source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

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

      No. 02-2196-D.

      Decided August 12, 2003.

    2003 WI 122
    (Also reported in 667 N.W.2d 340.)
   PER CURIAM.

¶ 1. We review the referee's recommendation that Attorney Eric K. Grafs license to practice law in Wisconsin be suspended for a period of two years for professional misconduct. The referee also recommended that Attorney Graf be required to pay the costs of the proceeding. Attorney Graf did not appeal this report and recommendation.

¶ 2. We adopt the referee's findings of fact and conclusions of law and agree that the seriousness of Attorney Grafs professional misconduct warrants the suspension of his license to practice law in Wisconsin for a period of two years. We further agree that he should pay the costs of this proceeding.

¶ 3. Attorney Graf was admitted to practice in 1981. His license to practice law in Wisconsin is presently under suspension. Attorney Graf was administratively suspended on June 2,1998, for failing to establish compliance with mandatory Continuing Legal Education (CLE) requirements. He later submitted a petition for reinstatement in which he averred that his practice during his period of suspension had been "very infrequent." Upon investigation the Board of Professional Responsibility (Board) concluded that Attorney Graf had practiced law during his suspension. Attorney Graf also failed to cooperate with the Office of Lawyer Regulations' (OLR) subsequent efforts to investigate him. By order dated August 27, 2001, Attorney Graf was privately reprimanded for that misconduct and ordered to pay the costs of the OLR proceeding. He failed to pay the OLR costs and, by order dated February 26, 2002, his license was again suspended.

¶ 4. The facts giving rise to this disciplinary matter arise from the OLR's investigation into Attorney Grafs extensive unauthorized practice of law and other misconduct with respect to several client matters during the various periods he was under suspension. Attorney Graf has not responded to the OLR's attempts to investigate him. Despite numerous attempts, the OLR was unable to effect service of the complaint upon Attorney Graf, either in person or by mail.

¶ 5. Ultimately, the matter was submitted to Referee Janet Jenkins and, on October 10, 2002, the OLR filed a Motion for Default. A hearing on the OLR's motion was held on January 2, 2003. Attorney Graf did not appear at the hearing. The referee made the following findings of fact and recommendations based on the complaint and the evidence presented by the OLR at the hearing, and ultimately granted the OLR's motion.

¶ 6. The OLR presented substantial evidence of Attorney Grafs misconduct with respect to a grievance involving his representation of Andrea Utrie (Ms. Ut-rie), who formerly taught in the Beaver Dam Unified School District (School District).

¶ 7. In April 1999 the School District reassigned Ms. Utrie to another school within the district. Ms. Utrie was unhappy about this action and retained Attorney Graf to represent her. In July 1999 the School District informed Attorney Graf that the Beaver Dam Education Association (Teachers' Union) was Ms. Utrie's exclusive representative for grievances against the School District.

¶ 8. Ms. Utrie accepted a job as a teacher with another school district in the summer of 1999 but she advised Attorney Graf that she wished to pursue her grievance against the School District.

¶ 9. The School District denied Ms. Utrie's grievance in September 1999 and the Teachers' Union declined to pursue the matter.

¶ 10. At this time Attorney Graf advised Ms. Utrie that her claim was against the Teacher's Union and would likely be an expensive endeavor. Ms. Utrie indicated that she did not wish to sue the Teachers' Union. She wanted to continue her claims against the School District.

¶ 11. In November 1999 Attorney Graf drafted a complaint against the School District alleging wrongful acts on the part of the School District against Ms. Utrie and seeking itemized damages for lost compensation. Ms. Utrie signed the complaint on November 15, 1999.

¶ 12. Attorney Graf never filed the claim against the School District. Nonetheless, he repeatedly assured Ms. Utrie that he had obtained sheriffs service of the claim on the School District. In addition, he represented to Ms. Utrie and subsequently to OLR in a March 31, 2001, submission, that he had conducted witness interviews with potential witnesses. However, he failed to produce any interview notes or documentation of such interviews when requested to do so.

¶ 13. In the spring of 2000 Attorney Graf failed to respond to numerous telephone calls and e-mails from Ms. Utrie in which she sought information about the progress of her claim against the School District.

¶ 14. On May 11, 2000, Attorney Graf provided a written response to Ms. Utrie's stated desire to settle her claim against the School District, asking her specifically what relief she requested.

¶ 15. On June 9, 2000, Attorney Graf and Ms. Utrie had a meeting. At this time Attorney Graf was under CLE suspension but he did not tell Ms. Utrie of his license suspension. Ms. Utrie requested a copy of the claim she was told had been filed against the School District, proof of service, and copies of witness statements. Attorney Graf again reiterated that he had obtained service on the School District and had contacted witnesses, and that documentation of such would be provided later. He never gave Ms. Utrie anything to support his assertions that the claim against the School District had been filed and served.

¶ 16. On July 3, 2000, Ms. Utrie learned that there was no record of any claim having been served on the School District. In response to Ms. Utrie's questions Attorney Graf stated that he had sent a "short" notice of claim by registered mail and that he must have sent along the "legal" version by regular mail.

¶ 17. On July‘7, 2000, Ms. Utrie sent Attorney Graf a certified letter terminating his representation and demanding that he return $1500 of the $2000 retainer she had paid. She further demanded an itemized statement of services rendered and the return of certain portions of the file. Attorney Graf did not respond to Ms. Utrie's letter.

¶ 18. Ms. Utrie then asked another attorney to represent her. This attorney contacted Attorney Graf by telephone and asked him to forward the case file. Although he promised to do so, Attorney Graf never sent anything to the attorney and the attorney informed Ms. Utrie that he could not help her because he could not obtain the necessary information.

¶ 19. On January 31, 2001, Attorney Graf sent Ms. Utrie a memo, in which he stated that there was nothing further remaining that he could do for her in this matter. Ms. Utrie responded with a memo, disputing his contentions and again demanding the return of her case file.

¶ 20. Attorney Graf also represented Ms. Utrie in connection with a potential worker's compensation claim against the School District regarding denial of certain medical benefits relating to a leave of absence taken during the 1998-1999 school year.

¶ 21. On July 1, 1999, Attorney Graf filed a request for hearing with the. Department of Workforce Development (DWD). Attorney Graf later informed Ms. Utrie, on several occasions, that he had filed the necessary worker's compensation appeal regarding the denial of medical benefits. However, Attorney Graf never filed anything or took any action to further Ms. Utrie's worker's compensation claim.

¶ 22. Following their June 9, 2000, meeting, Attorney Graf wrote to Ms. Utrie on June 13, 2000, with instructions as to how she could obtain relevant records from the School District under the Wisconsin public records law. This legal advice was provided at a time when he was under a CLE suspension.

¶ 23. The referee also made detailed findings relating to Attorney Grafs misrepresentation to the Board of Bar Examiners (BBE), and failure to cooperate with the OLR.

¶ 24. As noted, Attorney Graf was suspended for noncompliance with CLE requirements for a period of time that included June 5, 2000, through August 1, 2000. During this time Attorney Graf filed a sworn petition for license reinstatement with the BBE, in which he averred: "I have not practiced law since being notified of ineligibility, this is causing a hardship, and I respectfully ask that prompt action be taken so as to permit me to resume the practice of law."

¶ 25. On July 25, 2000, Attorney Graf filed with the BBE an amended sworn petition for license reinstatement in which he stated: "I have not practiced law after the close of business on June 2, 2000, and I first learned of ineligibility on June 9, 2000." These two sworn statements were false.

¶ 26. By letter of August 30, 2000, the OLR informed Attorney Graf of Ms. Utrie's grievance and directed him to respond on or before September 25, 2000. Attorney Graf did not respond. The OLR sent an additional notice of the investigation by certified mail dated October 9, 2000, establishing a new response deadline of October 20, 2000.

¶ 27. Upon learning that Attorney Graf had not picked up mail at the location where these notices were sent, the OLR sent a notice of the grievance investigation to Attorney Graf by regular and certified mail to his home address in Madison. The OLR established a response deadline of November 17, 2000.

¶ 28. Attorney Graf signed for the certified letter. He did not, however, file a written response within the established deadline.

¶ 29. Eventually the OLR obtained a temporary suspension of Attorney Grafs law license for willful non-cooperation with the grievance investigation. Following imposition of the suspension Attorney Graf finally submitted a written response.

¶ 30. The referee also made findings regarding several other incidents of Attorney Graf practicing law while under suspension. Specifically, while Attorney Graf was employed as counsel for the Wisconsin Physicians Service (WPS) he filed a motion to reopen a default judgment while under CLE suspension. He also filed a cross-claim in the same action, discussed settlement of claims with opposing counsel, and submitted a proposed stipulation with documents identifying Attorney Graf as WPS's attorney, all while under suspension.

¶ 31. Attorney Graf admitted that he never informed his client, WPS, opposing counsel, or the court of his license suspension until he finally spoke with his supervisor on May 30, 2001. Attorney Graf further indicated that he performed legal work for WPS through May 30, 2001, although he did not make any court appearances subsequent to May 23, 2001.

¶ 32. A grievance was filed against Attorney Graf regarding his representation of WPS. Attorney Graf did not respond to the OLR's notice and request for a response in this matter.

¶ 33. Following a search of online records available through the Wisconsin Court System's Consolidated Court Automation Programs (CCAP), Attorney Graf was identified as attorney of record in more than 70 circuit court cases during periods when his license was suspended. The CCAP information revealed:

a. 44 cases pending in the Wisconsin Courts reflecting Grafs practice during the time of suspension related to dues nonpayment;
b. 22 cases reflecting practice of law by Graf during a CLE suspension; and
c. 64 cases reflecting Grafs practice of law during the suspension for willflil non-cooperation of a grievance investigation.

¶ 34. By letter dated December 20, 2001, the OLR staff provided Attorney Graf with a notice that an OLR inquiry was being commenced in connection with his practice of law while suspended. The OLR letter requested Attorney Graf to provide a written response to the inquiry on or before January 16, 2002. It also advised him as to his duty to provide full and fair disclosure of all facts regarding the alleged misconduct.

¶ 35. Attorney Graf did not respond. A subsequent certified letter was returned to the OLR unclaimed. Attorney Graf has never filed any written response to these allegations.

¶ 36. Based on these facts the referee made the following conclusions of law. First, the referee concluded that with respect to Ms. Utrie's potential claims arising from her employment with the School District, Attorney Graf failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. Attorney Graf failed to contact witnesses with potentially relevant information, failed to promptly ascertain the party or parties against whom to assert a claim, failed to pursue such a claim generally, and, in particular, failed to file a timely notice of claim against the School District.

¶ 37. The referee also concluded that by failing to surrender case file materials to Ms. Utrie or her successor counsel, Attorney Graf failed to take steps to the extent reasonably practical to protect a client's interest in violation of SCR 20:1.16(d).

■ ¶ 38. With respect to Ms. Utrie's worker's compensation claim, the referee concluded that by failing to file and otherwise pursue this claim, Attorney Graf failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

¶ 39. In addition, by failing to affirmatively apprise a client of a case status and by failing to respond to inquiries from Ms. Utrie, Attorney Graf failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

¶ 40. In addition, by misrepresenting to Ms. Utrie that a Notice of Claim had been served, Attorney Graf engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).

¶ 41. The referee also concluded that by performing legal services on behalf of Ms. Utrie, including the client meeting with her on June 9, 2000, and sending a letter of June 13, 2000, to her concerning the open records law, Attorney Graf practiced law during a CLE suspension, in violation of SCR 31.10(1).

¶ 42. The referee also concluded that by failing to notify Ms. Utrie he was suspended and/or advising her to seek representation elsewhere, Attorney Graf failed to comply with requirements imposed upon a lawyer following suspension, in violation of SCR 22.26(l)(a)(b).

¶ 43. The referee further concluded that by misrepresenting to BBE that he had not practiced subsequent to notice of a CLE suspension, Attorney Graf engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of SCR 20:8.4(c).

¶ 44. In addition, by failing to file a written response to a grievance investigation by OLR within 20 days of being served by ordinary mail with a request for a written response, Attorney Graf violated SCR 22.03(2)

¶ 45. Attorney Graf also violated SCR 31.10 by providing legal services on behalf of WPS at a time when he was under suspension. By failing to notify WPS of his suspension status, Attorney Graf violated SCR 22.26(l)(a)(b). And, by failing to notify the court or opposing counsel of his suspension status, he failed to comply with the duty imposed upon an attorney, in violation of SCR 22.26(l)(c).

¶ 46. In addition, by continuing to represent WPS after suspension, in particular, by engaging in settlement negotiations and by submitting a stipulation and cover letter to another attorney, Attorney Graf violated SCR 22.26(2).

¶ 47. The referee concluded that Attorney Graf also violated SCR 22.03(2) by failing to file a written response to a grievance investigation within 20 days of being served by ordinary mail of a request for such a written response. Similarly, by failing to respond to an investigation within 20 days of being served by ordinary mail with a request for a response, Attorney Graf violated SCR 22.03(6).

¶ 48. Attorney Graf also violated SCR 10.03(6) by serving as legal counsel of record in some 44 Wisconsin circuit court cases during a period of license suspension for dues nonpayment. He also violated SCR 31.10(1) by serving as legal counsel of record in 22 Wisconsin circuit court cases while his license was suspended for noncompliance with CLE requirements. And, by serving as counsel of record in 64 Wisconsin circuit court cases while his law license was suspended for his willful failure to cooperate in an investigation, Attorney Graf violated SCR 22.26(2).

¶ 49. The referee considered a number of factors in evaluating the appropriate discipline for Attorney Grafs misconduct. These included:

(1) The nature of the conduct, including consideration of: (a) the duty violated; (b) the attorney's mental state at the time of the conduct; and (c) the actual or potential injury caused by the conduct to any individual, the public or the profession; and
(2) The existence of any aggravating or mitigating circumstances; and
(3) The nature of the lawyer including consideration of: (a) the attorney's previous conduct/misconduct; (b) the attorney's attitude regarding the conduct; and (c) the attorney's rehabilitation potential; and
(4) The sanctions imposed upon others for similar conduct.

¶ 50. The referee then commented on the extensive facts presented by the OLR and set forth herein and observed that: "[Grafs] apparent willingness to blithely and repeatedly ignore his obligations to his clients and to the profession make the likelihood of rehabilitation minimal, at best." The referee then accepted the OLR's recommendation that Attorney Graf be suspended for two years and required to pay the costs of the OLR proceeding, which totaled $779.12.

¶ 51. We adopt the referee's report and recommendation. The seriousness of Attorney Grafs misconduct with respect to his mishandling of numerous client matters warrants the suspension of his license to practice law in Wisconsin for a period of two years.

¶ 52. IT IS ORDERED that the license of Attorney Eric K. Graf to practice law in Wisconsin is suspended for a period of two years, effective the date of this order.

¶ 53. IT IS FURTHER ORDERED that this suspension does not affect the existing suspensions, including his failure to comply with an order to reimburse OLR for the costs associated with a previous disciplinary proceeding.

¶ 54. IT IS FURTHER ORDERED that Attorney Eric K. Graf shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.

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

¶ 56. PATIENCE D. ROGGENSACK, J., did not participate.

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

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

       SCR 20:1.4(a) provides: "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

       SCR 31.10(1) provides:
      (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the board shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the state bar membership of the lawyer shall be automatically suspended for failing to fide evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of all lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.

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

       SCR 22.03(2) provides:
      (2) Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation.

       SCR 31.10 provides: Noncompliance.
      (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the board shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the state bar membership of the lawyer shall be automatically suspended for failing to file evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of all lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.
      (2) If the board believes that a false report has been filed, the board may refer the matter to the office of lawyer regulation.

       SCR 22.26(l)(c) provides:
      (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following:
      (c) Promptly provide written notification to the court or administrative agency and the attorney for each party in a matter pending before a court or administrative agency of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation. The notice shall identify the successor attorney of the attorney's client or, if there is none at the time notice is given, shall state the client's place of residence.

       SCR 22.26(2) provides:
      (2) An attorney whose license to practice law is suspended or revoked or who is suspended from the practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law.

       SCR 22.03(6) provides: "In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       SCR 10.03(6) provides: "Penalty for nonpayment of dues. If the annual dues of any member remain unpaid 120 days after the payment is due, the membership of the member may be suspended in the manner provided in the bylaws; and no person whose membership is so suspended for nonpayment of dues may practice law during the period of the suspension."


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

      No. 03-0263-D.

      Decided August 13, 2003.

    2003 WI 123
    (Also reported in 667 N.W.2d 348.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Robert L. Sherry and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12. On January 29, 2003, the OLR filed a complaint in this court alleging 21 separate counts of misconduct against Attorney Sherry. Sherry did not file an answer but instead, he and the OLR filed a stipulation in which Sherry admitted the facts and misconduct as alleged in the OLR's complaint and agreed to the level of discipline the OLR sought in this disciplinary matter — a nine-month suspension of Sherry's license to practice law in this state, and an order requiring Sherry to make restitution to Mohamad Khan in the amount of $102, and to Jessica Gall in the amount of $450.

¶ 2. We approve the stipulation and adopt the stipulated facts and conclusions regarding Sherry's 21 counts of misconduct as alleged in the OLR's complaint. We determine that the seriousness of Attorney Sherry's misconduct warrants suspension of his license to practice law for a period of nine months. We also agree that he should be required to make restitution to his clients in the amounts stipulated.

¶ 3. Attorney Robert L. Sherry was admitted to practice law in Wisconsin in 1984. His license was subsequently administratively suspended on June 6, 2001, for noncompliance with CLE requirements; then on October 30, 2001, his license was temporarily suspended for his failure to cooperate with an OLR grievance investigation. Sherry's license remains suspended.

¶ 4. In the OLR's disciplinary complaint filed in this court, it was alleged that Attorney Sherry had committed 21 separate counts of misconduct. Those counts involved Sherry's representation of several clients as well as Sherry's failure to timely file personal income tax returns and failure to cooperate with the OLR in its investigations. Sherry now admits to the facts as alleged in the OLR complaint. Briefly summarized the allegations are these:

I. REPRESENTATION OF WILLIAM EISEMAN— COUNTS ONE THROUGH SIX

¶ 5. The OLR complaint alleged, and Sherry now stipulates, that in late 1998 and 1999 Sherry represented William Eiseman, a real estate owner/manager in several eviction actions. In one such action Eiseman's commercial tenant successfully contested the claimed breach of lease and that eviction complaint was dismissed. Eiseman then gathered additional evidence concerning that commercial tenant's alleged breaches of the lease and Sherry agreed to file another eviction action against her. Subsequently, Eiseman repeatedly attempted to reach Sherry to determine the status of that second eviction action but Sherry failed to return Eiseman's calls or voice mail messages.

¶ 6. Sherry later informed Eiseman that he had commenced a new action against that commercial tenant and that a return date had been scheduled but then, according to Sherry, it had been adjourned. Ultimately, Sherry admitted to Eiseman that he had not taken any further action to evict that commercial tenant.

¶' 7. Sherry had also been asked by Eiseman to file an eviction action against a residential tenant. Again, Sherry informed Eiseman that the eviction action had commenced and that a return date had been scheduled, only to subsequently inform Eiseman that the return date had been adjourned. In August 1999 Sherry assured Eiseman that a writ of restitution had been issued with respect to that residential tenant; however, when pressed by Eiseman about that writ, Sherry admitted that he had not obtained one. Sherry promised Eiseman that he would then commence an eviction action against that residential tenant and secure the writ. Eiseman later contacted the clerk of court's office and discovered that no action against that tenant had been filed.

¶ 8. In September of 1999 Eiseman repeatedly asked Sherry to transfer the eviction files to his new attorney. Sherry told the new attorney that he would bring the files to his office that day but never did so.

¶ 9. When the OLR's district investigative committee subpoenaed Sherry for an interview and asked him to produce Eiseman's eviction files, Sherry failed to do so. At the interview the committee again asked Sherry to produce and surrender the eviction files and Sherry agreed to locate them and provide them to the OLR. A second written request from the investigative committee reminded Sherry of his promise to produce the files but Sherry did not produce the files nor did he respond in any way to that second request.

¶ 10. During the OLR's subsequent investigation of Eiseman's grievance against Sherry it was discovered that Sherry's license to practice law had been administratively suspended on June 6, 2001, for his noncompliance with the mandatory CLE requirements. The OLR staff requested information from Sherry concerning this administrative suspension and then granted Sherry's request for an extension to respond to that inquiry until July 2, 2001. After receiving no response from Sherry, the OLR sent follow-up correspondence but again Sherry did not respond.

¶ 11. In August 2001 the OLR staff sent two final letters to Sherry by certified mail and personal service requesting a response and informing him that if the OLR did not receive a response by August 23, 2001, it would seek a suspension of Sherry's license under SCR 22.03(4) for his failure to cooperate in the OLR investigation. Sherry again requested an extension which the OLR granted until August 29, 2001. However, Sherry failed to respond. On October 30, 2001, at the OLR's request, pursuant to SCR 22.21(2), this court temporarily suspended Sherry's license to practice law in this state for his failure to cooperate with the investigation.

¶ 12. This course of conduct resulted in Counts One through Six in the OLR's complaint. Those counts of misconduct to which Sherry now stipulates are:

A. Count One

¶ 13. By failing to initiate an eviction action against Eiseman's commercial tenant, Sherry failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

B. Count Two

¶ 14. By failing to initiate an eviction action against Eiseman's residential tenant, Sherry failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

C. Count Three

¶ 15. By informing Eiseman that an eviction action had been filed against the commercial tenant and that a court date had been scheduled and adjourned when, in fact, no action had been filed, Sherry engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

D. Count Four

¶ 16. By informing Eiseman that an eviction action had been filed against the residential tenant, that a court date had been scheduled, and that a writ of restitution had been issued when in fact no action had been filed, Sherry engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

E. Count Five

¶ 17. By failing to deliver Eiseman's files to successor counsel, Sherry failed to surrender papers and property to which a client is entitled, in violation of SCR 20:1.16(d).

F. Count Six

¶ 18. By failing to respond to correspondence from the OLR in the investigation in this matter and by failing to provide the eviction files to the OLR district committee investigator, Sherry failed to cooperate with the OLR in the investigation of this matter, in violation of SCR 21.15(4).

II. TAX RETURNS — COUNTS SEVEN AND EIGHT

¶ 19. The OLR complaint further alleged, and Sherry now stipulates, that on July 10, 2000, the Internal Revenue Service (IRS) informed the OLR that Sherry had failed to file quarterly payroll tax returns for July 1, 1997, through September 30, 1999, and that he had failed to file individual tax returns for the years 1997 and 1998. Subsequently, Sherry did not respond to two certified letters the OLR sent to him requesting a written response to the IRS report. On January 25, 2001, the OLR sent Sherry a third letter requesting a response. On February 5, 2001, Sherry wrote to the OLR reporting that he was "in the process of finalizing returns for overdue tax filings" and that he anticipated the returns would be completed within 28 days.

¶ 20. Subsequently, Sherry failed to respond to the OLR's telephone messages. After another certified letter on April 2, 2001, Sherry agreed to meet with the OLR staff on April 18, 2001. During that interview Sherry admitted that he had failed to file his quarterly payroll tax returns beginning in mid-1997, and his personal income tax returns beginning in 1997. Sherry stated, however, that he had an appointment with an accountant to prepare the necessary returns.

¶ 21. Thereafter, Sherry failed to respond to the OLR's request that he inform the OLR when he had followed through and met with his accountant and filed the delinquent tax returns. The Wisconsin Department of Revenue (DOR) later filed a series of collection actions and levies against Sherry but Sherry still failed to file payroll tax returns for July 1997 through December 1998. He also failed to timely file his individual tax returns for the years 1997, 1998, 1999, and 2000.

¶ 22. Sherry later informed the OLR that he had forwarded those tax returns to the IRS and the DOR in October 2001. The DOR records, however, reflect that Sherry only filed his 2000 income tax returns on October 7, 2001, and that his 1997 1998, and 1999 income tax returns were not filed until January 4, 2002.

¶ 23. This course of conduct as alleged in the OLR's complaint resulted in Counts Seven and Eight to which Sherry has now stipulated:

A. Count Seven

¶ 24. By failing to file quarterly payroll tax returns for the period of July 1, 1997, through December 31, 1998, and by failing to timely file quarterly payroll tax returns for 1999 and income tax returns for 1997, 1998, 1999, and 2000, Sherry violated a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers (State v. Roggensack, 19 Wis. 2d 38, 45, 119 N.W.2d 412 (1963)), in violation of SCR 20:8.4(f).

B. Count Eight

¶ 25. By failing to provide a written response to correspondence from the OLR, Sherry willfully failed to cooperate with the OLR in the investigation of this matter, in violation of SCR 22.03(4) and SCR 21.15(4).

III. WANDEL DIVORCE — COUNTS NINE AND TEN

¶ 26. The OLR complaint alleged, and Sherry now stipulates, that in December 2000 he was retained by Kelly Wandel to initiate divorce proceedings and obtain a child support order. Kelly Wandel thereafter paid Sherry a $500 retainer, and in March 2001 authorized him to start the divorce action on her behalf. Sherry did so on April 10, 2001.

¶ 27. The first hearing in that divorce matter was scheduled for April 26, 2001, but then rescheduled to May 23, 2001, because Sherry had been unable to obtain service on Kelly Wandel's husband. After attempting to obtain service for those first two hearing dates, Sherry took no further action in that divorce proceeding. After May 2001 Kelly Wandel repeatedly attempted to contact Sherry to determine the status of her divorce action but he failed to respond to her phone calls. She hired a new attorney to represent her in the fall of 2001.

¶ 28. This course of conduct led to Counts Nine and Ten in the OLR complaint against Sherry to which he now stipulates.

A. Count Nine

¶ 29. By taking no action in Kelly Wandel's divorce action after preliminary service attempts had failed, Sherry failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

B. Count Ten

¶ 30. By failing to respond to Kelly Wandel's phone calls after May 2001 Sherry failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

IV LEONARD BRUMM COLLECTION MATTERS— COUNTS ELEVEN THROUGH FIFTEEN

¶ 31. The OLR complaint alleges, and Sherry now stipulates, that Leonard Brumm who owned a remodeling business, Lake States, Inc., retained Sherry to represent him in several collection matters. In 1997 Brumm asked Sherry to commence a collection action to collect $4400 that an individual owed Brumm for repairs and remodeling. Sherry filed that lawsuit on behalf of Brumm's business on October 22, 1997.

¶ 32. Sherry and the defendant's counsel then reached a tentative agreement to settle that lawsuit for $1350. Sherry, however, never communicated that settlement to Brumm.

¶ 33. Subsequently, the circuit court dismissed that collection action on September 3, 1998, on the representation that the case had been settled. Sherry did not inform Brumm that the lawsuit had been dismissed. In fact, the settlement had never been consummated because Sherry had not prepared the settlement documents. Brumm repeatedly attempted to contact Sherry to determine the status of that lawsuit and, after a series of unsuccessful attempts, Brumm hired another attorney in June 2001. That second attorney then discovered that the lawsuit had been dismissed.

¶ 34. Brumm had also retained Sherry in late 1997 to foreclose oil a $1850 construction lien. Thereafter Brumm repeatedly attempted to contact Sherry about the status of that foreclosure action but Sherry failed to respond or take any action to foreclose the construction lien.

¶ 35. In March 2001 Brumm retained Sherry to collect a $12,500 judgment that Brumm's business had obtained in an arbitration proceeding. Brumm gave Sherry a $250 check to commence execution on that judgment; the sheriffs department, however, has no record of any attempted execution on the judgment.

¶ 36. Sherry later informed Brumm that he would conduct a supplemental examination of that judgment debtor but Sherry never conducted that supplemental examination. Brumm repeatedly attempted to obtain a status report from Sherry about the $12,500 collection matter but without success.

¶ 37. This course of conduct led to Counts Eleven through Fifteen in the OLR complaint to which Sherry now stipulates.

A. Count Eleven

¶ 38. By failing to communicate the offer of settlement to Brumm in the 1997 colléction matter, Sherry failed to inform his client of all offers of settlement and abide by a client's decision whether to accept the offer of settlement of a matter, in violation of SCR 20:1.2(a).

B. Count Twelve

¶ 39. By failing to take appropriate steps toward finalizing the settlement, including failing to reduce the settlement agreement to writing in the 1998 matter after the court dismissed the case upon assurances of counsel that it had been settled, Sherry failed to act with reasonable diligence in representing a client, in violation of SCR 20:1.3.

C. Count Thirteen

¶ 40. By failing to perform work to foreclose on Lake State's construction lien, Sherry failed to act with reasonable diligence in representing a client, in violation of SCR 20:1.3.

D. Count Fourteen

¶ 41. By failing to collect on Lake State's $12,500 judgment, Sherry failed to act with reasonable diligence in representing a client, in violation of SCR 20:1.3.

E. Count Fifteen

¶ 42. By not informing Brumm that the 1997 collection matter had been dismissed and by failing to respond to Brumm's repeated correspondence requesting status reports, Sherry failed to keep his client reasonably informed about the status of the matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

V PRIVATE INVESTIGATOR FALKNER— COUNT SIXTEEN

¶ 43. The OLR complaint alleges, and Sherry now stipulates, that Sherry hired Gerald Falkner, a private investigator, to perform investigative work in three public defender cases in which Sherry had been appointed as defense counsel. Sherry and Falkner agreed that Falkner would wait to receive payment for his services until after Sherry had been paid Falkner's costs by the state public defender's office.

¶ 44. Sherry thereafter received payments for the investigations from the state public defender's office in those three cases in the amount of $316.81, $187.33, and $519, respectively. Sherry cashed those checks but failed to forward the money to Falkner despite Falkner's numerous attempts to obtain the money. Falkner did not receive his payments until late 2001.

¶ 45. This course of conduct led to count 16 in the OLR complaint to which Sherry now stipulates.

A. Count Sixteen

¶ 46. By failing to promptly deliver to Falkner the funds from the state public defender's office that Falkner was entitled to receive, Sherry failed to promptly deliver to a third person funds that that person was entitled to receive, in violation of SCR 20:1.15(b).

VI. CLIENT KHAN — COUNT SEVENTEEN

¶ 47. The OLR complaint alleges, and Sherry now stipulates, that in March 1999 Mohamad S. Khan retained Sherry to represent Khan in collecting a security deposit purportedly wrongly retained by the buyer of rental property previously owned by one Noreen Khan. Mohamad Khan paid Sherry an advance of $102 for costs; Sherry, however, did not file a lawsuit on Khan's behalf.

¶ 48. Despite Khan's request Sherry failed to return the $102 and failed to deliver Khan's file to Khan's new attorney.

¶ 49. This course of conduct led to Count Seventeen in the OLR's complaint against Sherry to which he now stipulates.

A. Count Seventeen

¶ 50. By failing to return the $102 in advance costs and by failing to deliver Khan's file to his new attorney, Sherry failed to surrender papers and property to which a client was entitled and refund any advance payment of fees that had not been earned, in violation of SCR 20:1.16(d).

VII. GALL DIVORCE ACTION — COUNTS EIGHTEEN THROUGH TWENTY-ONE

¶ 51. The OLR complaint alleges, and Sherry now stipulates, that in December 2000 Jessica Gall retained Sherry to represent her in a divorce action. She paid Sherry a retainer of $850.

¶ 52. The initial hearing in that divorce action was held on March 21, 2001; thereafter, Sherry failed to perform any work on that divorce action.. He also , did not return Gall's phone calls and failed to keep her informed about the divorce action. He did, however, have five telephone conversations with Jessica Gall, some of which occurred after Sherry's law license had been administratively suspended on June 6, 2001, due to his noncompliance with CLE requirements.

¶ 53. Specifically, in August and September 2001, Sherry provided legal advice to Gall over the telephone concerning her divorce action; however, he never informed her that his law license had been suspended.

¶ 54. In October 2001 Sherry informed Gall that he could not complete her divorce action because of depression. Sherry agreed to refund to Gall $425 of her retainer fee by October 26, 2001, but he failed to do so.

¶ 55. This course of conduct led to Counts Eighteen through Twenty-One in the OLR's complaint to which Sherry has now stipulated.

A. Count Eighteen

¶ 56. By failing to take action in Gall's divorce after the initial hearing on March -21, 2001, Sherry failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.

B. Count Nineteen

¶ 57. By failing to respond to Gall's attempts to communicate with him regarding the status of the divorce action, Sherry failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

C. Count Twenty

¶ 58. ,, By failing to refund Gall $425 of her retainer fee, as promised, Sherry failed to surrender papers and property to which a client was entitled and refund any advance payment of fees that had not been earned, in violation of SCR 20:1.16(d).

D. Count Twenty-One

¶ 59. By providing legal advice to Gall while his license was suspended, Sherry violated a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers, SCR 31.10, which prohibits the practice of law while the lawyer's state bar membership is suspended for noncompliance with CLE requirements, in violation of SCR 20:8.4(f).

¶ 60. As noted, Sherry has now stipulated to these 21 counts of misconduct as alleged by the OLR in its complaint. He admits the facts and the misconduct as alleged and agrees with the OLR that a nine-month suspension of his license to practice law in this state is an appropriate sanction for that misconduct. He also agrees with the OLR that he should make restitution to Mohamad Khan in the amount of $102, and to Jessica Gall in the amount of $450.

. ¶ 61. We approve the stipulation and determine that the seriousness of Attorney Sherry's misconduct warrants the suspension of his license to practice law for nine months. Sherry's admitted acts are serious violations of the Rules of Professional Conduct governing lawyers in this state. We also agree that Sherry should make restitution in the stipulated amounts.

¶ 62. IT IS ORDERED that the license of Robert L. Sherry to practice law in Wisconsin is suspended for period of nine months, effective the date of this order.

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

¶ 64. IT IS FURTHER ORDERED that within 60 days of the date of this order, Robert L. Sherry shall make restitution in the amount of $102 to Mohamad Khan and in the amount of $450 to Jessica Gall. If that restitution is not paid within 60 days, and absent a showing to this court of his inability to pay such restitution within that time, the license of Robert L. Sherry to practice law in this state shall remain suspended until further order of this court.

¶ 65. PATIENCE D. ROGGENSACK, J., did not participate.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body-responsible for investigating and prosecuting cases involving attorney misconduct' was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation and the supreme court rules applicable to the lawyer regulation system were also revised in part. Some of the conduct underlying this case arose prior to October 1, 2000. However, the complainant in this case will be referred to as the OLR. All references to supreme court rules will be to the current version of the supreme court rules unless otherwise noted.


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

      No. 03-1700-D.

      Decided August 13, 2003.

    2003 WI 124
    (Also reported in 667 N.W.2d 355.)
   The Court entered the following order on this date:

The Office of Lawyer Regulation (OLR) and Attorney Timothy Michael Whiting have stipulated, pursuant to SCR 22.12, for reciprocal discipline under SCR 22.22.

Attorney Whiting has been licensed to practice law in Wisconsin since 1994 and his Wisconsin license is currently in good standing. He was admitted to practice law in Illinois in 1995.

Pursuant to a January 28, 2003 order of the Illinois Supreme Court, Attorney Whiting was censured for misconduct consisting of:

• Soliciting professional employment from a prospective client who is neither a relative nor close friend of the lawyer, or person with whom the lawyer or lawyer's firm has had no prior professional relationship, and failing to label a letter and its envelope to a prospective client as advertising material, in violation of Rule 7.3(a)(1) and (2) of the Illinois Rules of Professional Conduct;
• Soliciting a prospective client when the lawyer reasonably should know that the physical or mental state of the person is such that the person could not exercise professional judgment in employing a lawyer, in violation of Rule 7.3(b)(1) of the Illinois Rules of Professional Conduct; and
• Conduct which tends to bring the courts or legal profession into disrepute, in violation of Illinois Supreme Court Rule 771.

SCR 22.22(3) provides that this court shall impose the identical discipline or license suspension unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court should not accept as final the misconduct finding; or the misconduct justifies substantially different discipline here. Neither OLR nor Attorney Whiting contend, nor does this court find, that any of these three exceptions exist.

Accordingly,

IT IS ORDERED that Attorney Timothy Michael Whiting is publicly reprimanded.


text:
    Dustin Dowhower, a minor, by his Guardian ad Litem Susan Rosenberg, Tamara Dowhower and Larry Dowhower, Plaintiffs-Respondents, v. Simon Marquez and Viking Insurance Company of Wisconsin, Defendants, West Bend Mutual Insurance Co., Defendant-Appellant, Aetna Life Insurance Co., Defendant.
    Supreme Court

      No. 01-1347.

      Decided September 12, 2003.

    2003 WI 127
    (Also reported in 668 N.W.2d 735.)
   The Court entered the following order on this date:

A petition for review pursuant to Wis. Stat. § 808.10 having been filed on behalf of defendant-appellant-petitioner, West Bend Mutual Insurance Co., and a motion of the Wisconsin Insurance Alliance for leave to file a non-party brief in support of the petition for review pursuant to Wis. Stat. § (Rule) 809.19(7), and considered by this court;

IT IS ORDERED that the motion of the Wisconsin Insurance Alliance to file an amicus curiae brief in support of the petition for review pursuant to Wis. Stat. § (Rule) 809.19(7) is granted and the accompanying brief is accepted for filing;

IT IS FURTHER ORDERED that the petition for review is granted, the court of appeals' decision in this case is summarily vacated and the matter is remanded to the court of appeals for further consideration in light of this court's decision in Folkman v. Quamme, 2003 WI 116 (opinion issued July 16, 2003).


text:
    Bobbie Gohde and Rick Gohde, Plaintiffs-Appellants, v. MSI Insurance Company, Defendant-Respondent.
    Supreme Court

      No. 01-2121.

      Decided September 12, 2003.

    2003 WI 128
    (Also reported in 668 N.W.2d 556.)
   The Court entered the following order on this date:

A petition for review pursuant to Wis. Stat. § 808.10 having been filed on behalf of defendant-respondent-petitioner, MSI Insurance Company, and a motion for leave to file a non-party brief in support of petition for review filed by Wisconsin Insurance Alliance, and both considered by this court;

IT IS ORDERED that the motion is granted and the brief is accepted for filing;

IT IS FURTHER ORDERED that the petition for review is granted, the court of appeals' decision in this case is summarily vacated and the matter is remanded to the court of appeals for further consideration in light of this court's decision in Folkman v. Quamme, 2003 WI 166 (opinion issued July 16, 2003).


text:
    Steven Van Erden and Cherie Van Erden, Plaintiffs-Appellants, v. Joseph A. Sobczak, Defendant, American Family Mutual Insurance Company and City of Milwaukee, Defendants-Respondents, Badger Mutual Insurance, Intervenor.
    Supreme Court

      No. 02-1595.

      Decided September 12, 2003.

    2003 WI 129
    (Also reported in 668 N.W.2d 735.)
   The Court entered the following order on this date:

A petition for review pursuant to Wis. Stat. § 808.10 having been filed on behalf of plaintiffs-appellants-petitioners, Steven and Cherie Van Erden, and considered by this court;

IT IS ORDERED that the petition for review is granted, the court of appeals' decision in this case is summarily vacated and the matter is remanded to the court of appeals for further consideration in light of this court's decision in Folkman v. Quamme, 2003 WI 116 (opinion issued July 16, 2003).


author: DEININGER, J.

text:
    Nesbitt Farms, LLC and Wilshire Developments, LLC, Plaintiffs-Appellants, v. City of Madison, Defendant-Respondent.
    Court of Appeals

      No. 02-2212.

      Submitted on briefs January 10, 2003.

    — Decided May 8, 2003.

    2003 WI App 122
    (Also reported in 665 N.W.2d 379.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Ian A.J. Pitz and Nia Enemuoh-Trammel of Michael Best & Friedrich, LLP, Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Katherine C. Noonan, assistant city attorney, Madison.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.
   DEININGER, J.

¶ 1. Nesbitt Farms, LLC and Wilshire Development, LLC appeal an order which dismissed their appeal of the amount of compensation the City awarded them for a parcel of real estate the City acquired by condemnation. Nesbitt and Wilshire (collectively, "the owners") claim the circuit court erred in concluding they were required to file a notice of claim under Wis. Stat. § 893.80(1) (2001-02) prior to commencing their appeal of the condemnation award under Wis. Stat. § 32.05(11). We conclude that § 32.05 provides a specific statutory procedure for appealing the amount of a condemnation award, a procedure whose provisions and purposes are inconsistent with the notice of claim statute. Accordingly, we reverse the appealed order and remand for further proceedings in the circuit court on the owners' appeal.

BACKGROUND

¶ 2. Details of the interactions between the City and the owners during the condemnation process are largely irrelevant to the issue before us. It is sufficient to note that the City condemned a 17.853-acre parcel belonging to the owners for public use as a storm water detention pond. The City recorded an "Award of Compensation" for the parcel. The owners, within two years, filed in Dane County circuit court a "Notice of Appeal and Appeal" of the amount of compensation awarded.

¶ 3. The City moved to. dismiss the appeal on the grounds that the owners had not filed a notice of claim with the City under Wis. Stat. § 893.80(1). Because the parties filed affidavits in support of and in opposition to the City's motion, the circuit court treated the motion as one for summary judgment. The owners did not dispute that they had not filed a notice of claim under § 893.80(1) but claimed such a notice was not necessary given the statutory procedure for appealing a condemnation award set forth in Wis. Stat. § 32.05(11). The court rejected this argument and concluded that the notice of claim statute applied to the owners' action. Accordingly, the court granted the City's motion for dismissal and the owners appeal.

ANALYSIS

¶ 4. We review the granting of a motion for summary judgment de novo, applying the same methodology and standards as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no disputed issues of material fact, summary judgment is proper where the moving party is entitled to judgment as a matter of law. See id. When, as here, an appellant does not argue that a factual dispute bars summary judgment, the " 'practical effect is that the facts are stipulated and only issues of law are before us.'" See Lucas v. Godfrey, 161 Wis. 2d 51, 57, 467 N.W.2d 180 (Ct. App. 1991) (citation omitted). Specifically, "[wjhether the notice provisions of [Wis. Stat.] § 893.80(1) apply to actions initiated under" other statutes "involves statutory interpretation[, which is] a question of law that we review independently without deference to the circuit court's resolution of the issue." State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 592, 547 N.W.2d 587 (1996).

¶ 5. We begin by consulting the statutes at issue in this appeal. Wisconsin Stat. § 32.05(11) provides in relevant part as follows:

The owner of any interest in the property condemned named in the basic award may... within 2 years after the date of taking, appeal to the circuit court of the county wherein the property is located .... The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall proceed as an action in said court subject to all the provisions of law relating to actions originally brought therein and shall have precedence over all other actions not then on trial. The sole issues to be tried shall be questions of title, if any, under ss. 32.11 and 32.12 and the amount of just compensation to be paid by condemnor. It shall be tried by jury unless waived by both plaintiff and defendant.

¶ 6. The City does not dispute that the owners timely and properly filed their appeal under the quoted statute. The City asserts, however, that the commencement of the appeal was nonetheless defective because the owners failed to comply with the following statutory requirement:

[N]o action may be brought or maintained against any ... political corporation, governmental subdivision or agency thereof... upon a claim or cause of action unless:
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the ... political corporation, governmental subdivision or agency ..and
(b) A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant ... corporation, subdivision or agency and the claim is disallowed.

Wis. Stat. § 893.80(1). The City relies, as did the circuit court, on the supreme court's conclusion in DNR v. City of Waukesha, 184 Wis. 2d 178, 515 N.W.2d 888 (1994), that the

language of [Wis. Stat. § 893.80(1)] clearly and unambiguously makes the notice of claim requirements applicable to all actions. The legislature's decision to remove the language limiting the statute to tort claims reinforces this conclusion. Thus, we now hold that sec. 893.80 applies to all causes of action, not just those in tort and not just those for money damages.

Id. at 191 (emphasis added).

¶ 7. Since the decision in DNR v. City of Wauke-sha, however, the supreme court and this court have identified a number of statutes which provide specific procedures for bringing actions in which municipal entities are defendants or respondents, but to which the notice of claim requirement of Wis. Stat. § 893.80(1) does not apply. See Gillen v. City of Neenah, 219 Wis. 2d 806, 822-23, 580 N.W.2d 628 (1998) (actions under Wis. Stat. § 30.294 to enjoin violations of the public trust doctrine); Auchinleck, 200 Wis. 2d at 597 ("actions brought under the open records and open meetings claims laws"); Town of Burke v. City of Madison, 225 Wis. 2d 615, 617, 593 N.W.2d 822 (Ct. App. 1999) (actions under Wis. Stat. § 66.021 "objecting to a city's annexation of a town's land"); Gamroth v. Village of Jackson, 215 Wis. 2d 251, 259, 571 N.W.2d 917 (Ct. App. 1997) (actions under Wis. Stat. § 66.60(12)(a) to appeal special assessments); Little Sissabagama Lake v. Town of Edgewater, 208 Wis. 2d 259, 265, 559 N.W.2d 914 (Ct. App. 1997) (actions to appeal a county board's determination under Wis. Stat. § 70.11(20)(d) regarding the requirements for tax-exempt status).

¶ 8. Thus, the question before us is whether an appeal to the circuit court of a condemnation award under Wis. Stat. § 32.05(11) is subject to the rule set forth in DNR v. City of Waukesha requiring a notice of claim under Wis. Stat. § 893.80(1) for "all actions," or whether actions under § 32.05(11) will become the latest in a lengthening list of exceptions to that rule. We conclude it is an exception to the rule.

¶ 9. We identified three factors in Town of Burke v. City of Madison which shed light on the question of whether Wis. Stat. § 893.80(1) applies to a given action against a municipality:

(1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; (2) whether enforcement of § 893.80(1), Stats., would hinder a legislative preference for a prompt resolution of the type of claim under consideration; and (3) whether the purposes for which § 893.80(1) was enacted would be furthered by requiring that a notice of claim be filed.

Town of Burke, 225 Wis. 2d at 625 (footnotes omitted). We therefore consider how the appeal procedure under Wis. Stat. § 32.05(11) fares under these factors.

¶ 10. The first factor plainly weighs in favor of an exception to the notice of claim requirement: Wis. Stat. § 32.05(11) provides a "specific statutory scheme" for landowners to seek court review of condemnation awards. The statute details the procedure and deadline for commencing such actions, as well as specifying other matters, such as how other interested parties may join the appeal and what issues may be tried. The supreme court, moreover, has described Wis. Stat. ch. 32 as providing "the 'complete and exclusive' procedures" for appealing condemnation awards. DOT v. Peterson, 226 Wis. 2d 623, 627, 594 N.W.2d 765 (1999) (citation omitted). The City does not dispute that the present action is a specialized and limited action of statutory origin. Rather, it asserts that the remaining factors weigh in favor of requiring landowners to file notices of claim before proceeding under § 32.05(11). We disagree.

¶ 11. The second factor we identified in Town of Burke v. City of Madison is whether applying the notice of claim requirement to action under Wis. Stat. § 32.05(11) "would hinder a legislative preference for a prompt resolution" of condemnation award appeals. Town of Burke, 225 Wis. 2d at 625. In this regard, we note that § 32.05(11) requires that condemnation appeals "shall have precedence over all other actions not then on trial" in the circuit court, which seemingly evinces a legislative preference for promptly resolving disputes over the adequacy of condemnation awards.

¶ 12. We agree with the City, however, that unlike statutory actions having ninety-day filing deadlines, to which we have concluded the requirements of Wis. Stat. § 893.80(1) do not apply, the two-year period for commencing a Wis. Stat. § 32.05(11) appeal can easily be met by a landowner who has also complied with the requirements of § 893.80(1). Compliance with § 893.80(1) may consume up to eight months but permits a timely condemnation appeal to be taken in the circuit court. Even if a municipality forces a shortening of the limitation period by serving a notice of disallowance of the claim, see § 893.80(lg), the fact that a condemnation appeal might have to be commenced sooner than the two years permitted under § 32.05(11) cannot be said to "hinder a legislative preference for a prompt resolution" of the condemnation claim.

¶ 13. We conclude, however, that hindering a legislative preference for "promptness" is not the only way in which the requirements of Wis. Stat. § 893.80(1) might interfere with legislative purposes. The second Town of Burke factor may properly be read to require a court to inquire into the legislative intent underlying a particular statutory procedure. The inquiry is to determine whether some legislative goal, be it prompt resolution or another purpose, will be thwarted by requiring compliance with § 893.80(1) as a precondition to commencing an action under the statute.

¶ 14. The owners point out several conflicts between the procedures of Wis. Stat. § 32.05(11) and those of Wis. Stat. § 893.80(1). They note first that other interested parties must join an appeal of a condemnation award within ten days of receiving notice of the original appellant's appeal or lose their ability to appeal their awards. If another potential appellant has not already filed a notice of claim under § 893.80(1), or has done so but the municipality has not actually or constructively disallowed it, that party may not be able to join the appeal within the ten-day period allowed. Such a party would thus be precluded from appealing the amount of compensation awarded for its interest in the condemned parcel. (See footnote 6.)

¶ 15. The owners' premise is that if a notice of claim were required of the original appellant, one would also be required of each additional appellant who joins the action under Wis. Stat. § 32.05(11). See City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 620, 575 N.W.2d 712 (1998) (concluding that "compliance with [Wis. Stat.] § 893.80(l)(b) is a necessary prerequisite to all actions brought against the entities listed in the statute . . . whether brought as an initial claim, counterclaim or cross-claim"). The City asserts that the City of Racine holding regarding counter- and cross-claims has no bearing on whether additional parties may intervene in a condemnation appeal. In the City's view, although the original appellant must comply with § 893.80(1), additional appellants in the same action need not do so, thus avoiding the statutory conflict the owners' believe exists. Again, we disagree.

¶ 16. The only reason for additional parties who receive a part of a condemnation award to join an appeal under Wis. Stat. § 32.05(11) is to allow them to seek additional compensation for their own interests in the condemned parcel. Thus, any additional appellants will necessarily lodge claims against the municipality that are distinct from and in addition to the claim of the original appellant. If, as the City maintains, the original appellant must comply with Wis. Stat. § 893.80(1) in order to protect the municipality's interests, additional parties making additional claims should also have to comply with the notice of claim statute under the rationale of City of Racine.

¶ 17. The language of Wis. Stat. § 32.05(11), quoted in footnote 6, plainly communicates the legislature's intent that (1) there be only one appeal for each condemned parcel, and (2) all parties having an interest in the parcel (and the attendant condemnation award) be both permitted and required to join the single appeal. By so providing, the legislature has sought to achieve both efficiency and consistency in resolving compensation disputes between a condemnor and multiple parties having an interest in the same parcel. As we have discussed, it would often be impossible for those holding an interest in a condemned parcel to comply with Wis. Stat. § 893.80(1) in time to join an appeal under § 32.05(11) within the ten days allowed for doing so. We conclude that applying § 893.80(11) to condemnation appeals would thus "hinder a legislative preference" for efficiency and consistency in resolving compensation disputes. See Town of Burke, 225 Wis. 2d at 625

¶ 18. The owners also point to other alleged inconsistencies between the two statutes. For example, the owners assert a conflict between the interest and cost-shifting provisions of Wis. Stat. § 893.80(2) and those under Wis. Stat. § 32.05(ll)(a) and (b), and § 32.28, which apply to appeals of condemnation awards. We agree that the provisions are inconsistent in that, if a municipality were to tender a partial payment of a claim under § 893.80(2), and the appellant under § 32.05(11) recovered an amount which exceeded the original condemnation award but not the additional payment, liability for interest, costs and the appellant's "litigation expenses" would be uncertain.

¶ 19. We are not convinced, however, that a judicial resolution of these two, arguably conflicting provisions would not be possible, just as similar conflicts between other statutory remedial provisions have been resolved. See, e.g., Upthegrove Hardware, Inc. v. Pennsylvania Lumbermans Ins. Co., 152 Wis. 2d 7, 13-14, 447 N.W.2d 367 (Ct. App. 1989) (concluding that interest assessment under offer-of-settlement statute supplants interest due under statute assessing interest on overdue insurance claims). Rather, we conclude that to the extent that Wis. Stat. § 32.05(1 l)(a) and (b) and § 32.28 are in conflict with Wis. Stat. § 893.80(2), the conflict does not implicate the statutory procedures for bringing an appeal under § 32.05(11) or the legislative purposes underlying those procedures. We therefore rely on the more compelling conflict with § 893.80(1) presented by the requirements of § 32.05(11) for all interested parties to join in one appeal.

¶ 20. We conclude that both of the first two Town of Burke factors support a conclusion that Wis. Stat. § 893.80(1) does not apply to appeals of condemnation awards under Wis. Stat. § 32.05(11) because: (1) the latter statute provides a specific statutory scheme governing condemnation appeals, and (2) the notice of claim requirement under § 893.80(1) is inconsistent with the provisions under § 32.05(11) by which additional interested parties must join an existing appeal. We thus turn to the final factor — "whether the purposes for which § 893.80(1) was enacted would be furthered by requiring that a notice of claim be filed." Town of Burke, 225 Wis. 2d at 625.

¶ 21. The City argues that Wis. Stat. § 893.80(1) serves important purposes in the present context, and a conclusion it does not apply would lessen the protection for a municipality's interests the legislature intended. The City points out that the pre-appeal procedures of Wis. Stat. § 32.05 do not guarantee that it will have all of the facts necessary to evaluate a landowner's claim for additional compensation. Thus, according to the City, it is in a more vulnerable position than when defending a decision to deny a parcel tax exempt status or annex land. In the City's view, the filing of a claim which includes "an itemized statement of the relief sought" under § 893.80(l)(b) is therefore essential to enable a municipality to evaluate a specific claim of under-compénsation. The City asserts that without notice of the amount sought, it can neither properly assess the likelihood of success in defending the original condemnation award before a judge or jury, nor weigh the potential of incurring not only liability for additional compensation and interest but for the landowner's litigation expenses as well. See Wis. Stat. § 32.28.

¶ 22. In support of its contention, the City points out that, as a condemnor, it is required to obtain an appraisal of the condemned parcel and to provide a copy of it to landowners. Wis. Stat. § 32.05(2). Although landowners have a statutory right to obtain a separate appraisal and to have the condemnor pay for it, id., the owners in this case did not avail themselves of that right. Accordingly, the owners were under no obligation to divulge the results of any appraisal of the condemned parcel they may have obtained before filing their appeal. The City also notes that a prospective condem-nor is required to attempt to negotiate a price for the parcel to be acquired, and it must submit a "jurisdictional offer," but a landowner is under no obligation to participate in negotiations or to respond to the jurisdictional offer in any way. See § 32.05(2a) and (3).

¶ 23. Thus, according to the City, a landowner's compliance with Wis. Stat. § 893.80(1) is necessary in order to allow the City to "evaluate a claim and its potential financial impact on the City without the added financial burden of litigation." See City of Waukesha, 184 Wis. 2d at 198 (The purpose of the notice of claim statute is to provide a municipality the opportunity to compromise and settle claims without costly and time-consuming litigation.). Additionally, the City notes that the notice of claim procedure under § 893.80 would enable it to limit its exposure to payment of interest and the landowner's litigation expenses by offering payment of some or all of the additional compensation requested. See § 893.80(2).

¶ 24. Requiring a landowner whose property has been condemned to comply with Wis. Stat. § 893.80(l)(b) would undoubtedly benefit municipal condemnors by forcing landowners to disclose the specific amount of additional compensation they believe to be due prior to commencing an appeal. If the legislature had intended to require a landowner to commit to a figure in advance of a condemnation appeal, however, it could have required a landowner to proceed as those seeking relocation damages must do. See Wis. Stat. § 32.20 (requiring an itemized claim for relocation damages to be filed with the condemnor, and allowing the condemnor ninety days to allow the claim, before a claimant may file suit). We agree with the owners that the absence of a similar requirement in Wis. Stat. § 32.05 is an indication that the legislature did not intend to make pre-appeal disclosure of the sum sought a prerequisite for commencing appeals of condemnation awards. By holding § 893.80(1) applicable to appeals of condemnation awards under § 32.05(11), we would place an obligation on landowners which the legislature has chosen not to place on them under § 32.05.

¶ 25. Although nothing in Wis. Stat. § 32.05 requires a landowner to disclose to a condemnor all (or even any) information it may possess regarding the value of a condemned parcel, a condemning municipality cannot claim to lack any knowledge of information pertinent to a landowner's claim for additional compensation. Appeals under § 32.05(11) do not come upon a municipality "out of the blue." A condemning municipality is certainly aware that, when a landowner does not accept its jurisdictional offer, litigation to obtain additional compensation is a distinct possibility. Furthermore, the statutory obligations to have the property appraised and to attempt negotiations with the landowner prior to making a jurisdictional offer permit a condemnor to become apprised of a reasonable range of value for the property being acquired. Although appraising real estate is an inexact science, the value of a given parcel is not without limit. If a condemnor has undertaken in good faith its appraisal, negotiation and jurisdictional offer obligations, it will be well aware of the potential for additional compensation an owner might realistically be able to prove. In short, a condemnation appeal under § 32.05(11) is not like a suit to recover damages for injuries sustained in a slip-and-fall on municipal property, of which, absent notice under Wis. Stat. § 893.80(1), a municipality may know absolutely nothing prior to suit.

¶ 26. We therefore agree with the owners that it is not necessary to apply the notice of claim requirement under Wis. Stat. § 893.80(1) to condemnation award appeals in order to accomplish the informational purposes the legislature intended. Applying the requirement to Wis. Stat. § 32.05(11), moreover, would thwart what appear to be equally compelling legislative purposes underlying the provisions of § 32.05.

¶ 27. The statutory scheme under Wis. Stat. § 32.05 for compensating landowners and permitting them to appeal their awards is designed, at least in part, to ensure that a condemnor pays a fair price for property it acquires by condemnation. See TFJ Nominee Trust v. DOT, 2001 WI App 116, ¶ 10, 244 Wis. 2d 242, 629 N.W.2d 57, review denied, 2001 WI 117, 247 Wis. 2d 1035, 635 N.W.2d 783 (Wis. Sep. 19, 2001) (No. 00-2099) ("Because the power of eminent domain under Wis. Stat. ch. 32 is extraordinary, we strictly construe the condemnor's power under Wis. Stat. § 32.05, while liberally construing provisions favoring the landowner, including available remedies and compensation."). If we were to conclude that the requirements of Wis. Stat. § 893.80(1) must be layered onto the provisions of § 32.05, the incentives for a condemnor to tender fair compensation might well be disrupted. That is, a municipal condemnor might find it expedient to "lowball" jurisdictional offers in the hopes that many landowners will not contest their awards, and the claims of those who do could be compromised and settled after a notice of claim is filed, thereby avoiding the potential adverse consequences of defending an appeal.

¶ 28. Accordingly, we conclude that the purposes underlying Wis. Stat. § 893.80(1) do not require its application to condemnation appeals under Wis. Stat. § 32.05(11). By undertaking the condemnation process, a municipality not only acquires notice of a potential claim against it regarding the value of the property taken, it actually creates the claim by acting in the first instance to acquire the property. Provided a municipality discharges in good faith its obligations as condemnor under § 32.05, it will learn the amount of compensation reasonably due a landowner, and it will have the opportunity to minimize the possibility of litigation through negotiation and the making of a fair jurisdictional offer. Although making the notice of claim statute applicable to § 32.05(11) would provide procedural benefits to a condemning municipality, we cannot conclude the legislature intended it to have them. Rather, to the extent a landowner whose property has been taken for public purposes enjoys some procedural advantages under §32.05 which other litigants seeking redress from a municipal entity do not, we conclude that is what the legislature intended.

CONCLUSION

¶ 29. For the reasons discussed above, we reverse the appealed order and remand to the circuit court for further proceedings on the owners' appeal under Wis. Stat. § 32.05(11).

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

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

       The owners assert that the supreme court in State ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996), withdrew the emphasized language from DNR v.

        City of Waukesha because it was "too broad." The court said this in Auchinleck-. "That particular language, to the extent it is interpreted as applying to open records and open meetings actions, is too broad and is withdrawn." Auchinleck, 200 Wis. 2d at 597. This qualified withdrawal, however, may be read to apply only to the exception the court recognized in Auchinleck for "open records and open meetings actions." See City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 622-23 n.3, 575 N.W.2d 712 (1998) (discussing the quoted sentence from Auchinleck and explaining that the "holding of Auchinleck narrowly applies to the statutes at issue in that case"). We continue to read DNR v. City of Waukesha as stating a general rule that the Wis. Stat. § 893.80(1) notice requirement applies to all actions against a municipality except for certain statutory actions excepted from the rule. (See footnote 3, below.)

        See, e.g., Gillen v. City of Neenah, 219 Wis. 2d 806, 843, 580 N.W.2d 628 (1998) (Abrahamson, C.J., concurring) ("In short, 'all actions' means all actions except when the court says otherwise."); Gamroth v. Village of Jackson, 215 Wis. 2d 251, 258, 263, 571 N.W.2d 917 (Ct. App. 1997) ("It is apparent that the supreme court has adopted a case-by-case approach to resolving whether a statute with specific enforcement methods and time limits will trump § 893.80, Stats."; "We are sure that the court of appeals and supreme court will recognize many more such exceptions to DNR.").

         See Town of Burke v. City of Madison, 225 Wis. 2d 615, 625-26, 593 N.W.2d 822 (Ct. App. 1999); Gamroth, 215 Wis. 2d at 262.

        See Little Sissabagama Lake v. Town of Edgewater, 208 Wis. 2d 259, 266, 559 N.W.2d 914 (Ct. App. 1997) (noting that compliance with Wis. Stat. § 893.80 can create a delay of "as long as 240 days" before an action may be filed) (footnote omitted).

       The relevant portion of Wis. Stat. § 32.05(11) reads as follows:
      Where one party in interest has appealed from the award, no other party in interest who has been served with notice of such appeal may take a separate appeal but may join in the appeal by serving notice upon the condemnor and the appellant of that party's election to do so. Such notice shall be given by certified mail or personal service within 10 days after receipt of notice of the appeal and shall be filed with the clerk of court. Upon failure to give such notice such parties shall be deemed not to have appealed. The appeal shall not affect parties who have not joined in the appeal as herein provided.

       The City also argues that the owners' reliance on a conflict between the requirements of Wis. Stat. § 893.80(1) and the ability of additional parties to join an appeal is irrelevant in this case because no additional parties sought to join the owners' appeal. We disagree. The present analysis is an effort to ascertain legislative intent — did the legislature intend the requirements of § 893.80(1) to apply to appeals of condemnation awards under Wis. Stat. § 32.05(11)? In answering this question, we must look to the entire procedural framework of §' 32.05(11) to see if the notice of claim requirement would interfere with the legislature's purposes in enacting the condemnation award appeal procedures.

       The owners also note that an informational pamphlet prepared by the Wisconsin Department of Commerce does not inform landowners that they must comply with Wis. Stat. § 893.80(1) before commencing an appeal of a condemnation award under Wis. Stat. § 32.05(11). See § 32.26(6) (requiring Department of Commerce to prepare pamphlets "in simple language and in readable format describing the eminent domain laws of this state .. . and the rights of property owners and citizens affected by condemnation"). The owners thus claim that compliance with § 893.80(1) would conflict with a legislative directive that landowners be properly and clearly informed of their rights and remedies under Wis. Stat. ch. 32. See Wis. Stat. § 32.05(2a) (requiring condemnors to provide landowners with copies of the pamphlets prepared under § 32.26(6)). The failure of the department to inform landowners of a necessity to comply with the notice of claim statute is certainly an indication that the departnient does not read the statutes to so require. We do not consider the department's apparent interpretation, however, to rise to the level of an "inherent conflict" between the two statutes.

        See Little Sissabagama Lake, 208 Wis. 2d at 268; Town of Burke, 225 Wis. 2d at 626.

       The City notes that the author of a publication on Wisconsin condemnation practice recommends that landowners who believe negotiations with a condemnor are unlikely to achieve a "satisfactory result" should forego seeking reimbursement for any appraisals they obtain in order to be better positioned for the anticipated litigation. See Benjamin South-wick, Eminent Domain PRACTICE in Wisoonsin 52 (1988).


author: DYKMAN, J.

text:
    Ann M. Masko, Plaintiff-Appellant, v. City of Madison, James M. Braun, and Transit Mutual Insurance Corporation of Wisconsin, Defendants-Respondents, State Farm Insurance Company and Group Health Cooperative of South Central Wisconsin, Subrogated-Defendants.
    Court of Appeals

      No. 02-2267.

      Submitted on briefs February 7, 2003.

    — Decided May 8, 2003.

    2003 WI App 124
    (Also reported in 665 N.W.2d 391.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Ann M. Masko, pro se.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Edith F. Merila and Robert C. Procter of Axley Brynelson, LLP, Madison.

      Before Vergeront, EJ., Dykman and Lundsten, JJ.
   DYKMAN, J.

¶ 1. Ann Masko appeals from an order granting summary judgment in favor of the City of Madison and its insurer. Masko had sought damages for physical injuries and property damage arising out of an automobile accident involving her vehicle and a city bus. We agree with the trial court that the issue of liability was fully litigated in a prior municipal court proceeding. As a result, the doctrine of issue preclusion bars Masko's civil action. Accordingly, we affirm.

BACKGROUND

¶ 2. Masko was in an accident involving her minivan and a Madison Metro bus. She received a citation for making an improper lane change in violation of Wis. Stat. § 346.13(1) (2001-02). She contested the citation in municipal court, appearing pro se. At the hearing, Masko testified that the bus had moved into her lane and struck her vehicle. The bus driver testified that Masko's vehicle had attempted to move into the bus's lane, thereby causing the accident. A bus passenger who witnessed the accident offered an account similar to that of the bus driver. The municipal court issued a written decision finding that the bus driver's version of events was more credible than Masko's, and therefore the City had proved a violation of § 346.13(1) by clear, satisfactory and convincing evidence.

¶ 3. Masko requested a trial de novo of the municipal court decision but before the trial was held she obtained counsel and withdrew her request. Instead, she commenced this civil action against the City in circuit court. In her complaint, Masko alleged that she sustained personal injuries and damage to her vehicle as the result of the Madison Metro bus negligently striking her minivan. The City moved for summary judgment arguing that the issue of liability had been litigated in the municipal court proceeding and therefore issue preclusion barred Masko's civil suit for damages. The trial court granted the City's motion and dismissed Masko's complaint. Masko appeals.

DISCUSSION

¶ 4. The doctrine of issue preclusion forecloses relitigation of an issue that was litigated in a previous proceeding involving the same parties or their privies. Reuter v. Murphy, 2000 WI App 276, ¶ 7, 240 Wis. 2d 110, 622 N.W.2d 464. Preclusion derives from the assumption that, in fairness to the defendant, there is a point at which litigation involving the particular controversy must end. Lindas v. Cady, 175 Wis. 2d 270, 279, 499 N.W.2d 692 (Ct. App. 1993), aff'd as modified by 183 Wis. 2d 547, 515 N.W2d 458 (1994). Thus, the doctrine may apply even if the cause of action in the second lawsuit is different from the first. Dane County v. Dane County Union Local 65, 210 Wis. 2d 267, 278, 565 N.W.2d 540 (Ct. App. 1997). However, the issue must have been "actually litigated" in the prior proceeding and the application of the doctrine must be consistent with fundamental fairness. Jensen v. Milwaukee Mut. Ins. Co., 204 Wis. 2d 231, 237, 554 N.W.2d 232 (Ct. App. 1996). The party seeking to use issue preclusion bears the burden of demonstrating that the doctrine should be applied. State ex rel. Flowers v. H&SS Dept., 81 Wis. 2d 376, 389, 260 N.W.2d 727 (1978).

¶ 5. In Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 594 N.W.2d 370 (1999), the supreme court established a two-step analysis for issue preclusion. The first step is whether a litigant is in privity or has sufficient identity of interest with the party to the prior proceeding. Obviously, this is only a question when issue preclusion is used against a nonparty to the former action. Whether privity exists is a question of law and is reviewed de novo. Id. at 224.

¶ 6. The second step addresses whether application of issue preclusion is consistent with fundamental fairness. The relevant factors for the court to consider were identified in Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993). They are:

(1) could the party against whom preclusion is sought, as matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?

Id. at 688-89. Determination of these factors is generally within the trial court's discretion. However, certain of these factors, such as whether the party could have obtained review of the prior judgment, present questions of law and are subject to de novo review. Paige K.B., 226 Wis. 2d at 225. Thus, evaluating whether applying issue preclusion is consistent with fundamental fairness presents a mixed question of fact and law in which legal issues predominate. Id.

¶ 7. Because Masko was the defendant in the municipal court proceeding and is the plaintiff here, the parties are identical. Therefore we turn directly to the second step, whether application of issue preclusion comports with the principles of fundamental fairness. Masko contends that the trial court did not adequately address the third and fifth Michelle T. factors — quality of the earlier proceedings and considerations of individual circumstances and public policy — when it concluded that issue preclusion barred her suit against the City.

¶ 8. However, before discussing the third and fifth factors, we briefly address the issue preclusion factors that are not in dispute. The first factor favors issue preclusion. Masko had the opportunity to seek review of the municipal court's decision. In fact, she requested a trial de novo, but withdrew that request before filing her complaint in this action. The second factor, whether the issue is a question of law involving distinct claims or intervening shifts in the law, also favors issue preclusion. In the municipal court, the issue was whether Masko had attempted an improper lane change and caused the accident. In this action, determining whether the City is liable for Masko's damages also depends upon whether Masko or the bus driver caused the accident. The issue in both actions is the same. Under the fourth factor it is inappropriate to apply issue preclusion if the burden of proof in the first proceeding was lower than in the second. Jensen, 204 Wis. 2d at 239. Here the burden of proof in the municipal trial was "clear, satisfactory and convincing" evidence. This is a higher standard than the preponderance of the evidence that Masko would have to show to recover damages from the City. Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis. 2d 650, 657-58, 529 N.W.2d 905 (1995). Because the burden of proof is actually less onerous in the second proceeding, the fourth factor favors applying issue preclusion.,

¶ 9. Next, we consider whether the third and fifth factors weigh in favor of barring Masko's claim. In arguing that the trial court failed to give sufficient weight to the differences between municipal court and circuit court in the quality and extensiveness of the proceedings, Masko points to her lack of counsel in the municipal court as a critical factor. Because she appeared pro se to contest the traffic citation, Masko asserts that "I was extremely uncomfortable in the simultaneous role of counsel and defendant. Despite my best efforts, I could not be expected to cross-examine witnesses as extensively as an experienced attorney advocating my best interests." Masko also stresses that because municipal cases are tried before the court, she was deprived of the opportunity to present her case to a jury. In contrast, in her civil action against the City, she has the right to, and has requested, a jury as the fact finder.

¶ 10. The differences cited by Masko are not sufficient to persuade us that precluding her civil suit was fundamentally unfair. We have reviewed the transcript of the municipal court trial and agree with the trial court that Masko, although obviously unfamiliar with the technicalities of court procedure, was able to fully litigate the issue of liability. At the summary judgment hearing, the trial court commented that "Even the record establishes that you did a good job in municipal court. You lost, but I don't think the facts were on your side, or at least arguably they weren't on your side because you lost, but you had total, full opportunity to completely litigate the liability issue." Our review of the record confirms the trial court's conclusion.

¶ 11. Masko was present for the entire trial, presented exhibits and testified as to her version of events. She cross-examined the bus driver, the passenger and the police officer who responded to the accident regarding the positions of the vehicles before, during and after the impact. She submitted photographs of the location of the accident and of the damage to her vehicle and explained to the court how the pictures supported her description of the accident. In her closing argument, she cogently addressed the evidence and argued that it was the bus that had entered her lane and struck her vehicle. Thus, apart from asserting that an attorney would have conducted a more thorough cross-examination, Masko does not identify any particular facts or arguments that were not presented to the municipal court. While an attorney might have been more adept at eliciting testimony, there is no basis in the record for the conclusion that Masko failed to fully litigate the issue of whether she or the bus driver made the improper lane change. Accordingly, we are not convinced that lack of legal counsel at a prior adjudication is sufficient to avoid issue preclusion at a later proceeding.

¶ 12. Nor does Masko's assertion that she was denied a jury persuade us that issue preclusion should not be applied in this case. After receiving the municipal court's decision, Masko requested a de novo jury trial in circuit court pursuant to Wis. Stat. § 800.14(4). She withdrew this request five days before the scheduled trial was to begin. Masko had the benefit of counsel when she made the decision to withdraw her request. Thus Masko was not deprived of a jury trial in the prior proceeding. Rather, she chose to forgo the opportunity to present her case to a jury. Under these facts, when a party has the option of a jury trial hut decides against it, the qualitative differences between a bench trial and a jury trial are not sufficient to render the application of issue preclusion unfair.

[113

¶ 13. With respect to the fifth factor, Masko has not presented any compelling reason why public policy or individual circumstances would render the application of issue preclusion to be fundamentally unfair. Masko argues that she lacked the incentive to obtain a full and fair adjudication in the first proceeding because she was completely unaware of the effect the municipal court decision could have in a subsequent effort to recover damages from the City. Therefore, she contends that allowing issue preclusion to bar her claim now is unfair. We disagree.

¶ 14. The municipal court informed Masko at the beginning of the trial that:

You also understand that if I find you guilty, that guilty finding could be used against you if there's a claim for any damages or injury resulting from this incident. In addition, any testimony from today, whether you win or lose, could be used against you in that case as well. You understand that?

Masko answered, "I understand." Thus, while Masko may not have been aware of issue preclusion as a legal doctrine, she knew from the municipal court's admonishment that an adverse result could have repercussions in subsequent proceedings.

¶ 15. Issue preclusion requires that "one must have had a fair opportunity procedurally, substantively and evidentially to litigate the issue before a second litigation will he precluded." Dane County, 210 Wis. 2d at 278. We are satisfied that the municipal court trial afforded Masko that opportunity. She actively participated in the prior proceeding and, despite her attempts to impeach the testimony of the other witnesses, the judge found the bus driver's account to be more credible than Masko's. Further, she elected not to pursue a new trial in circuit court where she would have had the right to a jury. Nor does it serve the public interest to allow relitigation of an issue on the grounds that the first attempt was unsuccessful because the party appeared pro se but now, having retained counsel, the party should be allowed to try for a better outcome. The interests of judicial efficiency and protecting parties against repetitious litigation outweigh Masko's interest in relitigating the liability issue that was already determined in municipal court. We conclude that the trial court properly determined that issue preclusion applied and that barring Masko's claim does not contravene principles of fundamental fairness.

By the Court. — Order affirmed.

       Wisconsin Stat. § 346.13(1) provides: "The operator of a vehicle shall drive as nearly as practicable entirely within a single lane and shall not deviate from the traffic lane in which the operator is driving without first ascertaining that such movement can be made with safety to other vehicles approaching from the rear."
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The parties have not raised the issue of the effect of Wisconsin's comparative negligence statute, Wis. Stat. § 895.045. We therefore do not consider or discuss what effect, if any, that statute would have here, or in another case.