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    Xuebiao Yao, Petitioner-Appellant, v. Board of Regents of the University of Wisconsin System, Respondent-Respondent.
    Court of Appeals

      No. 01-2160.

      Submitted on briefs January 11, 2002.

    Decided June 27, 2002.

    2002 WI App 175
    (Also reported in 649 N.W.2d 356.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of James A. Olson, Marsha M. Mansfield and John C. Carlson Jr. of Lawton & Cates, S.C., Madison.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Jennifer Sloan Lattis, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.

       Petition to review denied 9-26-02.

   DEININGER, J.

¶ 1. Xuebiao Yao appeals an order which affirmed a decision by the Board of Regents of the University of Wisconsin to dismiss him from his position as an assistant professor at the UW-Madison. The board concluded that Yao had engaged in misconduct which constituted just cause for his dismissal. Yao claims the board erroneously considered certain videotape evidence and that it erred in finding that he had intentionally sabotaged another researcher's experiment because its decision "failed to take into account evidence that would exonerate" him. We reject Yao's arguments and affirm the appealed order.

BACKGROUND

¶ 2. Dr. Xuebiao Yao, a cell biologist and native of China, was recruited to come to the University of Wisconsin-Madison to join its Physiology Department as an assistant professor. He arrived at the UW-Madison in February 1998, and was assigned laboratory space across the hall from Dr. Edwin Chapman, also an assistant professor in the Physiology Department, who was engaged in research involving bacteria-produced proteins.

¶ 3. In mid- to late-1998, Chapman and research assistants working under him began experiencing problems with their experiments. The temperature setting on a piece of laboratory equipment was increased on several occasions to the point that experimental materials were damaged. In other instances, experiments were ruined by the apparent presence of bleach or salt added to laboratory containers, and in some cases, from the switching or relabeling of tubes and flasks. Chapman and his assistants devised some "traps" to verify that someone was in fact interfering with their work. In addition to the usual, removable labels, they also coded their tubes and flasks with hidden duplicate markings. By doing so, they were able to verify that the regular labels were in fact being switched on occasion.

¶ 4. Chapman believed that his suspicions of tampering were thus confirmed and he contacted his department chairman and the University of Wisconsin Police. UW police detectives assisted Chapman in installing two video cameras in hopes of catching the perpetrator. One camera was mounted in a hallway, and the other over a "shaker" in a common equipment room situated between Chapman's and Yao's laboratories. The shaker is a device which vibrates and maintains a constant temperature for bacteria cultures in tubes and flasks so as to promote bacteria growth. The shaker in the common equipment room was purchased in part with Yao's laboratory start-up funds, and in part with departmental funds. Even though Yao placed a label on the shaker saying "Yao Lab," the understanding between Yao and Chapman was that Chapman and his assistants would be able to use the shaker from time to time.

¶ 5. Chapman was given four videotapes that he employed as follows. He placed a tape in each hidden camera, which would record a twenty-four hour period compressed into a two-hour, "time lapse" tape. Chapman would then remove the two tapes, place the two remaining tapes in the cameras, and during the next twenty-four hours he would review the recorded tapes to see if any suspicious activities were observable in the hallway or with respect to items placed in the common shaker. Chapman would then recycle the tapes for the next twenty-four hour period. As a result of reusing the tapes in this fashion, no more than twenty-four to forty-eight hours of taping were ever preserved at any one time. The hidden cameras were installed in late November 1998.

¶ 6. On Saturday, December 5, 1998, Chapman reviewed a tape from the common equipment room which had run from approximately noon on Friday, December 4th through noon on Saturday, December 5th. On this tape, Chapman observed several of his assistants placing "overnight culture tubes" in the shaker. The procedure involved overnight incubation of bacteria cultures in the shaker, some of which were to be transferred the next morning to two-liter flasks, which would subsequently be "induced" to begin manufacturing the proteins involved in Chapman's experiments. The tape showed that one of Chapman's students placed a half-dozen tubes in the shaker, and two other Chapman students placed a number of tubes in the shaker, all doing so between 4:00 and 6:00 p.m. on Friday. Then, at a little past 7:00 p.m., the tape shows Yao coming to the shaker and handling two of the tubes belonging to the first student, but it is not clear from the tape what Yao did with the tubes while he handled them. Yao replaced the tubes in the shaker, and he is also seen on the tape a few minutes later coming back to the shaker and looking into it.

¶ 7. Later in the tape, at about 6:00 a.m. on Saturday, one of Chapman's students is seen coming to the shaker and removing tubes. The student took these tubes off-camera where, according to his testimony, he transferred the cultures to two-liter flasks. He then returned with four of the two-liter flasks and inserted them in the shaker. At this point Chapman, who believed the tampering was happening during nighttime hours, stopped reviewing the December 4-5 tape. He was somewhat puzzled by Yao's activities on Friday evening, but thought little of it, as he did not suspect Yao of tampering with his experiments. In fact, he had given UW Police three other names as potential suspects, and had personally confronted one of his research assistants regarding his suspicions of her.

¶ 8. Because he was somewhat intrigued by Yao's activities, however, Chapman decided to retain this tape to review again on Monday. He therefore directly recycled one of the shaker tapes on Sunday, December 6, without viewing it. As a result, no tape is available for the shaker camera for a portion of the weekend. On Monday, December 7th, Chapman reviewed the December 4-5 tape again and decided there was nothing conclusive on it, so he put it in one of the cameras at about 5:00 p.m. About an hour later, one of Chapman's assistants came to him and showed him the results obtained from the four two-liter flasks that had been in the common equipment room shaker on Saturday morning, December 5th. The results indicated that materials in the flasks had been mixed with each other such that, instead of having two batches, each containing only one of the two different proteins which Chapman had sought to procure, a homogeneous mixture of the two proteins had resulted. Chapman immediately realized that there may be further activities of interest on the December 4-5 tape, which he had replaced in the camera approximately an hour before. He immediately removed that tape and viewed it again.

¶ 9. The tape shows that after Chapman's assistant had placed the four two-liter flasks in the shaker on Saturday morning, Yao came to the shaker between 8:00 and 9:00 a.m. and handled them. The time-lapse tapes show Yao taking two of a Chapman student's culture tubes and mixing their contents with one of the Chapman flasks and then mixing the contents of two of Chapman's flasks together. Additionally, Yao handled two of the Chapman flasks off-camera for about five to eight seconds. The tape later shows Chapman's assistant returning after 10:00 a.m. to "induce" the flasks by adding a protein-directing agent.

¶ 10. Based on Yao's activities as shown on the tape, Chapman reported to the department chairman that Yao had been tampering with his experiments. The department chairman confronted Yao on the matter and Yao was arrested and taken into custody. Although criminal charges did not ensue, the university began proceedings to discharge Yao from his position.

¶ 11. Under applicable university regulations, Yao was entitled to an evidentiary hearing before the UW-Madison Committee on Faculty Rights and Responsibilities (CFRR). The committee conducted a hearing spanning five days in December 1999, at which Yao was represented by counsel. The university presented the videotape evidence, as well as testimony from Chapman and his research assistants regarding the problems they had experienced earlier in 1998 and the activities as shown on the tape for December 4-5,1998. Yao testified and he presented character witnesses, as well as an expert who testified that the results obtained by Chapman's assistant for the December 4-5 laboratory work could not have been obtained by mixing two of Chapman's flasks as Yao was observed doing on the December 5th videotape.

¶ 12. In his testimony, Yao recounted his activities as shown on the tape. He explained that he was also conducting experiments that involved placing cultures in the common equipment room shaker during the weekend in question. He claims that he placed two two-liter flasks in the shaker at around noon on Friday. The first hour of the Friday tape, however, had been recorded over on December 7th, and thus it did not show Yao placing any flasks in the shaker when he claimed to have done so. Yao also explained that when he visited the shaker on Friday evening, he was simply checking on the status of one of his cultures. He testified that although he commonly used plastic culture tubes, as did most other researchers in the lab facility, he did have some glass and stainless steel tubes like those which Chapman exclusively employed.

¶ 13. Yao also testified that his handling of the flasks in the shaker on Saturday morning was pursuant to his own work in progress, and he explained the mixing and other handling that is observed on the tape as being consistent with his experiment. Although Yao acknowledged a remote possibility that he could have mistakenly handled Chapman's flasks, he maintained that the flasks that he is observed handling and mixing on the tape were his own. He could give no explanation, however, as to why the tape showed no two-liter flasks in the shaker from its inception at about 12:40 p.m. on Friday through the time when Chapman's assistant first placed four two-liter flasks in the shaker after 6:00 a.m. on Saturday. Yao claimed that he simply failed to observe the absence of his flasks during his Friday evening visit to the shaker because he was concentrating on the culture tubes which he handled. Yao did testify, however, that he was under considerable stress on the day in question because of the illness of one of his assistants, and because of some difficulties at home involving the health of his mother and his child.

¶ 14. The CFRR unanimously found that Yao's explanations were implausible and that he intentionally interfered with Chapman's experiments. Accordingly the committee recommended to the Board of Regents that Yao be dismissed from his position for misconduct. The board accepted the committee's findings and recommendation and ordered Yao dismissed. Yao petitioned the circuit court for review under Wis. Stat. ch. 227, and the circuit court affirmed the Board of Regents' action. Yao appeals the circuit court's order.

ANALYSIS

¶ 15. Yao claims that the board should have disallowed the December 4-5 videotape evidence because of Chapman's mishandling of the tapes and the resultant gaps in tape coverage for the weekend in question. He also claims the board erred in finding that he intentionally interfered with Chapman's experiment. Specifically, Yao contends that the board ignored his expert's testimony that it would be impossible for Yao's actions as shown on the videotape to have caused the result Chapman obtained, that the board improperly discounted Yao's explanation of his actions shown on the tape, and that it did not address alleged contradictions between the tape and the testimony of one of Chapman's students.

¶ 16. Even though the appeal before us is of the circuit court's order, we independently review the board's action. Coe v. Board of Regents, 140 Wis. 2d 261, 268, 409 N.W.2d 166 (Ct. App. 1987). We address the videotape issue first. The board and CFRR both rejected Yao's challenge to the videotape evidence.

¶ 17. Wisconsin Stat. § 227.45(1) provides that in administrative "contested cases," an agency is not "bound by common law or statutory rules of evidence." The statute directs agencies to "admit all testimony having reasonable probative value, but [to] exclude immaterial, irrelevant or unduly repetitious testimony." Id. Furthermore, "[b]asic principles of relevancy, materiality and probative force shall govern the proof of all questions of fact." Id. If in our review we conclude "that either the fairness of the proceedings or the correctness of the action has been impaired by a material error in procedure," we are to remand the case to the board for further action. Wis. Stat. § 227.57(4).

¶ 18. Yao claims that had significant portions of the December 4-6,1998 tapes not been taped over (and thus erased), "they would have contained evidence that would have exonerated him." He claims that the university's case against him benefited from "its own spoliation of evidence," and that standards applicable to spoliation in civil litigation should govern the. instant proceedings. Yao acknowledges that "there do not appear to be any Wisconsin cases applying the spoliation rule in the administrative law setting," but he invites us to apply the holding of Sentry Insurance v. Royal Insurance Co., 196 Wis. 2d 907, 539 N.W.2d 911 (Ct. App. 1995) to the present facts. We concluded in Sentry that "intentional and negligent conduct" by a party in a civil suit that resulted in the failure to preserve crucial evidence was a sufficient basis for a court to impose the sanction of disallowing that party from introducing evidence relating to the destroyed item. Id. at 918-19 ("There is a duty on a party to preserve evidence essential to the claim being litigated.").

¶ 19. We reject Yao's arguments for several reasons. First, as we have noted, "common law or statutory rules of evidence" do not apply in administrative proceedings. Wis. Stat. § 227.45(1). Thus, a "spoliation rule" developed and applied in case law involving civil litigation does not necessarily govern the outcome here.

¶ 20. Second, whether to impose sanctions, such as disallowing certain evidence or testimony because a party has lost or destroyed evidence, is a discretionary decision on the part of the trial court, or in this case, the fact-finding agency. See Garfoot v. Fireman's Fund Ins. Co., 228 Wis. 2d 707, 717, 599 N.W.2d 411 (Ct. App. 1999). Thus, even if the board might properly have excluded the tapes on the grounds Yao asserts (as we concluded in Sentry a trial court may do), that does not mean that the board was required to impose that sanction. We read Wis. Stat. § 227.45 as granting an administrative fact finder at least as much discretion as a circuit court in ruling on evidentiary issues, and given that it is not bound by formal rules of evidence, we conclude that an administrative body enjoys even wider latitude than a court in admitting and considering proffered evidence.

¶ 21. Most importantly, however, we conclude that our holdings in Sentry and Garfoot are simply inapplicable to the present facts. In both cases, preexisting physical evidence was altered or destroyed by a party to litigation (or by an expert retained by a party) at a time when litigation against identified persons or entities was imminent, or at least likely. The importance of preserving the evidence in the two cases, and the interest of an adverse party in examining it, was or should have been obvious to the sanctioned party.

¶ 22. Here, Yao "does not dispute the CFRR's finding that the tapes were not erased in an effort to affect the outcome of the case." The gaps in the videotaping for the weekend of December 4-6, 1998, came about during Chapman's investigation of suspicious happenings in his laboratory, before the university had taken any steps to dismiss Yao, and indeed, before Yao (or anyone) had even been identified as a likely suspect in the tampering. In short, unlike the refrigerator in Sentry and the gas piping in Garfoot, both of which were altered or destroyed at a time when the interest of others in preserving the items was apparent, the tapes in this case came into being only as a result of Chapman's information-gathering efforts. The gaps in coverage for the weekend in question occurred because it initially appeared as though nothing of importance had been detected. We conclude the cases on which Yao relies do not support sanctioning the university simply because Chapman did not gather all of the information he might have.

¶ 23. Chapman's video surveillance and tape handling procedures could certainly have been better, in that he should perhaps have preserved longer continuous sequences of videotapes. But, the fact that the tapes are an incomplete record of events goes to their weight and credibility, not to whether the university should be sanctioned in the dismissal proceedings for a poorly conducted video surveillance. Yao argues here, as he did before the board, that the missing tape segments would have shown him placing two-liter flasks in the shaker on Friday, may have shown someone removing Yao's flasks, and would have confirmed that the flasks Yao manipulated Saturday morning were his and not Chapman's. These arguments serve to diminish the impact of the videotapes in supporting the university's claims, but they do not deprive the tapes of all probative value. The tapes show what they show, neither more nor less, and we conclude that the board did not err in considering them in arriving at its findings of fact.

¶ 24. We next address Yao's challenge to the sufficiency of the evidence to sustain the board's finding that Yao engaged in misconduct by intentionally manipulating his colleague's laboratory materials. Wisconsin Stat. § 227.57(6) directs a reviewing court to proceed as follows in reviewing agency fact-finding:

If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record.

Given the statutory prohibition against a court substituting its judgment for that of an agency in the weighing of evidence on disputed facts, the standard of review mandates a considerable degree of judicial deference to the primacy of the agency's role as fact finder. Yao, however, relies on a pair of fifty-year-old precedents in an attempt to convince us to take a more rigorous approach.

¶ 25. Yao first notes that Wisconsin's Administrative Procedure Act, as originally enacted, was based on federal administrative law. He then quotes extensively from the analysis in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951), where the Supreme Court considered the standard for judicial review of factual findings under the Federal Administrative Procedures and Taft-Hartley Acts. Both statutes contained similar language regarding judicial review. They required a reviewing court to set aside an agency ruling if it is based on findings which are "unsupported by substantial evidence," and "[i]n making the foregoing determinations the court shall review the whole record." Id. at 482 n.15.

¶ 26. The Court noted some conflict among the circuits regarding application of the "substantiality of evidence" test, and it ultimately concluded that Congress's inclusion of the direction to "consider the whole record" was a significant signal to the courts that they must do more than simply rubber stamp an agency's factual findings. Id. at 487-90. It then endorsed the following standard for judicial review of administrative findings:

Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which in and of itself justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record.

Id. at 487-88. Later in the opinion the Court says this:

Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.

Id. at 488.

¶ 27. For the link between the Universal Camera Corp. holding and Wis. Stat. ch. 227, Yao relies on Motor Transport Co. v. PSC, 263 Wis. 31, 56 N.W.2d 548 (1953). The supreme court in Motor Transport Co. quotes the above passages and states, "We believe that the principles enunciated by the U.S. Supreme Court in the Universal Camera Corp. case are sound and are applicable to the proper interpretation of the phrase 'substantial evidence in view of the entire record' in sec. 227.20(l)(d), Stats." Id. at 45 (emphasis by supreme court). The court then concludes that, given the legislature's adoption of the quoted language in 1943, "it is no longer proper for a court in reviewing the findings of an administrative agency to affirm such findings by merely considering isolated testimony, which if standing alone, would be sufficient to sustain the findings, without considering other testimony in the record which impeaches the same." Id.

¶ 28. The flaw in Yao's argument that Universal Camera Corp. and Motor Transport Co. must govern our present review is that the language of the relevant Wisconsin statute changed in 1976. In Laws of 1975, ch. 414, the legislature repealed the former Wis. Stat. § 227.20(1) and replaced it with the newly created § 227.20(6) (since renumbered as Wis. Stat. § 227.57(6)), which reads: "The court shall... set aside agency action... if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record." Missing from the revised statute is any explicit direction that a court must "review the whole record," or that it must determine the existence of "substantial evidence in view of the entire record," which were the words in the federal and state enactments that the Universal Camera Corp. and Motor Transport Co. courts emphasized in reaching their conclusions. Moreover, the 1975 legislature added the prohibition against a court substituting its judgment for that of the agency regarding the weight of evidence on disputed findings of fact, language which is not found in the predecessor statute. See Wis. Stat. § 227.20 (1973-74).

¶ 29. The new language directs a court, when entertaining a challenge to an agency's finding of fact, to determine if it is "supported by substantial evidence in the record." The language, especially when coupled with the prohibition against substitution of judgment regarding weight of the evidence, plainly suggests something different than judicial consideration of "other testimony in the record which impeaches" the evidence supporting the agency's finding, the standard embraced in Motor Transport Co. based on the former statutory language. Motor Transport Co., 263 Wis. at 45. Our conclusion in this regard is bolstered by the fact that the Motor Transport Co. explication of "substantial evidence" has been cited as authority in a published Wisconsin appellate opinion only once since the 1976 revisions to Wis. Stat. ch. 227. Discussions of the need to "view the entire record as submitted" have also disappeared, not only from the statute, but from judicial discussions of the proper standard of review under Wis. Stat. § 227.57(6).

¶ 30. Instead, the standard which has evolved in Wisconsin case law since the enactment of the present language of Wis. Stat. § 227.57(6) was very recently summarized by the supreme court as follows:

The test is whether, taking into account all of the evidence in the record, " 'reasonable minds could arrive at the same conclusion as the agency.1" The findings of an administrative agency do not even need to reflect a preponderance of the evidence as long as the agency's conclusions are reasonable. If the factual findings of the administrative body are reasonable, they will be upheld.

Kitten v. DWD, 2002 WI 54, ¶ 5, 252 Wis. 2d 561, 644 N.W.2d 649 (citations omitted). We conclude that the standard enunciated in Kitten governs our review, and for the reasons we have noted, the discussions in Universal Camera Corp. and Motor Transport Co. premised on different legislative language do not.

¶ 31. We thus consider whether "reasonable minds" could conclude, "taking into account all of the evidence in the record" before the board, that Professor Yao engaged in misconduct on December 4-5, 1998, by intentionally tampering with a colleague's laboratory materials. Kitten, 2002 WI 54 at ¶ 5. Yao does not claim that there is no evidence in the record to support such a finding, nor does he argue that the evidence supporting the finding (the videotapes and the testimony of Chapman and his assistants) was incredible as a matter of law. Rather, Yao's complaint is that the board failed to "deal with" his own and his expert's exculpatory testimony, and with what he claims is a contradiction between the tape evidence and the testimony of a Chapman assistant. In addition to relying on the outdated Universal Camera Corp./Motor Transport Co. analyses, he asserts that these failings render the board's finding "unreasonable," which we agree is the proper articulation of his challenge under the applicable standard of review.

¶ 32. We have reviewed the testimony and exhibits presented to the CFRR during its five-day hearing on the university's allegations against Yao, including portions of the videotapes that were shown to the committee. We have no difficulty concluding that there was "substantial evidence" before the committee to support its finding that Yao engaged in the misconduct the university alleged on December 4-5,1998. On the basis of the testimony of Chapman and his students, reasonable minds could readily conclude that Yao's activities as shown on the December 4-5 videotape represented unauthorized and inappropriate handling of Chapman laboratory materials, which interfered with Chapman's research objectives.

¶ 33. Furthermore, Yao's failure to justify his actions as mistaken or inadvertent permitted the board to reasonably infer that Yao intentionally interfered with Chapman's work. The board found that "the explanation offered by Dr. Yao for the manipulation of his colleague's materials is implausible," citing the following evidence:

31. The CFRR finds that the sequence of events described by Yao is inconsistent with the reasonable inferences to be drawn from the evidence presented. The small overnight tubes handled by Dr. Yao at 7:00 p.m. on Friday had not been there earlier in the day, and had, in. fact been placed there by [a Chapman student] at approximately 5 p.m. For Dr. Yao to have placed these tubes in the shaker after the video recording ends at noon, and for the shaker nonetheless to be empty at the time the video recording began again at 12:41 p.m., would require that someone removed his tubes in that 40-minute period. In addition, the large two-liter flasks that Dr. Yao testified that he had mixed on Saturday morning were not present in the shaker at all for the 18 hours from 12:40 p.m. December 4 until 6:00 a.m. the following day. The two-liter flasks depicted on Tape #2 were not placed in the shaker by Dr. Yao, but rather by Dr. Chapman's staff members. It is unlikely that — if Dr. Yao had placed his own tubes and flasks in the shaker earlier on Friday — he would not have noticed their absence when he looked into the shaker at 7:00 p.m. that evening. It is further unlikely that he would not have recognized Dr. Chapman's distinctive, stainless-steel capped overnight tubes. In addition, his laboratory notebook does not support his explanation of the experiments he testified he was doing on December 4 and 5, and his actions in mixing the contents appear inconsistent with customary care and practice in this area of research.

¶ 34. We now consider whether the board's findings are rendered unreasonable because of the failings Yao cites. His primary complaint is that the board did not discuss in its written findings the testimony of Dr. Don Cleveland, a cell biologist who had supervised Yao's postdoctoral work at the University of California. In addition to attesting to Yao's "honesty and integrity," Cleveland was asked for his opinion "whether any of the actions shown by Dr. Yao in the videotaped portions which you saw.. . could have produced" the results Chapman obtained on December 7th, and he replied, "[i]t doesn't seem so, no." Cleveland went on to explain that since Yao is seen mixing together the contents of only two of the four flasks, an even concentration of Chapman's desired proteins should not have occurred. Thus, according to Yao, the board erred in finding that Chapman's December 7th results "were consistent with the mixing of tubes and flasks as shown on the videotape, based upon their contents as reported by" Chapman's students.

¶ 35. We disagree that Dr. Cleveland's testimony exposed a fatal flaw in the university's case against Yao, or that the board could not reasonably conclude that the Chapman results "were consistent" with what the December 4-5 tape revealed. We first note that Dr. Cleveland was far from an impartial witness, given that he acknowledged he had a high regard for Yao and that he questioned the UW's pursuit of these allegations. Moreover, his testimony was not altogether unequivocal in support of Yao. Cleveland acknowledged that one researcher's unauthorized handling of another's laboratory materials, as Yao is shown doing on the tape, would be "some cause for concern." Cleveland also responded that had he, like Yao, visited the shaker on Friday evening and found it did not contain his flasks and marked tubes, he would have been "surprised, bewildered." Finally, Cleveland also responded affirmatively to questions from a CFRR member, who posited an alternative explanation of the result Chapman obtained on December 7th which included, as one step, the mixing of two flasks as Yao was observed doing on the tape.

¶ 36. Moreover, we note that Chapman testified in rebuttal that his December 7th laboratory result was consistent with Yao's actions on the videotape if: (1) labels were switched on the two flasks which Yao is not seen to mix but which he took off-camera for about eight seconds; or (2) labels had been switched on the overnight culture tubes before their contents were transferred to the flasks. In short, we conclude that Dr. Cleveland's testimony is not the smoking gun Yao would have it be, and that the testimony does not render the board's finding unreasonable.

¶ 37. Next, Yao argues that the board improperly discounted, or even "ignored," his testimony that he was working on an experiment of his own on December 4-5, 1998. We agree with the board, however, that the fact that Yao may have had an experiment of his own in progress that weekend does not diminish the reasonableness of the board's conclusions regarding the implausibility of his explanation of his actions as observed on the tape. That is, the board adequately expressed its reasons for not accepting Yao's explanation, none of which are diminished by the fact that Yao may truly have also had an experiment of his own in progress. The board, based on the videotapes and the testimony from Chapman and his assistants, rejected Yao's assertion that the tape showed him handling and mixing his own materials, not Chapman's.

¶ 38. Finally, Yao argues that the tape demonstrates that the flasks Chapman's student placed in the shaker at around 6:00 a.m. Saturday, contrary to his testimony, were actually Yao's two-liter flasks, and that the board failed to discuss this "indisputable videotape evidence." Yao asserts that this student held a grudge against him for not sponsoring the student for employment, and Yao not so obliquely suggests that this student was actually the laboratory saboteur.

¶ 39. We note first that the student's actions on the videotape are not necessarily in conflict with his testimony that the four flasks he placed in the common shaker contained cultures from four of the overnight tubes involved in Chapman's experiments. The fact that this student also transferred cultures to a number of other flasks, to which he also testified, and that he is seen on the tape taking other flasks elsewhere, does not render incredible his testimony that the four flasks he placed in the common shaker were Chapman's.

¶ 40. In order to accept Yao's assertion that the tapes more logically support his theory of what happened, we would first have to accept Yao's theory, which the board rejected. Although the tapes do not rule out Yao's version of events, his is not the more logical version as he asserts, in that it fails to explain why Yao did not detect the absence of his flasks from the shaker when he twice visited it on Friday evening, nor why Chapman's student would return to "induce" the four flasks in the common shaker if he knew that they were in fact not Chapman's flasks but Yao's. Finally, we note that Yao, in neither his opening statement nor his closing argument before the CFRR, articulated his theory that the student's handling of flasks as shown on the Saturday morning videotapes support Yao's claim that he handled his own and not Chapman's flasks. It is thus neither surprising nor unreasonable for the committee and the board not to have discussed this alternative view of the evidence.

¶ 41. In closing, we note that we do not underestimate the devastating impact the board's findings and decision will have on what Yao several times refers to as his promising career as a scientist, researcher and university professor. The serious consequences of a "just cause" dismissal are one reason why university regulations prescribe a rigorous process when accusations such as those against Yao are made. The board had before it the unanimous findings and recommendation of a faculty committee composed of nine of Yao's faculty peers, the CFRR, which had conducted a lengthy evi-dentiary inquiry into the university's allegations over a five-day period. During these proceedings, Yao was represented by two able and experienced litigators, who also argued Yao's case before a committee of the board.

¶ 42. The CFRR, the board committee and ultimately the board itself, considered Yao's legal and factual challenges to the university's proposed dismissal for cause. Unfortunately for Dr. Yao, these bodies found his explanations incredible, and the videotapes and testimony of Chapman and his assistants convincing, with respect to Yao's actions on December 4 and 5,1998. Although we accept Yao's assertion that the board's finding that he engaged in misconduct is at odds with his past record of achievement and integrity, we cannot conclude on this record that the board's finding "is not supported by substantial evidence in the record." Wis. Stat. § 227.57(6). Accordingly, we affirm the circuit court's order affirming the board's action.

By the Court. — Order affirmed.

       "The CFRR finds that the sequence of events described by Yao is inconsistent with the reasonable inferences to be drawn from the evidence presented."

       The Board of Regents, after considering Yao's "exceptions" and hearing oral argument on his behalf, "voted to adopt the recommended findings and decision of the CFRR." For convenience, we will most often refer only to the decision of "the board," which incorporated the CFRR's "Report, Findings and Recommendations" and is the decision under review, even though several of Yao's challenges are to matters found or decided by the CFRR.

       The supreme court in Bucyrus-Erie Co. v. DILHR, 90 Wis. 2d 408, 280 N.W.2d 142 (1979), applying the standard for review of agency factual findings under Wis. Stat. § 227.20(6) (1977-78), affirmed a department finding challenged by the employer as having been refuted by the testimony of its medical expert. Id. at 424-25. The court cited Motor Transport Co. for the proposition that a reviewing court "must, consider any impeaching or rebutting testimony in determining whether substantial evidence exists to support the agency's finding." Id. at 418-19. The court also noted, however, that " '[slubstantial evidence is not equated with preponderance of the evidence,'" and where there is substantial evidence supporting two conflicting views," 'it is for the agency to determine which view of the evidence it wishes to accept.'" Id. at 418 (quoting Robertson Transp. Co. v. PSC, 39 Wis. 2d 653, 658, 159 N.W.2d 636 (1968). It also explained that a reviewing court "cannot evaluate the credibility or weight of the evidence." Id.

      The only other post-1976 citations to Motor Transport Co. do not relate to the standard of review for agency findings of fact. See State v. O'Connor, 77 Wis. 2d 261, 280 n.6, 252 N.W.2d 671 (1977) (reliance on contemporaneous law review articles by sponsors or drafters of legislation); State v. Yellow Freight Sys., Inc., 96 Wis. 2d 484, 490, 292 N.W.2d 361 (Ct. App. 1980) (purpose of statutory regulation of motor carriers), aff'd, 101 Wis. 2d 142, 303 N.W.2d 834 (1981).

       Because our review is governed by Wis. Stat. § 227.57(6) and Wisconsin precedents applying the standard it establishes, Yao's rebanee on more recent federal cases reviewing administrative actions of federal agencies is also misplaced. See Allentown Mack Sales & Serv., Inc. v. National Labor Relations Bd., 522 U.S. 359 (1998); Godbey v. Apfel, 238 F.3d 803 (7th Cir. 2000).

       As we have discussed, with one exception (see footnote 3), Wisconsin courts have not cited the Motor Transport Co. standard since the 1976 revisions to Wis. Stat. ch. 227, and we have concluded that the plain language of § 227.57(6) does not require a court to engage in extensive consideration of evidence which would support a finding other than that made by an administrative agency. Thus, it is not necessary that we consult the legislative history of Laws of 1975, ch. 414, in an attempt to ascertain whether the legislature intended that there be a change in the way Wisconsin courts review an agency's factual findings. Nonetheless, we note that the revisions were introduced as 1975 Assembly Bill 163, which originated with the Judicial Council. The Council's note regarding the changes made to what was then § 227.20 includes the following explanation:
      Section 227.20(2) is intended to continue the existing presumption of regularity of administrative proceedings and makes clear that administrative decisions must be affirmed unless some reason is found in subs. (3) to (9) to do otherwise.

      Representatives of agencies expressed the view that words such as "arbitrary or capricious" and "unsupported by substantial evidence in view of the entire record as submitted" which appear in the present act.. . are clearly understood and precisely interpreted by the courts. While agency counsel may believe this to be the case, it is not as readily apparent to many of the members of the council, especially practitioners. The language proposed here is an effort to state more clearly what seems to be intended in the more traditional language. Further, the language is more analytical in clarifying what the approach of a reviewing court should be and expresses in a step by step manner the process of determining the appropriate corrective action if any is warranted.
      1975 A.B. 163, Judicial Council Note following section 25 (emphasis added). We find nothing in this explanation that detracts from our conclusion that, under Wis. Stat. § 227.57(6), a court must begin with an agency's finding of fact and then consult the record of the proceedings to see if it contains substantial evidence to support it, while keeping in mind that the court must not "substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact." Nothing in the language of the statute or the explanatory note which accompanied its adoption evinces a legislative intent to carry forward the Motor Transport Co. direction that a court must expressly consider evidence in the administrative record which "impeaches" the agency's finding.

       Although the board did not find a motive for Yao's improper activities, the record suggests several possibilities. The first is that Yao acted out of jealousy and a sense of competition with his colleague Chapman, which Yao denied. A second possible motive is Yao's pique over Chapman's continued use of the common shaker, which Yao apparently believed was "his," having so labeled it and having referred to others' use of it as "unfriendly." Finally, there is also a suggestion in the record that Yao was under various professional and domestic pressures at the time of the incident, and that this may have affected his judgment or perceptions. Motive, however, was not a necessary element of the university's misconduct allegations, and we conclude the board's finding of misconduct was reasonable even if the university failed to definitely establish Yao's motive for tampering with Chapman's materials.


source: Caselaw Access Project

author: VERGERONT, PJ.

license: Public Domain

text:
    In re the Estate of June Ann Christopherson, Deceased: Lori Bell, Pauline Devault, Joan Jameson, Mike Kosobud, Debra Lawsing, and Susan Walter, Appellants-Cross-Respondents, v. Mae Neugart, Individually and as Personal Representative of the Estate of June Ann Christopherson, Respondent-Cross-Appellant.
    Court of Appeals

      No. 01-2533.

      Submitted on briefs April 17, 2002.

    Decided June 27, 2002.

    2002 WI App 180
    (Also reported in 650 N.W.2d 52.)

      On behalf of the appellants-cross-respondents, the cause was submitted on the briefs oí Jim Schernecker of Action Law, S.C., Madison.
    On behalf of the respondent-cross-appellant Mae Neugart, individually, the cause was submitted on the briefs of Fred D. Hollenbeck of Curran, Hollenbeck & Orton, S.C., Mauston.
    On behalf of the respondent Mae Neugart, personal representative of the estate, the cause was submitted on the brief of Charles A. Pollex of Hollman & Pollex Law Offices, L.L.P., Friendship.
    Before Vergeront, PJ., Roggensack and Lundsten, JJ.
   VERGERONT, PJ.

¶ 1. This appeal arises out of a dispute concerning two bank accounts of the deceased, June Ann Christopherson. The bank accounts were in the names of Christopherson and Mae Neugart, Christopherson's sister and personal representative of the estate. Joan Jameson and Leonard Kosobud, children of deceased siblings of Christopherson, sought to prove that the accounts were not true joint accounts and to have Neugart removed as personal representative. Jameson appeals the circuit court's decision that the bank accounts were true joint tenancies with right of survivorship to Neugart. She contends the court erred in interpreting Wis. Stat. § 885.16 (1999-2000), the dead man's statute, to prevent her from calling Neugart adversely to testify on the creation of the joint accounts, and erred in excluding Neugart's adverse deposition testimony. Jameson also challenges the circuit court's decision allowing Neugart to continue to act as personal representative while the dispute over the accounts was being resolved, and its decision allowing the attorney representing Neugart in her capacity as personal representative to collect his fees from the estate. Neugart, as an individual, cross-appeals, contending that the attorney fees she incurred to protect her personal interests in the bank accounts should be paid by the estate.

¶ 2. We conclude: (1) Wisconsin Stat. § 885.16 does not bar Jameson from calling Neugart adversely to testify to the communication and transaction with Christopherson concerning the bank accounts; (2) because Neugart, as an individual, is a party to the dispute over the bank accounts, her deposition may be used at the hearing on that issue for any purpose as provided in Wis. Stat. § 804.07(l)(b); (3) the court did not erroneously exercise its discretion in declining to remove Neugart as personal representative; (4) the court properly ordered that the estate pay the reasonable attorney fees Neugart incurred in successfully defending against Jameson's motion to remove her as personal representative; (5) the fees for Attorney Charles Pollex's services in defending against Jameson's claim of forgery on the bank account signature cards were not in the estate's interest and therefore those fees may not be paid by the estate; and (6) on the cross-appeal, the issue of the attorney fees Neugart incurred as an individual to protect her personal interest in the bank accounts will be reconsidered upon remand. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

¶ 3. Christopherson died intestate on January 31, 1999, at the age of seventy-nine, after being admitted to the hospital two days earlier. The signature cards establishing the bank accounts as joint accounts were dated January 28, 1999.

¶ 4. Jameson consented to Neugart's appointment as personal representative and to informal administration, and Neugart retained Attorney Pollex. Neugart, as personal representative, filed an inventory stating the net value of Christopherson's property subject to administration was $293,402.55, and the net value of the property not subject to administration was $70,586.70, consisting of the two bank accounts, one of $70,226.23 and the other of $360.47. The accounts were described as jointly owned with Neugart.

¶ 5. In August 1999, after the bank notified Neugart that it would not release funds in the accounts without a court order directing to whom the bank should pay them, Neugart, as personal representative, filed a demand for formal proceedings on that issue under Wis. Stat. § 865.10. About the same time, Attorney Fred Hollenbeck filed a notice stating that he had been retained by Neugart. A status/scheduling conference was eventually held on March 2, 2000, by which time Jameson had retained counsel. A hearing was set for July 7, 2000, on Jameson's contention that the signatures on the cards establishing the accounts as joint accounts were not Christopherson's signatures but were forged.

¶ 6. On April 28, 2000, Jameson filed a motion to stay the July 7 hearing and to amend the scheduling order. The accompanying affidavit of Jameson's counsel averred that Neugart had refused to provide handwriting exemplars, and that Jameson had filed a separate action against Neugart in which she sought to have Neugart removed as personal representative because of Neugart's failure to collect the joint bank account funds for the estate. The motion asked for an order staying this case "pending disposition of the material issues herein, including whether Mae Neugart should be removed as personal representative." The court denied the motion for a stay, concluding there was no reason not to proceed with the July 7 hearing as scheduled. The court also took up the issue of removing Neugart as personal representative and concluded it was not appropriate to remove her as personal representative at that point because the accounts in dispute were in control of the bank. The court added that if Jameson prevailed on her claim regarding the accounts, the question of Neugart's appointment as personal representative could be considered then.

¶ 7. On June 27, 2000, Jameson filed a motion to remove Neugart as personal representative of the estate, asserting her failure to collect the two joint accounts and other property for the estate, and raising various issues concerning the disposition of certain real property of the estate. The hearing on July 7 went ahead without a ruling on this motion. Jameson presented an expert who testified that Christopherson's signatures on the cards were forged. Attorney Pollex appeared on behalf of the estate; Attorney Hollenbeck appeared on behalf of Neugart; and each presented an expert who testified that the signature cards were signed by Christopherson.

¶ 8. During the hearing Jameson attempted to introduce as evidence Neugart's deposition, which was taken adversely. Attorney Hollenbeck objected, asserting that none of the factors in Wis. Stat. § 804.07(1) applied and also that Neugart was "prohibited from testifying in connection with the Deadman's Statute." The court ruled the deposition was not admissible, apparently relying on Wis. Stat. § 804.07(1) rather than the dead man's statute. At the conclusion of the hearing, the court determined that Christopherson had signed the signature cards. The issue whether the account was one of convenience rather than a true joint tenancy was to be determined at a later time — which turned out to be July 10, 2001.

¶ 9. In the meantime, on December 1, 2000, Neugart, as personal representative, filed a motion for the appointment of a special administrator. The basis for this motion, set forth in the accompanying affidavit of Attorney Pollex, was that Neugart had a conflict of interest due to the dispute over ownership of the two bank accounts, "which disqualifies [her] from acting as personal representative of the estate during the resolution of this particular issue." At the hearing on this motion on April 25, 2001, Neugart, individually, represented by Attorney Hollenbeck, opposed the motion. Jameson supported the motion. The court determined that a conflict of interest existed and appointed a special administrator. However, at Attorney Pollex's suggestion, and without an objection from Jameson's counsel, the court limited the appointment to the assets of the disputed bank accounts, allowing Neugart to remain the personal representative of the estate for all other purposes until further order of the court.

¶ 10. At the July 10, 2001 hearing, the issues before the court were: (1) whether the joint accounts were for convenience only or were true joint accounts; (2) whether Neugart should be removed as personal representative of the estate; and (3) whether Neugart's attorney fees should be paid by the estate. The special administrator was present, but had informed the court and counsel that he was not going to take an active role on the contested issues.

¶ 11. On the issue of the bank accounts, Attorney Hollenbeck represented Neugart as an individual. Jameson wished to call Neugart adversely to testify concerning her conversation with Christopherson and to have her deposition admitted into evidence. However, Neugart had sought and obtained a pretrial ruling that, based on the dead man's statute, Wis. Stat. § 885.16, no party with an interest in the estate could question or elicit any testimony from Neugart regarding the communication or transaction between Chris-topherson and her. The court also refused to admit Neugart's deposition testimony into evidence, based on its prior ruling that her deposition testimony was inadmissible. Jameson had no other evidence. The court therefore determined there was no proof that the accounts were for convenience only and thus no evidence to rebut the presumption that they were joint accounts with the right of survivorship.

¶ 12. On the issue of whether Neugart should be removed as personal representative, Attorney Pollex represented Neugart as personal representative. The court heard testimony regarding Neugart's handling of various assets of the estate and the disposition of real estate held in the estate. It determined that Neugart should not be removed as personal representative.

¶ 13. With respect to attorney fees, the court ordered Jameson to pay her own attorney's fees, Neugart to pay Attorney Hollenbeck's fees, and the estate to pay "all fees, costs and disbursements incurred by Attorney Pollex in connection with this matter."

DISCUSSION

Wis. Stat. § 885.16, the Dead Man's Statute

¶ 14. Jameson asks that we reverse the court's determination that the accounts were true joint accounts with the right of survivorship because, she contends, the circuit court erred in construing and applying the dead man's statute. She argues that Wis. Stat. § 885.16 may not be invoked defensively to prevent a party's own admissions from coming into evidence, but only to prevent someone from testifying in his or her own behalf regarding transactions or conversations with*,a deceased person. According to Jameson, the purpose of the statute is to protect persons with interests opposed to the person who has transacted or communicated with the deceased party, not to protect the person with the opportunity to misrepresent that communication or transaction.

¶ 15. A circuit court's decision to admit or exclude evidence is a discretionary determination, and we affirm discretionary decisions if they have a reasonable basis and apply the correct law to the facts of record. Hunzinger Constr. Co. v. Granite Ress. Corp., 196 Wis. 2d 327, 332, 538 N.W.2d 804 (Ct. App. 1995). However, the circuit court's interpretation and application of a statute to a given set of facts presents a question of law, which we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997).

¶ 16. Wisconsin Stat. § 885.16 provides in relevant part:

No party or person in the party's or person's own behalf or interest, and no person from, through, or under whom a party derives the party's interest or title, shall he examined as a witness in respect to any transaction or communication by the party or person personally with a deceased ... person in any civil action or proceeding, in which the opposite party derives his or her title or sustains his or her liability to the cause of action from, through or under such deceased . .. person, .. . unless such opposite party shall first, in his or her own behalf, introduce testimony of himself or herself or some other person concerning such transaction or communication, and then only in respect to such transaction or communication of which testimony is so given or in respect to matters to which such testimony relates.

¶ 17. Although the wording of the statute is cumbersome, the core meaning is that it disqualifies a witness to a transaction or communication with a decedent from testifying about that transaction or communication in his or her favor, or in the favor of any party to the case claiming under the witness. Tyznik v. Junak, 17 Wis. 2d 486, 488, 117 N.W.2d 601 (1962). A long line of cases establishes that the statute does not preclude an opposing party from calling adversely a witness to a communication or transaction with a decedent. See, e.g., In re Will of Hoppe, 102 Wis. 54, 55, 78 N.W. 183 (1899) (decedent's son, who received no bequest under will, was not incompetent to testify under statute because he was called by proponents of will, the adverse party, and they were only ones who had any right to object to his competency); Yungwirth v. Schultz, 253 Wis. 86, 90, 33 N.W.2d 169 (1948) (circuit court erred in prohibiting party from calling witness to transaction with decedent where party's interest and witness's interest were adverse, and party did not claim under, by or through witness); Nolan v. Standard Fire Ins. Co., 243 Wis. 30, 35, 9 N.W.2d 74 (1943) (testimony of witness which would have benefited examining party would not be in witness's own behalf or interest and, for this reason among others, did not come within statute); Zimdars v. Zimdars, 236 Wis. 484, 487-88, 295 N.W. 675 (1941) (circuit court properly overruled objection based on dead man's statute, among other reasons, because witness was examined adversely by party with opposing interest; examining party did not claim through witness and thus was not testifying in her own behalf or interest); Habrich v. Industrial Comm'n of Wis., 200 Wis. 248, 254, 227 N.W. 877 (1929) (statute prohibits a party from giving testimony in his own behalf or interest; however the testimony of Habrich was not given in his own interest, it was given upon his examination as an adverse party. "It has never been understood that this statute prohibited the examination of an adverse party against his interest."), overruled on other grounds, Scholz v. Industrial Comm'n, 267 Wis. 31, 41a, 65 N.W.2d 1 (1954).

¶ 18. In this case Neugart is neither seeking to testify on her own behalf or interest to the transaction with Christopherson concerning the bank accounts, nor is Jameson a person who derives her interest from Neugart. Therefore, we conclude the statute does not prohibit Neugart's testimony regarding her conversations with Christopherson.

¶ 19. Neugart's position is that she may invoke the statute to prevent herself from being called adversely. However, the phrase in the statute beginning "unless such opposite party..." plainly contemplates that the opposite party — in this case, Jameson — waives the ability to disqualify the witness — in this case, Neugart — by first introducing testimony in her (Jameson's) own behalf concerning the transaction or communication with the decedent. This phrase means that,

if counsel for the opposite party questions the witness as to any part of the transaction or communication with the deceased under circumstances where the witness would be incompetent to so testify if proper objection were made under sec. 885.16, Stats., the benefit of the statute is waived and the door is opened whereby counsel for the party may proceed by further questioning to bring out all details of the particular transaction or communication.

Johnson v. Mielke, 49 Wis. 2d 60, 71, 181 N.W.2d 503 (1970), and cases cited therein; see also Keller Implement Co. v. Eiting, 52 Wis. 2d 460, 467, 190 N.W.2d 508 (1971). This "well-recognized principle," Johnson, 49 Wis. 2d at 71, is flatly inconsistent with Neugart's position that she is disqualified by the statute even if Jameson chooses to question her adversely.

¶ 20. Neugart relies on Johnson for her argument that Jameson may not call her adversely, but we do not read Johnson to support her position. In Johnson, the decedent had changed certain accounts to joint accounts with John Mielke and deeded her house to him, and the estate sought to set aside these transfers. Mielke's position was that he had absolute ownership of these assets; Laura Belisle, Mielke's mother-in-law and half-sister of the decedent, took the position that these assets were given to Mielke for her benefit. When Belisle sought to call Mielke to testify on the decedent's intent with respect to the accounts, the estate objected based on Wis. Stat. § 885.16, and the circuit court did not let Mielke testify. On appeal, Belisle argued that this was error, because Mielke would have testified against his own interest: Belisle stated in her offer of proof that she believed if Mielke testified he would say that the decedent had instructed that the accounts be used for her care and she be permitted to live in the house. Id. at 73-74. The supreme court affirmed. It reasoned that "since [Mielke] is interested in establishing his own case [absolute ownership of the accounts and house], the respondent-executrix should not be denied at least some protection under sec. 885.16, Stats., even though Mielke was being adversely examined by a codefendant." Id. at 74-75.

¶ 21. In Johnson, the estate's interests were in opposition to those of both Mielke and Belisle, and the estate objected to Mielke's testimony. In that three-way dispute, the estate would have lost the protection of the statute from Mielke's self-interested testimony not because it chose to waive that protection, but because a party whose interests were also adverse to those of the estate chose to have Mielke testify. That is not the situation in this case: the estate's interests here are aligned with those of Jameson on the issue of the bank accounts and there is no objection by any party (other than Neugart) to Jameson calling Neugart adversely. Johnson simply does not support the proposition that a witness to a communication or transaction with the decedent may proclaim himself or herself to be incompetent to testify under the statute even if no other party makes that objection.

¶ 22. Neugart also focuses on the definition of "disqualifying interest" used in Johnson, 49 Wis. 2d at 74, and Bethesda Church v. Menning, 72 Wis. 2d 8, 12, 239 N.W.2d 528 (1976). In Johnson and Bethesda Church, the Wisconsin Supreme Court noted, "the true test of the disqualifying interest of the witness is whether he will gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action." Johnson, 49 Wis. 2d at 74; Bethesda Church, 72 Wis. 2d at 12-13. Her interest meets this definition, Neugart contends, and therefore she may not testify. Again, Neugart overlooks the significance of the fact that an opposite party wishes to call her adversely, and no opposite party is objecting to her testifying. There is no question that Neugart has ah interest in the bank accounts such that, if either the estate or Jameson objected in proper form to Neugart's testimony of her communication with Christopherson concerning these accounts, she would be barred from testifying.

¶ 23. We conclude that the circuit court erred in prohibiting Jameson from calling Neugart adversely to examine her on communications and transactions with Christopherson concerning the joint accounts. For the same reasons, Wis. Stat. § 885.16 is not a basis for prohibiting the use of Neugart's deposition at trial.

¶ 24. We recognize the circuit court did not exclude Neugart's deposition because of Wis. Stat. § 885.16, but apparently relied on Wis. Stat. § 804.07(1). However, we conclude the court's application of § 804.07(1) was also in error. Neugart, individually, is a party to the formal proceeding on the issue of the bank accounts, and Jameson is an adverse party in that proceeding. Therefore, under § 804.07(l)(b), Jameson may use Neugart's deposition "for any purpose." Neugart's argument that this does not apply because she is not an "officer, director or managing agent... of a... corporation" overlooks the plain language of that subsection. This subsection applies either to the deposition of a "party or" (emphasis added) to persons having certain relationships to an entity that is a party. Since Neugart belongs to the former category, she need not belong to the latter.

¶ 25. Neugart does not argue that, if the court erred in prohibiting her from testifying and in excluding her deposition, the errors were harmless; and we conclude they were not. Neugart's deposition testimony supports Jameson's position that Christopherson intended only that Neugart be able to handle her accounts while she was alive. Since Neugart prevailed because there was no evidence to overcome the statutory presumption, there is a reasonable probability that the outcome would have been different had the court heard Neugart's deposition testimony, or had Neugart testified consistent with that testimony at the hearing. See Wis. Stat. § 805.18(2); Nowatske v. Osterloh, 201 Wis. 2d 497, 506-07, 549 N.W.2d 256 (Ct. App. 1996) (evidentiary error requires reversal only if result, within reasonable probabilities, might have been more favorable to the complaining party had the error not occurred).

Failure to Remove Neugart as Personal Representative

¶ 26. Jameson argues that Neugart should have ceased acting as the personal representative of the estate in August 1999 when she filed the request for formal proceedings on the issue of the bank accounts, and there was no reasonable explanation for her failing to acknowledge that conflict of interest until December 1, 2000, when she requested a special administrator. The circuit court, according to Jameson, erroneously exercised its discretion in not removing Neugart as personal representative because of this conflict. As a result, Jameson contends, she had to hire counsel to advance the interest of the estate in asserting ownership of the bank accounts. Jameson asserts she is entitled to an order from this circuit court removing Neugart as personal representative "nunc pro tunc" August 1999.

¶ 27. Neugart, as personal representative for the estate, responds that the court did not erroneously exercise its discretion in failing to remove her as personal representative, but that, even if the court did, its error was harmless.

¶ 28. Wisconsin Stat. § 857.15 provides:

When personal representative removed, resigns. The judge may accept the written resignation of any personal representative. When a personal representative becomes incompetent, disqualified, unsuitable, incapable of discharging the personal representative's duties or is a nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and caused such appointment to be filed with the court, the court shall remove the personal representative. When any personal representative has failed to perform any duty imposed by law or by any lawful order of the court or has ceased to be a resident of the state, the court may remove the personal representative. When grounds for removal appear to exist, the court on its own motion or on the petition of any person interested shall order the personal representative to appear and show cause why the personal representative should not be removed.

Whether to remove a personal representative for these statutory reasons is a matter within the court's discretion. Holzhauer v. Zartner, 183 Wis. 506, 515, 198 N.W. 363 (1924).

¶ 29. We agree with Jameson that Neugart's conflict of interest between her personal interest in ownership of the bank accounts and her interest as personal representative in securing all property potentially belonging to Christopherson for the estate was apparent from at least August 1999. Neugart, as personal representative, presumably recognized this, because at that time she filed the request for formal proceedings on this issue. While it may have been preferable for the court to remove her as personal representative, at least pending a resolution of the issue of the ownership of the joint accounts, Jameson has not persuaded us that the court's failure to do so was an erroneous exercise of discretion.

¶ 30. First, the demand for formal proceedings that Neugart, as personal representative, filed in August 1999 specifically provided that the filing of that document "suspends the powers of the personal representative as to these matters until reinstated by the court." See Wis. Stat. § 865.03(2). When the court declined to remove her as personal representative in response to Jameson's April 28, 2000 motion for stay, the court reasoned that the accounts were in the custody of the bank, so there was no need to act to protect them while the issue of their ownership was being resolved. This reasoning is supported by the record: there is no evidence that the accounts were in any way jeopardized by Neugart continuing to act as personal representative.

¶ 31. Second, at the April 2001 hearing on the personal representative's motion for a special administrator, Jameson's counsel did not object to Attorney Pollex's suggestion that a special administrator was necessary only for the limited purpose of representing the estate's interests with respect to the bank accounts. This suggestion appears inconsistent with the motion and with Attorney Pollex's argument, both of which seemed to assert that the special administrator should take over all duties of the personal representative pending resolution of this dispute. One may question why the appointment of a special administrator relating only to the issue of the bank accounts was the proper response to Neugart's motion raising her conflict: the accounts remained in the custody of the bank and Jameson was already advancing the interest of the estate in challenging Neugart's ownership of the accounts. However, since Jameson's counsel did not object, we will not now consider an argument that the court acted unreasonably at that point in allowing Neugart to continue as personal representative on other matters until the issue of the hank accounts was resolved.

¶ 32. Third, Jameson has not demonstrated that Neugart's handling of other property of the estate was remiss in any way. Although Jameson presented other grounds for removal at the July 2001 hearing — relating to the sale of real estate and some items of personal property — the court determined they presented no basis for removal, and Jameson does not develop an argument challenging that decision. As of that hearing, nothing remained to be done on behalf of the estate except paying attorney fees according to the court's rulings and preparing the final accounting. Therefore, at that point in time, even had the court ruled against Neugart on the matter of the bank accounts, it is not apparent what purpose would have been served by removing Neugart as personal representative.

¶ 33. Finally, with respect to Jameson's contention that she had to incur attorney fees that the estate would have incurred had Neugart not been acting as personal representative, Wis. Stat. § 879.63 provides that persons seeking to collect property for the estate, when the personal representative is not acting to do so, are entitled to attorney fees if they are successful. If Jameson is successful on remand in proving the bank accounts belong to the estate, she will be entitled to reasonable attorney fees under that statute. The court's decision in allowing Neugart to act as personal representative pending resolution of that issue did not and does not affect Jameson's ability to prevail on that issue.

Attorney Pollex's Fees

¶ 34. Jameson contends the court erred in ruling that the estate should pay Attorney Pollex's attorney fees, because, he asserts, Attorney Pollex acted at times on behalf of Neugart's interests as an individual, which were adverse to the interests of the estate. Neugart, as personal representative, responds that the circuit court was not ruling on all the attorney fees she incurred as personal representative, but only the fees for Attorney Pollex's services on the forgery issue and on the issue of her removal as personal representative. As to these fees, she asserts, the circuit court correctly ruled the estate should pay them.

¶ 35. Generally, the expenses and fees for a personal representative are committed to the circuit court's discretion, see Anderson v. Anderson, 147 Wis. 2d 83, 93, 432 N.W.2d 923 (Ct. App. 1988), as is the decision of what fees are reasonable for an attorney providing services for an estate under Wis. Stat. § 851.40, see id. at 93-94. However, whether a statute either requires or authorizes payment of a certain category of expenses or fees is a question of law, which we review de novo. See Estate of Burgess v. Peterson, 214 Wis. 2d 180, 189-90, 571 N.W.2d 432 (Ct. App. 1997).

¶ 36. We agree with Neugart, as personal representative, that the court's ruling on Attorney Pollex's fees did not address fees for all services he performed for the estate, because the order referred to his fees "in this matter." We also agree with both parties that the court did intend to rule that Attorney Pollex's fees in representing Neugart on the motion to remove her as personal representative should be paid by the estate. We conclude the court correctly decided that these attorney fees should be paid by the estate.

¶ 37. Wisconsin Stat. § 857.05 provides that the "personal representative shall be allowed all necessary expenses in the care, management and settlement of the estate." With respect to the motion to remove Neugart as the personal representative, the circuit court determined that there was no reason to remove her, and we have held that was not an erroneous exercise of discretion. We conclude that the reasonable attorney fees Neugart incurred in successfully defending herself on the removal motion were "necessary expenses in the care, management and settlement of the estate," because without successfully defending herself, she could not continue to fulfill her duties as personal representative.

¶ 38. With respect to Attorney Pollex's fees for services provided in litigating the forgery issue, we are unable to tell whether the court intended to include these fees in its ruling. However, it is not necessary to remand to allow the court to clarify this, because we conclude that, if the court did intend to order these fees to be paid by the estate, it would be an erroneous exercise of discretion.

¶ 39. It was in the estate's interest to have the bank accounts belong to the estate. We agree with Neugart, as personal representative, that she was not obligated to take the position on behalf of the estate that the signatures on the cards were forged, if in her judgment there was not a factual basis for that position. However, we do not agree that it was therefore proper for Neugart, in her capacity as personal representative, to attempt to prove that the cards were not forged. We can see no benefit to the estate resulting from a ruling that Christopherson's signatures were on the cards.

¶ 40. Neugart, as personal representative, evidently understood that proving that Christopherson did not intend a true joint ownership of the accounts was not in the estate's interest; she sought to remove herself as personal representative from that controversy, and only her personal attorney, not Attorney Pollex, represented her on that issue. However, as personal representative, she appears to believe that the forgery issue was different. We do not agree: the estate would benefit if Jameson succeeded in proving either that the signatures on the account cards were forged or that Christopherson did not intend true joint accounts.

¶ 41. Neugart, as personal representative, suggests that if Jameson had prevailed on the forgery issue, there would have been grounds to remove her as personal representative for forgery, and therefore she was acting properly to have Attorney Pollex represent the estate on the forgery litigation. We do not understand this reasoning. The court specifically excluded from the forgery hearing the issue of who signed the cards if Christopherson did not. Therefore, even if Jameson had prevailed at that hearing, the matter of Neugart's involvement and its relation to her service as personal representative would need to be resolved at subsequent hearings.

¶ 42. We conclude that attorney fees for Attorney Pollex's services in defending against the claim of forgery were not "necessary expenses [for Neugart] in the care, management and settlement of the estate." Wis. Stat. § 857.05(1). Therefore that statute does not provide a basis for the estate to pay those attorney fees.

¶ 43. For similar reasons, Wis. Stat. § 851.40(1) does not authorize payment of these fees by the estate. Section 851.40(1) provides: "Any attorney performing services for the estate of a deceased person in any proceeding under chs. 851 to 879, including a proceeding for informal administration under ch. 865, shall be entitled to just and reasonable compensation for such services." Attorney Pollex was not performing services for the estate when defending against Jameson's claim of forgery. It was in the estate's interest to let the interested parties — Jameson and Neugart individually — litigate that issue; it was not in the estate's interest to incur additional fees by duplicating attorney services, which, if successful, would not add any property to the estate.

Attorney Hollenbeck's Fees — Cross-Appeal

¶ 44. Neugart, individually, contends the circuit court erred in not ordering the estate to pay the attorney fees she incurred individually by retaining Attorney Hollenbeck to represent her on the issue of the bank accounts — both on the forgery issue and on the issue of Christopherson's intent. She contends that under our decision in Estate of Burgess, 214 Wis. 2d at 191, 192-93, Wis. Stat. § 857.07 entitles personal representatives to reimbursement for attorney fees reasonably incurred in the performance of their duties. That is a correct statement of the law, but Neugart retained Attorney Hollenbeck to represent her personal interests in the bank accounts. That interest existed whether or not she was personal representative, and, as we have already held in discussing Attorney Pollex's fees, it was not in the estate's interest that she protect her personal interests in the accounts. Therefore, neither § 857.07 nor Estate of Burgess provides authority for ordering the estate to pay the fees Neugart incurred by retaining Attorney Hollenbeck to represent her personal interests.

¶ 45. Neugart, individually, also contends the court erroneously exercised its discretion in declining to order the estate to pay her fees under Wis. Stat. § 879.37 since she was the prevailing party. However, since we have reversed the court's ruling on the issue of Christopherson's intent, Neugart is not at this time the prevailing party on that issue. She remains the prevailing party on the forgery issue, which Jameson has not appealed. However, the court's reasoning in ordering that Neugart personally pay Attorney Hollenbeck's fees was apparently that she prevailed in proving that she was the owner by survivorship of the bank accounts, and thus had benefited by realizing $70,000 from the litigation on the accounts. We conclude the better course is to permit the court on remand, after the issue of Christopherson's intent is litigated, to decide at that time if and to what extent Attorney Hollenbeck's fees should be paid for by the estate under § 879.37.

CONCLUSION

¶ 46. We reverse the court's determination that the bank accounts are true joint accounts and remand for a hearing on the issue of Christopherson's intent, consistent with this decision. We affirm the court's decision refusing to remove Neugart as personal representative, and its decision that the estate is to pay Attorney Pollex's fees in representing Neugart on that motion. We conclude that Attorney Pollex is not entitled to be paid by the estate for his services on the forgery issue. We also conclude that Neugart, individually, is not entitled to have the estate pay her fees for Attorney Hollenbeck's services under Wis. Stat. § 857.07. We leave for the court's determination on remand, after it decides the issue of Christopherson's intent, whether the estate should pay Attorney Hollenbeck's fees under Wis. Stat. § 879.37.

By the Court. — Orders affirmed in part; reversed in part and cause remanded with directions.

       Leonard Kosobud died on December 1, 2000, and his heirs at law are now the interested persons in the Christopherson estate. We will refer to Jameson and the Kosobud heirs, collectively, as "Jameson" throughout this opinion.

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

       Jameson also filed a motion on February 28, 2002, seeking double costs as a sanction for Neugart's alleged violation of Wis. Stat. Rule 809.19(3). We hereby deny Jameson's motion.

       The signature cards stated: "Joint Accounts: This account/certificate of deposit is jointly owned by the parties named hereon. Upon the death of any of them, ownership passes to the survivor(s). Sums on deposit are payable upon the request of any one of the depositors or any survivor."

       The separate civil action was ultimately dismissed.

       Neugart's deposition was taken by Jameson's counsel. Neugart testified that the only reason she obtained the signature cards was to cure overdraft problems of Christopherson and she did not have any intention to take over either account as a joint owner. She acknowledged she told Christopherson the reason for the signature cards was to see that the bounced checks were made good; that she did not tell Christopherson that by signing the accounts, Neugart would have a joint interest with a right of survivorship; and that Christopherson did not say anything about giving up an interest in either account. Neugart also testified that her daughter, who was with her, told Christopherson that Christopherson had to have somebody take care of her finances and that signing the cards was what the bank told Christopherson to do.

       Wisconsin Stat. § 804.07 provides in part:

        Use of depositions in court proceedings. (1) Use op depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
      (a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
      (b) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or employee or a person designated under s. 804.05(2)(e) or 804.06(1) to testify on behalf of a public or private corporation, limited liability company, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.
      (c) 1. The deposition of a witness other than a medical expert, whether or not a party, may be used by any party for any purpose if the court finds any of the following:
      a. That the witness is dead.
      b. That the witness is at a greater distance than 30 miles from the place of trial or hearing, or is out of the state, and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition.
      c. That the witness is unable to attend or testify because of age, illness, infirmity or imprisonment.
      d. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.
      e. Upon application and notice, that exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

       The delay in holding this hearing and other delays were due in part to the death of Leonard Kosobud on December 1, 2000.

       On September 12, 2000, Jameson had filed an amended motion requesting that Neugart be removed as personal representative, asserting essentially the same grounds as in the June 27 motion.

       Jameson offered transcripts of the depositions of other witnesses, which the court also excluded. However, those depositions are not at issue on this appeal.

       WISCONSIN Stat. § 705.04 provides:
      Right of survivorship. (1) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created.

       Jameson has not appealed the circuit court's determination that the signatures were Christopherson's.

       The objection based on the dead man's statute must be expressed as an objection to the competency of the witness. Tyznik v. Junak, 17 Wis. 2d 486, 488, 117 N.W.2d 601 (1962). This strictly-imposed requirement about the precise wording of the objection is the result of the disfavor with which courts view this statute, and one way the courts have limited its effect. Giese v. Reist, 91 Wis. 2d 209, 222, 281 N.W.2d 86 (1979).

       The issue in Bethesda Church v. Menning, 72 Wis. 2d 8, 12-13, 239 N.W.2d 528 (1976), was whether the statute barred the testimony of the spouse of a witness who was incompetent to testify under the statute, and the court concluded it did not, because the spouse's interest, dependent upon the laws of intestacy and election, was too remote and uncertain. The resolution of this issue has no bearing on this case.

       Neugart also cites Hounsell v. Department of Taxation, 252 Wis. 138, 31 N.W.2d 203 (1948), and Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976, 987 (E.D. Wis. 1999), in support of her position, but in both cases the person invoking the statute is not the witness whose testimony is at issue.

       Of course, even if Neugart were not a party, her deposition may be used for impeaching or contradicting her testimony at the hearing. Wis. Stat. § 804.07(l)(a).

       Jameson does not develop an argument that any of the other reasons for removing Neugart as personal representative that she presented at the July 10, 2001 hearing warranted removal, and we therefore do not address them.

       Jameson asserts that she first "moved" the court to schedule a hearing on the removal of Neugart as personal representative on March 3, 2000. However, the first motion in the record we see mentioning Neugart's removal as personal representative was the motion for stay filed on April 28, 2000. Jameson's filing of a separate action needlessly complicated matters.

       WISCONSIN Stat. § 879.63 provides:
      Action by person interested to secure property for estate. Whenever there is reason to believe that the estate of a decedent as set forth in the inventory does not include property which should be included in the estate, and the personal representative has failed to secure the property or to bring an action to secure the property, any person interested may, on behalf of the estate, bring an action in the court in which the estate is being administered to reach the property and make it a part of the estate. If the action is successful, the person interested shall be reimbursed from the estate for the reasonable expenses and attorney fee incurred by the person in the action as approved by the court but not in excess of the value of the property secured for the estate.

       WISCONSIN Stat. § 857.07 provides:

        Allowances to personal representative for costs. When costs are allowed against a personal representative in any action or proceeding the same shall be allowed the personal representative in the personal representative's administration account unless it appears that the action or proceeding in which the costs were taxed was prosecuted or resisted without just cause on the personal representative's part; and the court may determine, in rendering the judgment, whether the costs shall he paid out of the estate or by the personal representative. The court may allow as costs the sum paid by a personal representative on any bond or undertaking given by the personal representative in the case.
      The court in Estate of Burgess v. Peterson, 214 Wis. 2d 180, 192-193, 571 N.W.2d 432 (Ct. App. 1997), held that this statute requires the estate to reimburse a personal representative for fees for attorneys retained by a surety company defending the personal representative in a suit alleging her negligence, where the personal representative was required to involve the surety company in order to settle the estate and the company's involvement was contractually conditioned on the personal representative accepting responsibility of the company's attorney fees.

       WisConsin Stat. § 879.37 provides:
      Attorney fees in contests. Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if the unsuccessful proponent is named as an executor therein and propounded the document in good faith, and to the unsuccessful contestant of a will if the unsuccessful contestant is named as an executor in another document propounded by the unsuccessful contestant in good faith as the last will of the decedent.


author: FINE, J.

text:
    In the Matter of the Guardianship and Protective Placement of Muriel K., alleged incompetent: Jeffrey Knight and Norris Knight, Appellants-Petitioners, v. Milwaukee County and Muriel K., Respondents.
    Court of Appeals

      No. 00-0929.

      Submitted on briefs June 4, 2002.

    Decided July 2, 2002.

    2002 WI App 194
    (Also reported in 651 N.W.2d 890.)

      On behalf of the appellants, the cause was submitted on the briefs of Patricia M. Cavey of Tammi, Cohn & Cavey, Milwaukee.
    On behalf of the respondent, Milwaukee County, the cause was submitted on the brief oí Mary Ellen Poulos, principal assistant corporation counsel, Milwaukee.

      On behalf of the respondent-guardian, Steven C. Underwood, the cause was submitted on the brief of David W Runke of Michael Best & Friedrich, LLP, Milwaukee.
    On behalf of Muriel K.'s adversary counsel, the cause was submitted on the brief of Robert B. Peregrine of Peregrine & Roth, S.C., Milwaukee and Muriel K.'s guardian ad litem, Pamela D. Crawford, Franklin.
    Before Wedemeyer, EJ., Fine and Schudson, JJ.
   FINE, J.

¶ 1. Jeffrey and Norris Knight appeal from orders entered by the trial court appointing a guardian of both the estate and the person of Muriel K., and directing her protective placement in an unlocked unit of a nursing home. The Knights (Jeffrey is Norris's son) are not related to Muriel K. Rather, they had previously been designated by Muriel K. as her power-of-attorney agents — for financial matters (Jeffrey Knight) and for health-care matters (both Knights). After a hearing at which Muriel K. did not appear, the trial court stripped the Knights of these designated powers. The Knights appealed, but in an earlier decision we held that they had no standing to bring the appeal. Knight v. Milwaukee County, 2001 WI App 147, 246 Wis. 2d 691, 633 N.W.2d 222. Our decision was reversed by the supreme court. Knight v. Milwaukee County, 2002 WI 27, 251 Wis. 2d 10, 640 N.W.2d 773. Pursuant to the supreme court's direction, we now consider the Knights' appeal. See id. at ¶ 56. We hold that the trial court lacked competency to enter its orders because it did not comply with the statutory directive requiring that Muriel K. be present at the hearing. Accordingly, we vacate those orders, and do not discuss the other issues raised by the Knights. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).

I.

¶ 2. The facts of this case were set out at length in the earlier decisions, see Knight, 2002 WI 27 at ¶¶ 2-10; Knight, 2001 WI App 147 at ¶¶ 2-11, and will not be repeated here, except to note that Muriel K.'s guardian ad litem, purported to waive Muriel K.'s appearance at the hearing. This is how the guardian ad litem explained her decision to the trial court:

I visited with [Muriel K] several times. The last two visits, which were about ten days ago and yesterday, when informed that she would have a right to appear in court in the proceedings that were going on regarding her, she was adamant in saying she did not want to be here. She did not want to leave the nursing home. She became rather upset, and I believe that not only does she not want to be here, but I think it would be very upsetting for her and not in her best interest.

The Knights objected, and argued that under Leinwander v. Simmons, 236 Wis. 305, 294 N.W. 821 (1940), "if it is physically possible, the ward must be here." Moreover, the Knights argued that the guardian ad litem's representation that Muriel K. did not want to be present was "not what [Muriel K.] indicated to the medical doctor" who examined her at the Knights' request. The physician later testified that there "was no reason" why Muriel K. could not be present at the hearing. The trial court considered but overruled the Knights' objection, saying that "if she doesn't want to be here and the guardian ad litem has spoken for her, I'm not going to force her to be here."

II.

¶ 3. Wisconsin Stat. § 880.08(1) requires that an alleged incompetent appear at the hearing to determine his or her status. It provides, as material here:

The court shall cause the proposed incompetent, if able to attend, to be produced at the hearing. The proposed incompetent is presumed able to attend unless, after a personal interview, the guardian ad litem certifies in writing to the court the specific reasons why the person is unable to attend. If the person is unable to attend a hearing because of physical inaccessibility or lack of transportation, the court shall hold the hearing in a place where the person may attend if requested by the proposed ward, guardian ad litem, adversary counsel or other interested person.

The statute is clear. First, the "proposed incompetent is presumed able to attend" the hearing. Second, unless "the guardian ad litem certifies in writing to the court the specific reasons why the person is unable to attend," the trial court "shall cause the proposed incompetent ... to be produced at the hearing." Third, the trial court "shall hold the hearing in a place where the person may attend if requested by the proposed ward, guardian ad litem, adversary counsel or other interested person" if the proposed ward's inability to attend is "because of physical inaccessibility or lack of transportation." The statute thus reflects a legislative judgment that what the supreme court has declared to be "as difficult a judgment as a judge is called upon to make," Bryn v. Thompson, 21 Wis. 2d 24, 28, 123 N.W.2d 505, 507 (1963), that is, a declaration of incompetency and the attendant restrictions on a proposed ward's liberty, not be made without whatever input the proposed ward is able to give. Unfortunately, the trial court did not follow the statute.

¶ 4. Presumptions in Wisconsin are governed by Wis. Stat. Rule 903.01, which provides, as material here, that "a presumption... created by statute ... imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." Here, the usual scheme of invoking presumptions is altered because Wis. Stat. § 880.08(1) is self-executing and requires that the trial court sua sponte ensure that the proposed ward "be produced at the hearing" irrespective of whether any party desires it, as long as the proposed ward is "able to attend"; a motion to compel the attendance of the proposed ward is not necessary. See Bryn, 21 Wis. 2d at 28, 123 N.W.2d at 507 (Noting that, under a similar statute, the trial court has "an affirmative burden to produce the person unless such appearance is wholly impossible.").

¶ 5. Under Wis. Stat. Rule 903.01, the "presumed fact" is that Muriel K. was "able to attend" the hearing. Thus, those opposing her presence at the hearing had to prove that her inability to attend was "more probable" than not. Significantly, Wis. Stat. § 880.08(1) specifies the mode of proof: the guardian ad litem must certify "in writing to the court the specific reasons why the person is unable to attend." This was not done here. Rather, the guardian ad litem expressed — but did not, as the statute requires, "certifly] in writing" — two reasons why she wanted to waive Muriel K.'s presence at the hearing. First, she told the trial court that Muriel K. "was adamant in saying she did not want to be here." Second, the guardian ad litem said that "it would be very upsetting for [Muriel K.] and not in her best interest" to be present. These reasons do not equal an inability to attend. Accordingly, the trial court lacked competency to proceed. See Bryn, 21 Wis. 2d at 28, 123 N.W.2d at 507-508 (Under the then governing statute, "the 'court shall cause the proposed incompetent, if able to attend, to be produced at the hearing." This "places upon the court an affirmative burden to produce the person unless such appearance is wholly impossible because of the proposed incompetent's disordered condition. Failure to take such affirmative steps will deprive the court of a jurisdiction to make a determination of incompetency.").

¶ 6. Consistent with the procedure ordered by the supreme court in Leinwander, we vacate the orders of the trial court, remand this matter and direct that Muriel K. be produced at any hearing seeking to declare her to be incompetent if she is able to attend, in accordance with the procedures required by Wis. Stat. § 880.08(1). See Leinwander, 236 Wis. at 310, 294 N.W. at 823-824.

By the Court. — Orders vacated and cause remanded with directions.

       Wisconsin Stat. Rule 903.01 reads in full:
      Presumptions in general. Except as provided by statute, a presumption recognized at common law or created by statute, including statutory provisions that certain basic facts are prima facie evidence of other facts, imposes on the party relying on the presumption the burden of proving the basic facts, but once the basic facts are found to exist the presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more prohable than its existence.

       A trial court that may not exercise its jurisdiction is said to "lack competency to proceed." National Pawn Brokers Unlimited v. Osterman, Inc., 176 Wis. 2d 418, 427, 500 N.W.2d 407, 410 (Ct. App. 1993).