ANNA VOJTKA, shall receive no share or portion of my estate. If she is still my wife at the time of my death, and as such makes any claim to my estate, she shall receive only the minimum amount to which she may by law be entitled.”

The residue was given to the respondent church.

Appellant petitioned the court for assignment of the entire estate, arguing that the will provides for her to take as if testator had died intestate. Then, under secs. 237.01 (2), 237.02 (1), and 318.01 (1), Stats., she would be entitled to the entire estate, testator having never had children.

The county court concluded that the will is not ambiguous and provides for appellant to receive only such share of the estate as provided by the statutes concerning election against the will — secs. 233.13, 233.14, Stats.

While the position taken by the court has considerable merit — especially in view of the facts that testator specifically disinherited appellant, that he provided for her to make a “claim” against his estate to receive anything, and that even then she would receive only the “minimum amount” allowed by law — we prefer to hold that the will is ambiguous.

In Estate of Gibbs (1961), 14 Wis. (2d) 490, 496, 111 N. W. (2d) 413, we considered several instances of ambiguity in which extrinsic evidence may be resorted to. One example of a latent ambiguity discussed there is a situation where no single person or thing answers perfectly the description in the will, but two or more persons or things answer that description imperfectly. In the case at bar no set of laws exactly fits the description “law” used by the testator, but either the laws of intestacy or the laws of election against the will fit that description imperfectly. There is also a patent ambiguity existing on the face of testator’s will. He expressed a wish that appellant receive nothing from his estate; he then expressed a means by which she could obtain some portion of his estate. This inconsistency on the face of the will raises a patent ambiguity. Thus, it was proper for the county court to consider extrinsic evidence, as it did, to construe the ambiguities in the will.

Appellant cites Estate of Gray (1953), 265 Wis. 217, 61 N. W. (2d) 467, and Estate of Hipsch (1953), 265 Wis. 446, 62 N. W. (2d) 18, in support of her argument that the laws of intestacy apply.

In Estate of Gray, supra, the will provided (p. 218) :

“ ‘3. I herewith give, devise, and bequeath unto my wife, Mildred Gray, the share of my estate which she would receive under the law if I died intestate.’ ”

The residue was given to three sisters.

We construed the will as unambiguous and ordered distribution under the laws of intestacy.

In Estate of Hipsch, supra, the will provided (p. 447) :

“ ‘Second: I give, devise, and bequeath to my wife, Marie Hipsch, such homestead and dower rights in all of the real estate of which I may died seized as she would have if I had died intestate.’ ”

The residue was placed in trust.

Again, we found the will unambiguous, and relied on Gray to require distribution as in an intestacy.

In both of those cases the will was clear and unambiguous, and referred specifically to the intestate statutes. A different situation arose in Will of Pfeiffer (1939), 231 Wis. 117, 285 N. W. 432, and Will of Klinkert (1955), 270 Wis. 362, 71 N. W. (2d) 279.

In Will of Pfeiffer, supra, the will provided (p. 118) :

“ ‘Second: I give, devise and bequeath unto my wife, Johanna Pfeiffer, all that part of my estate which would legally go to her according to the statutes provided therefor.’ ”

We found that will ambiguous and looked at the facts and circumstances surrounding the execution of the will and determined that the testator could not have contemplated the statutes operative only if there is no will, because the testator made a will purporting to dispose of all of his property. Thus, we held that the testator must have contemplated the election statutes.

In Will of Klinkert, supra, testator mentioned “statutory share” several times. We found an ambiguity in the language, and after looking to extrinsic evidence admitted, determined that testator was referring to the election statutes.

The present will contains language nearly identical to that in Pfeiffer, except that here we have even a stronger case for holding that decedent contemplated the election statutes. Decedent specifically disinherited his wife. The extrinsic evidence, mostly in form of facts stipulated, indicates that decedent must have intended that if appellant were to receive anything, she should take by election. The parties had been divorced once, and a second suit had been commenced. They had lived separated from one another for over seven years. Decedent had contributed nothing to appellant’s maintenance and support during those years. Appellant was self-supporting. She has not shown that she returned any of the property she received by the divorce judgment, even though that judgment was vacated. She used her maiden name, Vojtka, instead of her married name, Jankewicz, at least on some occasions. Decedent had a very close relationship with respondent church which he named as residuary beneficiary, being a long-time member and officer.

Thus, in construing the ambiguity in the will, we hold that the decedent intended appellant to receive no portion of his estate, except the share provided indestructibly by the election statutes.

Appellant petitioned the court for allowances under sec. 313.15 (2), (4), Stats. Sec. 313.15 (2), provides:

“Allowance to Family. The widow and minor children, or either, constituting the family of the deceased testator or intestate, shall have such reasonable allowance out of the personal estate or the real estate, or both, of the deceased as the county court shall judge necessary for their maintenance until an award shall be made or refused as provided in subsection (4) (a) of this section, or their shares assigned to them.”

The trial court denied the petition on the ground that appellant did not constitute the family of the decedent. It determined that the phrase “constituting the family of the deceased testator” was one of qualification, not one of definition. Since appellant did not live with testator for at least seven years prior to his death and received no contributions toward her maintenance and support from him, she did not qualify as “constituting the family of the decedent.”

We do not decide whether the language construed by the court imposes an additional qualification upon the one seeking the allowance or merely defines the words “widow and minor children,” which precede it, and limits the degree of relationship to the testator, to widows and minor children only, for purposes of this allowance, because the reasoning in Estate of Mayer, ante, p. 497, 139 N. W. (2d) 111 controls.

In Estate of Mayer, supra (p. 501), we said in construing the provisions of sec. 313.15 (2), Stats., where the widow had relied (as here) on Estate of Sullivan (1930), 200 Wis. 590, 592, 229 N. W. 65:

“Appellant contends that while the county court has discretion under this statute in fixing the amount of a widow’s allowance, the statute makes it mandatory that some allowance be ordered. She especially relies upon this statement appearing in Estate of Sullivan:
“ ‘It is considered that the object and purpose of the statute is to substitute the estate of the husband for the deceased husband during the progress of the settlement of the estate so far as support of the family is concerned. What allowance should be made is to be determined under all the facts and circumstances. Ordinarily in the case of a solvent estate it would be such sum as would maintain the family in approximately the same degree of comfort in which they were maintained by the husband. Under the statute the widow is entitled to an allowance for her support during the progress of the settlement of the estate and it should be paid when and as there are funds available for that purpose, and the fact that the widow has been able to survive by means of aid extended to her or loans made by her friends or relatives does not deprive her of her rights under the statute.’
“While the aforequoted statement makes clear the purpose of the family allowance provided for by sec. 313.15 (2), Stats., it does not declare that such an allowance must be granted in every case of a solvent estate. The use of the word ‘Ordinarily’ at the beginning of the third sentence suggests that there may be exceptions to the rule therein announced. The statutory words ‘such reasonable allowance ... as the county court shall judge necessary’ also are subject to the reasonable interpretation that there might be situations in which a county court could determine that no allowance was necessary. On a number of occasions this court has affirmed the plain meaning of the statute by stating that the matter of allowances is a matter within the discretion of the probate court. As this court said in Ford v. Ford [ (1891), 80 Wis. 565, 569, 50 N. W. 409] in upholding an allowance by the circuit court:
“ ‘Under all the circumstances, the allowance seems quite reasonable, and no good reason appears why this court should now interfere with it. Moreover, the amount of the allowance is a matter within the sound discretion of the court, and the order therefor may be vacated or changed by the county court at any time hereafter for causes arising since it was made.’
“We have no hesitancy in holding that sec. 313.15 (2), Stats., does not lay down a mandatory requirement that an allowance must be ordered in every solvent estate in which an application therefor is made. Where, as here, such an application has been wholly denied the issue on review by this court is whether the denial constitutes an abuse of discretion.” (Footnotes omitted.)

In Estate of Mayer, supra, it was significant that the decedent was survived by no minor children, and that the widow derived most of her income from provisions made for her by the decedent.

Here, also, Jankewicz was survived by no minor children, so the allowance is sought solely for the widow. From the state of the record it is a fair and reasonable inference that appellant has already derived a substantial sum from the property settlement adjudged in the divorce decree of 1941. Since appellant has shown neither need for the allowance (she being self-supporting), nor that she was accustomed to receiving sums from decedent for her maintenance and support while he lived, the court did not abuse its discretion in denying her petition. Appellant has shown only that she maintained the legal status of wife of the decedent. This showing alone is insufficient to compel the probate court to grant an allowance under sec. 313.15 (2), Stats.

Under the reasoning in Estate of Sullivan, supra, that the allowance exists to place the widow in the same degree of comfort maintained for her by her husband, appellant is not entitled to the allowance, since her maintenance and support are now derived independent of decedent, and were even while he lived.

Appellant’s petition for allowances included a claim under sec. 313.15 (4) (a), Stats., which provides:

“(4) Allowances for Funeral Expenses and to- Widow and Children, (a) If the total value of an estate exceeds the dispositions made therefrom under the preceding subsections the county court may, in its discretion, assign from the residue of such estate a sum or value not exceeding $2,000 for the use and support of the widow and minor children of the deceased; and if there be no widow, for the support of the minor children; and if there is a widow but no minor children, for the support of the widow, in either case in such proportion as the judge may determine.”

This subsection is clearly one designed to be secondary to the subsections preceding it, and it is made expressly discretionary. Appellant has not presented any evidence to support a finding of abuse of discretion. Therefore, the court’s denial of her petitions must stand.

By the Court. — Orders affirmed.


author: PER CURIAM. LOUIS B. BUTLER, JR., J.

text:
    In the Matter of Disciplinary Proceedings Against Carlos Gamino, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Carlos Gamino, Respondent.
    Supreme Court

      No. 2004AP2975-D.

      Decided April 28, 2006.

    2006 WI 32
    (Also reported in 712 N.W.2d 873.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Carlos Gamino be reprimanded for professional misconduct. That misconduct consists of failure to act with reasonable diligence, failure to immediately refund unearned fees, contacting a client after receiving notice successor counsel had been retained, and a trust account violation. In addition to a public reprimand, the referee recommended that Attorney Gamino pay the costs of this proceeding. As of November 3, 2005, the Office of Lawyer Regulation (OLR) reported costs of $7773.38.

¶ 2. No appeal has been filed. We adopt the referee's findings of fact and. conclusions of law and agree that a public reprimand is appropriate discipline for Attorney Gamino's misconduct in this matter. We further conclude that Attorney Gamino should pay the costs of this disciplinary proceeding.

¶ 3. Attorney Gamino was admitted to the practice of law in Wisconsin 1997. He has been previously disciplined.

¶ 4. The OLR filed an amended complaint against Attorney Gamino alleging 16 counts of misconduct with respect to matters he handled for four former clients. Kathleen Callan Brady was appointed referee and on June 23, 2005, she conducted an evidentiary hearing. The referee issued her report on October 14, 2005. The referee determined that the OLR had proven misconduct in six of the 16 counts charged. The OLR voluntarily dismissed one of the counts and the referee found that the OLR failed to prove by clear, convincing, and satisfactory evidence misconduct charged in nine counts. No appeal has been filed.

¶ 5. The referee found that on August 14, 2002, client D.J. retained Attorney Gamino to represent him in a lawsuit to recover property damage due to an automobile accident. D.J. paid Attorney Gamino $1200 in seven installments. Attorney Gamino failed to file an answer on D.J.'s behalf and subsequently, opposing counsel moved for default judgment. The court granted the motion and judgment was entered on October 1, 2002.

¶ 6. On November 6, 2002, D.J. represented himself at a Department of Transportation (DOT) hearing and was successful in establishing that he was not at fault in the accident. The hearing examiner terminated D.J.'s license suspension concluding "no reasonable possibility exists of a judgment being rendered against [D.J] for damage to property."

¶ 7. The referee found that on December 11, 2002, Attorney Gamino's secretary signed his name to a form letter requesting the next payment in accordance with the retainer agreement, which client D.J. subsequently paid. Thereafter, D.J. and the DOT were informed of the default judgment and D.J.'s license and registration were suspended. D.J. retained successor counsel, who remedied the problems. After Attorney Gamino was notified regarding the successor counsel, he contacted D.J. to apologize for his conduct. Following the OLR's demand, Attorney Gamino refunded the entire fee paid to D.J. Attorney Gamino subsequently paid $5000 in settlement of all claims arising from his misconduct in this matter.

¶ 8. The referee determined that Attorney Gamino's failure to appear to defend a civil lawsuit against D.J. and failing to take steps to seek relief supported two counts alleging failure to act with reasonable diligence contrary to SCR 20:1.3. Also, his failure to refund immediately the unearned fee after D.J. retained successor counsel violated SCR 20:1.16(d). In addition, Attorney Gamino admitted he had contacted D.J. after receiving notice that successor counsel had been retained, violating SCR 20:4.2. The referee determined that sending a form letter was negligent but did not support purposeful misrepresentation to a client as alleged in the OLR's complaint.

¶ 9. The second client matter involved Attorney Gamino's representation of B.E. in a divorce action. B.E. executed a retainer agreement and paid a $1500 retainer fee and a $191 filing fee. Attorney Gamino placed the $191 filing fee in his general account instead of a separate trust account. Attorney Gamino filed a summons and complaint in May 2002. In December 2002 default judgment was granted. B.E. requested a copy of the final judgment several times, but Attorney Gamino did not provide one. Attorney Gamino eventually filed the final findings of fact, conclusions of law and judgment with the court in 2003.

¶ 10. Attorney Gamino admitted that he failed to act with reasonable diligence in filing the documents constituting a violation of SCR 20:1.3. He also admitted that he placed the $191 filing fee in his business account, constituting a trust account violation contrary to SCR 20:1.15.

¶ 11. The third client matter involved Attorney Gamino's representation of H.S. and his wife, R.S., in connection with H.S.'s arrest in an alleged battery to a police officer. The clients paid Attorney Gamino $500 to represent H.S. at a charging conference, but they did not sign a written agreement regarding representation. The clients also discussed a potential civil action against the police department.

¶ 12. At the charging conference, Attorney Gamino was advised that no charges would be filed against H.S. Attorney Gamino advised R.S. that no charges would be filed and spoke with her several times. Attorney Gamino testified in the disciplinary proceedings that he also requested a $2000 retainer fee to represent them if they chose to commence a civil action. R.S. testified, however, that Attorney Gamino had informed her that he believed felony charges would likely be filed, and that he would get everything dropped if the clients paid him $2000. No retainer was received, and R.S. demanded the $500 fee be returned, but it was not refunded.

¶ 13. The referee determined that there were a number of factual disputes and conflicting testimony with respect to this matter. The referee concluded that H.S. and R.S.'s testimony was inconsistent, making it unreliable and therefore, did not support the OLR allegations. The referee further believed Attorney Gamino's testimony that he discussed a civil suit and the $2000 retainer was discussed in this respect. Therefore, the referee determined the OLR failed to prove by clear, convincing, and satisfactory evidence the alleged misconduct with respect to this representation.

¶ 14. The fourth client matter involved representing J.J. on a possession with intent to deliver a controlled substance charge. J.J.'s wife, J.G., contacted Attorney Gamino who informed her that he required a nonrefundable retainer fee of $5000. J.G. paid $2500 when she signed the fee agreement and paid the balance at a later date. Attorney Gamino met with J.J. several times and made court appearances between March 1 and April 10, 2003. Thereafter, J.J. discharged Attorney Gamino as his attorney and Attorney Gamino subsequently returned J. J.'s file to him. J.G. requested the unused portion of the retainer be returned but no portion of the fee was returned.

¶ 15. The referee noted that neither J.J. nor J.G. testified at the disciplinary hearing. It was undisputed that Attorney Gamino had given J.J. his file as requested. The referee found no rule violation.

¶ 16. The parties stipulated that there had been a previous disciplinary proceeding involving Attorney Gamino, which was on appeal at the time of the disciplinary hearing in this case, as well as another matter before this court. The referee stated that there was no record or evidence of prior discipline introduced at the disciplinary hearing over which she was presiding. Therefore, she did not consider previous discipline in making her recommendation for sanctions against Attorney Gamino.

¶ 17. In support of her recommendation for public reprimand for the violation of these six counts, the referee stated there was no evidence of actual damage to the parties. She observed that a primary consideration of the disciplinary proceeding was whether there would be a likelihood of the attorney engaging in unprofessional conduct in the future. In addition, the referee noted an important consideration is deterrence. The referee concluded that Attorney Gamino's actions warranted a public reprimand to deter unprofessional conduct.

¶ 18. A referee's findings of fact on a disciplinary matter will not be set aside unless clearly erroneous. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. Conclusions of law are reviewed de novo. Id. Although this court considers the referee's recommendation as to appropriate discipline, we do not accord it any conclusive or great weight. It is this court's responsibility to determine appropriate discipline and in making that determination, this court may impose discipline more or less severe than recommended. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶ 19. We adopt the findings of fact and conclusions of law as set forth in the referee's report. We further agree that the seriousness of Attorney Gamino's misconduct as established in this proceeding warrants a public reprimand.

¶ 20. The referee further recommended that Attorney Gamino be required to pay all costs of the disciplinary proceeding. Attorney Gamino has not objected to or appealed the referee's report and recommendation. Under SCR 22.24(1), this court has discretion to assess all or a portion of the costs of the disciplinary proceeding in which misconduct has been found against the respondent. See In re Disciplinary Proceedings Against Konnor, 2005 WI 37, ¶ 32, 279 Wis. 2d 284, 694 N.W2d 376. There is no claim in the instant case that the costs requested by the OLR are excessive or unreasonable. See id. Accordingly, we order Attorney Gamino to pay the costs of this proceeding, as recommended by the referee.

¶ 21. IT IS ORDERED that Attorney Carlos Gamino be publicly reprimanded for his professional misconduct.

¶ 22. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Gamino shall pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Carlos Gamino to practice law in Wisconsin shall be suspended until further order of this court.

LOUIS B. BUTLER, JR., J.

¶ 23. {concurring in part, dissenting in part). I join the court's decision and order as to the discipline imposed in this action. I write separately because I disagree with the court that full costs should be imposed in this case. For the reasons stated in my concurring in part, dissenting in part opinions in In re Disciplinary Proceedings Against Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367 and In re Disciplinary Proceedings Against Backes, 2005 WI 59, 281 Wis. 2d 1, 697 N.W.2d 49, because Attorney Gamino was absolved of any misconduct in the matters involving H.S. and R.S., see per curiam op., ¶ 13, and J.J., see per curiam op., ¶ 15, I would not assess any costs associated with the counts involving those matters. Until our new rule goes into effect, I would not assess costs against an attorney in unrelated, unsuccessful counts where no misconduct has been found concerning a particular client. Such an assessment is simply not supported by the purposes underlying the factors we currently consider in determining the appropriate level of discipline where the misconduct is rooted in unrelated matters.

¶ 24. I therefore respectfully dissent from that portion of the court's opinion that assesses full costs against Attorney Gamino. I concur with the remainder of the decision.

¶ 25. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this concurring in part, dissenting in part opinion.

        See In re Disciplinary Proceedings Against Gamino, 2005 WI 168, 286 Wis. 2d 558, 707 N.W.2d 132.

       SCR 20.T.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

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

       SCR 20:4.2 provides that "[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

       SCR 20:1.15 provides in relevant part:
      (b) Segregation of trust property.
      (1) Separate account. A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and 3rd parties that is in the lawyer's possession in connection with a representation. All funds of clients and 3rd parties paid to a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable trust accounts.

       1 recognize that this court recently adopted an amendment to the rules that establishes the criteria to be applied in situations such as this when assessing costs. That amendment has not yet taken effect.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Michelle L. Danielson, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Michelle L. Danielson, Respondent.
    Supreme Court

      No. 2005AP1903-D.

      Decided April 28, 2006.

    2006 WI 33
    (Also reported in 712 N.W.2d 671.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Michelle L. Danielson's license to practice law in Wisconsin be suspended for six months for professional misconduct. The misconduct consists of failing to fulfill her obligations with respect to acting with reasonable diligence and promptness in representing a client, keeping the client reasonably informed of the status of his matter, promptly complying with client requests for information, taking steps to the extent reasonably practical to protect a client's interests upon termination of representation, responding to the Office of Lawyer Regulation (OLR), and filing a post-suspension affidavit with the OLR within 25 days of suspension. The referee also recommended that Attorney Danielson be required to refund a $500 retainer and to pay the costs of this proceeding. The OLR has reported costs of $2717.52 as of February 6, 2006.

¶ 2. We determine that the seriousness of Attorney Danielson's professional misconduct warrants a suspension of her license to practice law for six months. Attorney Danielson was admitted to practice law in Wisconsin in 1996. She has not been previously disciplined, although on November 1, 2004, Attorney Danielson was suspended by the Wisconsin Supreme Court for nonpayment of mandatory bar dues.

¶ 3. On January 11, 2005, Attorney Danielson received a temporary suspension order from the Wisconsin Supreme Court for her failure to cooperate with the OLR and her failure to respond to an order to show cause. Attorney Danielson did not notify her client of either suspension and Attorney Danielson did not comply with duties following suspension or revocation as detailed in SCR 22.26.

¶ 4. In October 2002 a client, J.B., retained Attorney Danielson as counsel in an insurance dispute. A written retainer agreement was signed and Attorney Danielson accepted a $500 retainer. Attorney Daniel-son did not provide legal services and in the fall of 2003 the client was advised that Attorney Danielson's phone had been disconnected. All letters the client sent to Attorney Danielson were not returned, nor were they responded to by Attorney Danielson. In August 2004 the client filed a grievance with the OLR against Attorney Danielson. Attorney Danielson did not respond to the OLR's correspondence.

¶ 5. The OLR filed a six-count complaint alleging professional misconduct. Dennis J. Flynn was appointed referee. Attorney Danielson did not file an answer to the complaint and did not otherwise appear in this disciplinary proceeding. At the December 27, 2005, hearing on the OLR's motion for default judgment, the referee found Attorney Danielson in default.

¶ 6. The referee concluded that by failing to advance her client's interests in pursuit of his insurance claim and by failing to do any discernible work in the matter, Attorney Danielson failed to "act with reasonable diligence and promptness in representing a client," contrary to SCR 20:1.3. As a second count, the referee concluded that by failing to communicate with the client about the status of his matter and by failing to respond to his telephone and written inquiries, Attorney Danielson failed to "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information," contrary to SCR 20:1.4(a). In a third count, the referee found that by failing to refund the client's $500 retainer when she performed no services for him, Attorney Danielson failed to "take steps to the extent reasonably practicable to protect a client's interests" upon termination of representation, contrary to SCR 20:1.16(d). The referee further found that with respect to the fourth count, by failing to provide a written response to the OLR concerning the client's grievance and by willfully failing to provide relevant information to the OLR or to fully answer the OLR's questions during the course of the investigation of the grievance, Attorney Danielson violated supreme court rules regarding a lawyer's conduct, contrary to SCR 22.03(2) and (6), pursuant to SCR 20:8.4(f).

¶ 7. The referee further concluded that by failing to notify the client by certified mail of her two suspensions and by failing to notify the client to seek legal advice elsewhere, Attorney Danielson violated supreme court rules regarding a lawyer's conduct, contrary to SCR 22.26(l)(a) and (b), pursuant to SCR 20:8.4(f). Additionally, by failing to file a SCR 22.26(1)(e) post-suspension affidavit with the OLR within 25 days of her suspension, the referee concluded Attorney Danielson violated SCR 22.26(l)(e), pursuant to SCR 20:8.4(f).

¶ 8. The referee's fact findings will not be set aside unless clearly erroneous. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. We review conclusions of law de novo. Id. We consider the referee’s recommendation as to appropriate discipline, but do not accord it conclusive or great weight. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686. It is this court's responsibility to determine appropriate discipline and in making that determination, this court may impose discipline more or less severe than recommended.

¶ 9. We adopt the findings of fact and conclusions of law set forth in the referee's report. We conclude that the seriousness of Attorney Danielson's misconduct as established in this proceeding warrants a suspension of her license to practice law for a period of six months. We agree with the referee's recommendation that restitution, costs, and eight hours of ethics education should be required.

¶ 10. We further conclude that under the circumstances of this case, Attorney Danielson's suspension should date from January 11, 2005.

¶ 11. IT IS ORDERED that the license of Michelle L. Danielson to practice law in Wisconsin is suspended for a period of six months, effective January 11, 2005.

¶ 12. IT IS FURTHER ORDERED that Attorney Michelle L. Danielson comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 13. IT IS FURTHER ORDERED that Attorney Michelle L. Danielson refund, within 60 days of the date of this order, the $500 retainer paid by her client, J.B. If this refund is not paid within the specified time, the license of Attorney Danielson to practice law in Wisconsin shall remain suspended until further order of this court.

¶ 14. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Michelle L. Danielson shall pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Attorney Danielson to practice law in Wisconsin shall remain suspended until further order of this court.

¶ 15. IT IS FURTHER ORDERED that Attorney Danielson shall complete eight hours of ethics courses approved by the Wisconsin Board of Bar Examiners as a condition of her reinstatement. If the course work is not completed, the license of Attorney Danielson to practice law in Wisconsin shall remain suspended until further order of this court.

       SCR 22.03(2) and (6) state: Investigation.
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.
      (6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.

       SCR 20:8.4(f) states that it is professional misconduct for a lawyer to "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 22.26(1) states in relevant part: Activities following suspension or revocation.
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:
      (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation.
      (b) Advise the clients to seek legal advice of their choice elsewhere.

       SCR 22.26(1) (e) states: Activities following suspension or revocation.
      (e) Within 25 days after the effective date of suspension or revocation, file with the director an affidavit showing all of the following:
      (i) Full compliance with the provisions of the suspension or revocation order and with the rules and procedures regarding the closing of the attorney's practice.
      (ii) A list of all jurisdictions, including state, federal and administrative bodies, before which the attorney is admitted to practice.
      (iii) A list of clients in all pending matters and a list of all matters pending before any court or administrative agency, together with the case number of each matter.


text:
    In the Matter of Disciplinary Proceedings Against Jenelle Glasbrenner, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jenelle Glasbrenner, Respondent.
    Supreme Court

      No. 2003AP2647-D.

      Decided May 2, 2006.

    2006 WI 35
    (Also reported in 713 N.W.2d 627.)
   PER CURIAM.

¶ 1. We review a referee's report recommending that Jenelle Glasbrenner's license to practice law in Wisconsin be reinstated. The Office of Lawyer Regulation (OLR) and the Board of Bar Examiners (BBE) have both joined in that favorable recommendation.

¶ 2. We adopt the referee's findings of fact and conclusions of law and conclude that Attorney Glasbrenner's license to practice law should be reinstated upon the conditions recommended by the referee. We further direct Attorney Glasbrenner to pay the costs of the reinstatement proceeding, which total $2168.55 as of March 3, 2006.

¶ 3. Attorney Glasbrenner was admitted to practice law in Wisconsin in 1999. On April 22, 2005, this court suspended her license to practice law for six months for professional misconduct consisting of over billing the Office of the Wisconsin State Public Defender (SPD) for work she had performed for them. See In re Disciplinary Proceedings Against Glasbrenner, 2005 WI 50, 280 Wis. 2d 37, 695 N.W.2d 291.

¶ 4. Attorney Glasbrenner now seeks reinstatement of her license to practice law in Wisconsin. Judith Sperling-Newton was appointed referee in the matter and conducted a formal hearing on the reinstatement petition. The referee filed her report and recommendation on February 13, 2006, and recommended that this court grant the petition for reinstatement. As noted above, the OLR and-the BBE have both joined in that favorable recommendation.

¶ 5. SCR 22.31(1) provides the standard to be met for reinstatement of a law license. The petitioner has the burden of demonstrating "by clear, satisfactory, and convincing evidence" that the lawyer has the moral character to practice law, that the lawyer's resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that the lawyer has complied with SCR 22.26 and the terms of the suspension. In addition, SCR 22.29(4) sets forth related requirements that a petition for reinstatement must show. All of these additional requirements are effectively incorporated into SCR 22.3K1).

¶ 6. The referee in this case concluded that Attorney Glasbrenner had met all of the criteria for reinstatement, including repaying the SPD for the amounts over billed and paying the costs of the disciplinary proceeding. The referee concluded that Attorney Glas-brenner met her burden of demonstrating that her license to practice law in Wisconsin should be reinstated. The referee specifically found that Attorney Glasbrenner was genuinely remorseful about her conduct and that she did not appear to be making excuses or avoiding responsibility for her actions. The referee also noted that Attorney Glasbrenner sought an attorney mentor to assist her in complying with the rules of professional conduct and that she has said she intends to continue using the attorney mentor if her license to practice is reinstated.

¶ 7. The referee recommended that Attorney Glasbrenner's license to practice law be reinstated with the following conditions: (1) that she keep formal, accurate, and contemporaneous accounting of her time to be entered into her law firm’s billing system; and (2) that the OLR have the authority, for two years following her reinstatement, to supervise her in this regard and to require that she report to the OLR as requested with respect to her billing practices.

¶ 8. After careful review of the record we agree that Attorney Glasbrenner has established by clear, satisfactory, and convincing evidence that she has satisfied all the criteria necessary for reinstatement. Accordingly, we adopt the referee's findings of fact and conclusions of law and we accept the referee's recommendation to reinstate Attorney Glasbrenner's license to practice law in Wisconsin, subject to the conditions recommended by the referee. We further direct Attorney Glasbrenner to pay the costs of the reinstatement proceeding.

¶ 9. IT IS ORDERED that the petition for reinstatement of the license of Jenelle Glasbrenner to practice law in Wisconsin is granted, effective the date of this order.

¶ 10. IT IS FURTHER ORDERED that the reinstatement of Attorney Glasbrenner's license to practice law be subject to the following conditions: (1) that she keep formal, accurate, and contemporaneous accounting of her time to be entered into her law firm's billing system; and (2) that the OLR have the authority, for two years following her reinstatement, to supervise her in this regard and to require that she report to the OLR as requested with respect to her billing practices.

¶ 11. IT IS FURTHER ORDERED that within six months of the date of this order Jenelle Glasbrenner pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of her inability to pay the costs within that time, the license of Jenelle Glasbrenner to practice law in Wisconsin shall be suspended until further order of the court.

¶ 12. N. PATRICK CROOKS, J, took no part.

       SCR 22.31(1) provides: Reinstatement hearing.
      (l) The petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following:
      (a) That he or she has the moral character to practice law in Wisconsin.
      (b) That his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest.
      (c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to
      (m) and 22.29(5), are substantiated.
      (d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26.