author: CURLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Kevin Brown, Defendant-Appellant.
    Court of Appeals

      No. 2005AP361.

      Submitted on briefs February 7, 2006.

      Decided February 14, 2006.

    2006 WI App 41
    (Also reported in 711 N.W.2d 708.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Eileen W. Pray, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Kevin Brown appeals the order denying his motion seeking immediate release from custody from a four-year sentence which went into effect after the revocation of his probation in 1995. Brown claims that pursuant to Wis. Stat. § 973.15(5) (2003-04), his state sentence should be credited with the time he served on two later federal sentences. We agree and remand to the trial court for Brown's immediate release, as Brown's federal sentences were longer in length than his state sentence.

I. Background.

¶ 2. In March 1990, Brown was charged with possession of a controlled substance with intent to deliver, contrary to Wis. Stat. §§ 161.16(2)(b)l. and 161.41(lm)(c)3. (1987-88). In January 1992, pursuant to plea negotiations, Brown pled guilty to possession of a controlled substance with intent to deliver, but with a reduced maximum penalty of not more than five years of incarceration, and a fine of not less than $1,000, but not more than $100,000. A presentence investigation was ordered and on March 18, 1992, Brown was sentenced to four years of incarceration. However, this sentence was stayed and he was placed on probation for four years with various conditions, including serving nine months in the House of Correction with work release privileges. The work release privileges were later cancelled after Brown committed several violations at the House of Correction. Ultimately, Brown completed his sentence and he was placed on probation.

¶ 3. Brown's probation was revoked on July 17, 1995, for numerous violations and he was ordered to serve his sentence at the Dodge Correctional Institution. Although Brown was ordered to be sent to Dodge Correctional Institution to serve his sentence, he apparently never arrived there, as he was turned over to federal authorities and was convicted of two federal drug dealing charges on November 3, 1995. On these federal charges, Brown was originally sentenced to two 235-month periods of incarceration, to be served concurrently. At some point, Brown's sentence was reduced to two sentences of 130 months, to be served concurrently, due to information he provided to the federal authorities. Brown was incarcerated and remained in the federal prison system until he completed his federal sentence, and he was then transferred to state authorities sometime in 2004.

¶ 4. For much of the time Brown was serving his federal sentence, he believed that he was receiving credit towards his state sentence because no Wisconsin de-tainer request was ever filed until six years later, on April 5, 2001, despite inquiring letters sent to the Wisconsin authorities. After being notified of the detainer, Brown, acting pro se, wrote to the Department of Corrections seeking credit towards his Wisconsin sentence for the time he spent in federal custody. He was advised that he would not receive any credit because the federal sentence was for "a separate offense not connected to [his] Wisconsin sentence." The letter explaining the Department's reasoning cited Wis. Stat. § 973.155 as authority for its position.

¶ 5. After Brown was unable to administratively secure a credit towards his state sentence, he filed a series of motions in the trial court seeking to obtain credit on his state sentence for the time he served in federal custody. In July 2001, he wrote to the trial court requesting a modification of his sentence. His motion was denied. In its order denying his motion, the trial court wrote that no new factor had been presented and noted that, at the time of sentencing, the trial court intended that there be a separate punishment for his earlier offense, as the trial court ordered the sentence to be served consecutively to any other sentences. In February 2003, acting pro se, Brown filed a motion seeking sentencing credit. On February 27, 2003, this motion was also denied, perhaps because Brown never argued the existence of Wis. Stat. § 973.15(5). The trial court, citing Wis. Stat. § 973.155, found that:

Although revocation in the Wisconsin case was triggered by the defendant's arrest in the federal matter, the defendant's incarceration on the federal sentence was for a separate offense unrelated to the Wisconsin sentence. The defendant is not entitled to credit in the Wisconsin case for time spent in federal custody.

¶ 6. Concerning his claim that his transfer to the federal prison system before service of his earlier state sentence was erroneous, the trial court remarked that "[these] are matters with which the court does not become involved. He is obliged to address these matters to the Department of Corrections." Brown attempted to appeal the trial court's ruling, but his appeal was dismissed for failure to pay the filing fee while Brown was attempting to secure appellate counsel.

¶ 7. On December 13, 2004, Brown, now acting through appointed counsel, filed a Wis. Stat. § 974.06 motion asking for his immediate release from custody. The trial court again denied the motion, believing both that the previous trial court's order denying the motion was "the law of the case," and that Brown had abandoned his appeal of the earlier order denying his motion, therefore waiving his right to have the matter heard. The trial court also suggested to Brown that relief could be obtained only from the Department of Corrections. This appeal follows.

II. Analysis.

¶ 8. Brown submits that the trial court erred in denying his motion because the trial court incorrectly determined both that the prior trial court's decision denying his request for sentence credit was the "law of the case," and in concluding that Brown waived this issue because the prior appeal was dismissed. The State counters that Brown is not entitled to be released because Wis. Stat. § 973.10(2) (b) states that a probationer's stayed sentence does not begin until the probationer enters prison. The State concedes the existence of Wis. Stat. § 973.15(5), but maintains a prisoner is eligible for this set-off only when the offender is in prison, and Brown never entered a Wisconsin prison. Further, the State argues that Wis. Stat. § 973.155(1) does not permit Brown to receive credit towards the prior Wisconsin sentence for the federal sentences because he was not sentenced "in connection with the course of conduct for which sentence was imposed." We disagree.

¶ 9. We review questions of statutory interpretation de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). In State v. Peters, 2003 WI 88, ¶ 14, 263 Wis. 2d 475, 665 N.W.2d 171, the supreme court explained the following rule of statutory interpretation: "If the language of a statute is clear on its face, we need not look any further than the statutory text to determine the statute's meaning." See Bruno v. Milwaukee County, 2003 WI 28, ¶¶ 18-22, 260 Wis. 2d 633, 660 N.W.2d 656. "When a statute unambiguously expresses the intent of the legislature, we apply that meaning without resorting to extrinsic sources" of legislative intent. State ex rel. Cramer v. Wisconsin Ct. App., 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591. "Statutory language is given its common, ordinary and accepted meaning." Peters, 263 Wis. 2d 475, ¶ 14.

¶ 10. We first examine the trial court's reliance on the earlier order and its determination that it was "the law of the case." Citing Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), Brown argues:

The law of the case doctrine is inapplicable. It is a "longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal."

We agree. There is no "law of the case" to this legal dispute. Next, we also conclude, contrary to the trial court's belief, that Brown did not waive his right to have this matter heard when his appeal was dismissed for failure to pay the filing fee. As noted, Brown's right to appeal the 2003 order was extended once the proper documentation made its way to this court. Rather than pursue the appeal of the 2003 order, Brown elected to file a motion seeking his release. Thus, no waiver occurred.

¶ 11. Addressing the issue of sentencing credit, unlike the State, we do not find either Wis. Stat. §§ 973.10(2)(b) or 973.155 dispositive. Whether Brown entered a Wisconsin prison before starting his federal sentences, or whether his federal sentences "were in connection with the course of conduct for which sentence was imposed" is not the correct test. The question to be answered is whether Brown falls within the ambit of Wis. Stat. § 973.15(5), which is the specific statute governing this case. We conclude that he does. Section 973.15(5) reads: "A convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction." Here, there can be no argument that Brown was a "convicted offender" at the time the State made him available to the federal courts. Indeed, he had been convicted several years earlier, and when released to the federal authorities, his probation had been revoked and he was ordered to serve a four-year sentence. Little is known from the record about the procedure that led to Brown's being made available to federal authorities, or why he was not returned to Wisconsin authorities to begin his earlier sentence, except that Brown was arrested by City of Milwaukee police officers on the new charges. Therefore, § 973.15(5) dictates that Brown be given sentencing credit for the "duration of custody in the other jurisdiction." The statute is clear and unambiguous. Accordingly, Brown is entitled to have his state sentence credited for the time he was serving the federal sentences. Because the federal sentences were longer in duration than the state sentence, Brown is entitled to be immediately released. Accordingly, the order of the circuit court is reversed and this cause is remanded for Brown to be given credit under § 973.15(5).

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Our order assumes that Brown has completed his federal sentence and is currently being held only on the shorter state sentence. While the parties seem to agree about the underlying facts, no criminal complaint could be found in the record, and no official documents could be found to establish exactly when Brown completed his federal sentence and began serving his state sentence.

       It is apparent from a reading of the order that the trial court thought it had made the state sentence consecutive to the federal sentences. This was impossible, as the federal convictions did not occur until years later. See also Wis. Stat. § 973.15(2)(a).

       This court later extended the deadline to permit Brown to appeal the February 27, 2003, order. Instead, Brown elected to file a motion in the trial court seeking his immediate release.

       The State's argument is somewhat confusing. At one point in the briefs, the State writes that "the time that Brown wants credited to his imposed and stayed sentence has already been credited to his federal sentence," and later writes, "Here, Brown's requested time has already been credited to his previous unrelated sentence." If what the State is suggesting is that the federal courts gave Brown credit for the previous state sentence, no proof of that could be located in the record. On the contrary, it is clear that Brown's federal sentences were reduced because of the valuable information he provided federal authorities.

       The State's position, that Brown must have physically crossed the threshold of Dodge Correctional Institute in order to be eligible for sentencing credit under Wis. Stat. § 973.15(5), is not only harsh and unjust, as Brown had no control over where he was housed, but, more importantly, is a total misreading of the statute, which merely requires that the person be "[a] convicted offender who is made available to another jurisdiction." There is no requirement in the statute that the person must have entered the state prison in order to trigger his or her entitlement to credit under § 973.15(5).

       An alternate reason why Brown is entitled to sentencing credit is the wording of the order revoking his probation. The administrative law judge pronounced that:
      It is ordered that the probation of Kevin Brown be revoked, and that he be credited with jail time for 33 days pursuant to court order, from March 25, 1992, to October 22, 1992 (served as a condition of probation), and from April 19,1995, until his receipt at the institution.

      (Emphasis added.) According to the order, Brown was to be given sentencing credit from April 19,1995, until his receipt at the institution. As a result, all of the time he served on his federal sentences would fall within the sentencing credit time frame.


source: Caselaw Access Project

author: WEDEMEYER, EJ.

license: Public Domain

text:
    Ronald W. Morters, Plaintiff-Appellant, v. Aiken & Scoptur, S.C., Timothy J. Aiken, Paul J. Scoptur and Kelly I. Centofanti, Defendants-Respondents.

    Court of Appeals

      No. 2005AP703.

      Submitted on briefs January 3, 2006.

      Decided February 14, 2006.

    2006 WI App 46
    (Also reported in 712 N.W.2d 71.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ronald W. Morters, pro se, of Waukesha.

      On behalf of the defendants-respondents, the cause was submitted on the brief of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C. by Paul R. Erickson of Milwaukee.
    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review denied 6-14-06.

       Petition to cross review denied 6-14-06.

   WEDEMEYER, EJ.

¶ 1. Ronald W. Morters appeals, pro se, from a judgment ordering him to pay $27,943.11 in frivolous costs to Aiken & Scoptur, S.C., et al. Morters contends that the trial court erred in including in that award $17,820.02, which was incurred in the appellate proceedings of this case. Morters also contends that Aiken & Scoptur failed to mitigate its damages. Because we conclude that the trial court had no authority to make a finding that the appellate proceeding in this case was frivolous, or award costs related to the appellate proceedings without a directive from this court to do so, we reverse that portion of the judgment. Because we conclude that the trial court did not err in its assessment of the costs and fees related to the trial court proceedings, we affirm that portion of the judgment. We also affirm the trial court's determination on the issue of mitigation.

BACKGROUND

¶ 2. This case has generated a series of litigation, including appeals. The factual background has been fully set forth in this court's 2004 decision in this matter. See Morters v. Aiken & Scoptur, S.C., No. 03-1437, unpublished slip op. (WI App Mar. 16, 2004). Thus, we set forth only those facts necessary for resolution of the instant appeal.

¶ 3. In the aforereferenced decision, we affirmed the trial court's grant of summary judgment dismissing Morters's claims against Aiken & Scoptur for legal malpractice and breach of contract. Morters claims that Aiken & Scoptur deprived him of a jury trial when it submitted his personal-injury claim to arbitration without his consent. The trial court found that Morters could not prove two elements of the legal malpractice claim and that claims relating to the arbitration had already been litigated in other proceedings.

¶ 4. After the trial court's decision, Aiken & Scop-tur filed a motion seeking attorneys' fees and costs based on the frivolous claim statute, Wis. Stat. § 814.025(3)(b) (2003-04). The trial court denied the motion, finding that Morters's claim was not frivolous.

¶ 5. Morters filed an appeal with this court challenging the trial court's summary judgment decision. Aiken & Scoptur cross-appealed, challenging the trial court's decision on its frivolous claim. We affirmed the trial court's decision granting summary judgment on the grounds that Morters's claims against Aiken & Scoptur were barred by the doctrine of claim preclusion. We reversed the trial court's decision on the frivolous claim statute and remanded the matter to the trial court to conduct a hearing to determine reasonable attorneys' fees and costs.

¶ 6. On remand, the trial court determined reasonable attorneys' fees and costs related to both the trial court proceedings and the appellate court proceedings. It did so, based on the reasoning that if the claim was frivolous from the moment it was filed, then costs and fees should be awarded for all matters generated from that claim until the case was complete, including any appellate matters. The trial court ordered Morters to pay Aiken & Scoptur $10,123.09 related to the trial court proceedings, and $17,820.02 related to the appellate court proceedings.

¶ 7. A motion for reconsideration was filed, challenging the trial court's authority to make a frivolous award for appellate proceedings without any directive from the court of appeals or finding by the court of appeals that the appellate proceedings were frivolous. The trial court denied the motion. Judgment was entered. Morters now appeals.

DISCUSSION

A. Frivolous Appeal Costs.

¶ 8. Morters's first argument is that the trial court was without authority to order him to pay costs and fees related to the 2004 appeal in this case on the basis that the underlying claim was frivolous. He argues that the law in this state requires an appellate court to determine that an appeal is frivolous before a trial court can award a litigant to pay costs and fees associated with that appeal. We agree with Morters, and therefore reverse that portion of the judgment requiring him to pay $17,820.02 for appellate frivolity costs and fees.

¶ 9. Wisconsin Stat. § 809.25(3) provides guidelines relative to this issue. It states in pertinent part:

FRtvolous appeals, (a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees, and reasonable attorney fees under this section. A motion for costs, fees, and attorney fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, no later than the filing of the cross-respondent's brief.
(c) In order to find an appeal or cross-appeal to be frivolous under par. (a), the court must find one or more of the following:
1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

¶ 10. These statutory sections require "the court" to make findings. "The court" as used in this statute, refers to the court of appeals or the supreme court. See Wis. Stat. § 809.01(4). Therefore, the trial court cannot make a finding that an appeal is frivolous. The authority for such a finding is vested with the appellate court. It is undisputed in this case that this court did not make any findings as to whether Morters's 2004 appeal was frivolous. Aiken & Scoptur did not make a motion requesting such a finding at any time during the 2004 appellate proceedings. The issue of frivolity of the last appeal was never raised until the matter was back in the hands of the trial court.

¶ 11. Aiken & Scoptur argue, nonetheless, that it is implicit in the record that Aiken & Scoptur would pursue frivolous costs at all stages of the proceeding provided their cross-appeal in the 2004 appeal was successful. We cannot agree. Although it is true that this court can sua sponte find an appeal to he frivolous, that is not what occurred here. There was no discussion at all in the 2004 appeal in this court that that appeal was frivolous. Aiken & Scoptur did not make a motion seeking such finding and this court did not make that finding on its own.

¶ 12. The Wisconsin Supreme Court recently addressed the issue of appellate frivolity in Howell v. Denomie, 2005 WI 81, ¶¶ 16-21, 282 Wis. 2d 130, 698 N.W.2d 621. In that case, our supreme court held that if an appellate court makes a finding that an appeal is frivolous, it is required to give the parties notice that it is considering the issue and must afford the parties "an opportunity to respond to the issue before a determination is made." Id., ¶ 17. In the instant case, that never occurred.

¶ 13. Aiken & Scoptur argue that Morters was afforded an opportunity to respond to its request for appellate costs on the basis that the appeal was frivolous during the trial court proceedings. Such does not change the fact that Morters was not afforded the opportunity to respond at the appellate level during the 2004 appeal. Nor does it change the fact that the authority for finding an appeal to be frivolous rests with the appellate court, not the trial court.

¶ 14. Aiken & Scoptur also contend that the trial court has the authority under Wis. Stat. § 814.025 to order Morters to pay all costs and fees based on frivolous claims for the entire proceeding, including any necessary appeals. It cites Richland County v. DHSS, 146 Wis. 2d 271, 279-80, 430 N.W.2d 374 (Ct. App. 1988), to support this proposition. We reject this contention. The facts in Richland County are very different from those in this case. In Richland County, the appellate court specifically directed the trial court to award fees associated with the appeal. Id. at 278-80. In the instant case, this court never addressed the issue of appellate frivolity. We were never asked to, nor did we deem it necessary to sua sponte consider the issue. Accordingly, Richland County does not control the instant matter.

¶ 15. Based on the foregoing, we conclude that the trial court was without authority to order Morters to pay frivolous costs and fees associated with his 2004 appeal in this matter. Accordingly, that portion of the judgment ordering him to pay $17,820.02 is hereby reversed.

B. Trial Court Frivolous Award/Mitigation.

¶ 16. Morters's second argument is that the trial court erred in the amount awarded as frivolous costs and fees associated with the trial court proceedings. He contends that Aiken & Scoptur failed to mitigate their damages. We cannot agree.

¶ 17. In reviewing a trial court's award of attorneys' fees and costs, we apply a mixed standard of review. Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 575-76, 597 N.W.2d 744 (1999). A trial court's factual findings will not be disturbed unless clearly erroneous. Id. at 575. However, whether the award was reasonable is a question of law. Id. at 576. Because the trial court is in a superior position to assess the quality of the work, and to observe all of the actions taken from the beginning of the case until the end, we give weight to the trial court's determination on reasonableness. Id. at 575-76.

¶ 18. The record reflects that the trial court invited the parties to submit evidence, reviewed everything that was in the file, and reviewed all of the billing statements. The trial court concluded that: "The fees and costs incurred by the defendants in the circuit court before the appeal were reasonable and necessary in defense of a frivolous action." The trial court rejected Morters's assertion that Aiken & Scoptur "were sitting back and running up a large bill." The trial court indicated that it saw "no evidence of churning, duplication or unnecessary procedures or effort in bills incurred during this first sta[g]e of the litigation ...."

¶ 19. The trial court went on to address whether the fees were reasonable. It concluded that there was a "good reason for the defendants' attorneys to do what they did." In reviewing this matter, we cannot conclude that the trial court's findings were clearly erroneous or that its determination was unreasonable. We agree with the trial court's assessment that the costs and fees incurred at the circuit court level were necessary, reasonable and did not demonstrate an attempt to "run[] up a large bill."

¶ 20. Morters argues that Aiken & Scoptur should have, and could have, mitigated the expenses it incurred at the trial court level by filing its motion asserting frivolousness earlier — before it conducted discovery and before it filed its motion seeking summary judgment. We are not convinced that such action would have been successful or reasonable. A party may subjectively believe that its opponent's conduct is frivolous, but hold off on filing a motion alleging such until it has objective evidence to support such a motion. It appears that this was the course taken by Aiken & Scoptur here. In fact, their first motion seeking a finding of frivolousness was rejected by the trial court. If they lost the original motion after the granting of summary judgment, it is improbable that the same motion made at an earlier time would have been successful.

¶ 21. Finally, Morters argues that the trial court should have imposed the frivolous sanction solely on his former trial attorney, as opposed to splitting the costs equally between the attorney and himself. Although this court can understand Morters's position, we cannot overturn the trial court's determination in this regard. The trial court considered the pertinent facts and reached a reasonable determination. Its decision for splitting the fees and costs was sound and cannot be overturned by this court.

¶ 22. Based on the foregoing, we affirm the trial court's decision with respect to the reasonableness of the costs and fees associated with the trial court proceedings, and we affirm its decision denying Morters's assertion that Aiken & Scoptur failed to mitigate its damages. Accordingly, those portions of the judgment are affirmed.

By the Court. — Judgment reversed in part and affirmed in part.

       Morters's personal-injury claim arose from a car accident, wherein Morters, his wife, and his granddaughter were injured.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The trial court also ordered two of Morters's former trial attorneys to pay frivolous costs to Aiken & Scoptur for their portion of the trial court proceedings. Neither of these attorneys have challenged the trial court's assessment and therefore we need not address their portion of the judgment in this appeal.

       Aiken & Scoptur have filed a motion seeking frivolous costs for the 2004 appeal, the remand proceedings, and the current appeal. We deny the motion for the reasons set forth in the body of this opinion. The only frivolous cost award that remains is the $10,123.09, which was awarded by the trial court and affirmed by this decision. Morters has also filed a motion seeking frivolous costs, alleging that Aiken & Scoptur's motion was frivolous. We deny Morters's motion as well. Finisque ab origine pendet. (The end hangs from the beginning.)


author: CANE, C. J.

text:
    Todd Walker and Tammy Walker, Plaintiffs-Appellants, v. Ranger Insurance Company and Master Gas Service Company, Inc., Defendants-Respondents.
    Court of Appeals

      No. 2005AP709.

      Submitted on briefs January 17, 2006.

      Decided February 14, 2006.

    2006 WI App 47
    (Also reported in 711 N.W.2d 683.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Bryan S. Seidl, of Seidl & Stingl, S.C. of Rhinelander.
    On behalf of the defendants-respondents, the cause was submitted on the brief of John V. McCoy and Elizabeth R. Sandquist of McCoy & Hofbauer, S.C. of Waukesha.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C. J.

¶ 1. Todd and Tammy Walker appeal a judgment and an order of the circuit court, which granted summary judgment in favor of Master Gas Service Company, Inc., and its insurer, Ranger Insurance Company. The Walkers contend the court erred when it found that the economic loss doctrine barred the Walkers' negligence claim. The Walkers also appeal an order denying their motion in limine, thereby permitting Master Gas's expert witnesses to testify regarding the standard of care within the propane industry. Master Gas contends that, in any event, a finding of liability would be contrary to public policy, and we should therefore affirm the dismissal. We agree with the Walkers' arguments, and accordingly we reverse the trial court's dismissal of the claim and remand the matter for further proceedings.

BACKGROUND

¶ 2. The Walkers purchased a mobile home, intending to use it as rental property. They entered into an oral rental contract for the home with Patrick McCabe. McCabe was responsible for paying utilities, including the propane gas that heated the home. Mc-Cabe opened an account with Master Gas for propane delivery, and he was required to pay for the propane tank refills on a collect on delivery basis.

¶ 3. On one occasion, McCabe wrote a check to Master Gas for the amount necessary to refill his propane tank. The bank rejected McCabe's check due to insufficient funds. Master Gas communicated with Mc-Cabe that he must pay the bill in full. After multiple attempts seeking payment from McCabe, Master Gas turned off the propane on the propane tank in early February, leaving the home unheated. Master Gas left a note on the door of the home stating "We also need owners' phone and address." McCabe abandoned the property, and Master Gas never notified the Walkers that the propane had been shut off. Master Gas ultimately conceded it had Todd's phone number.

¶ 4. Temperatures at the time the propane was shut off were below freezing. Two weeks passed before Todd visited the home and discovered that the propane had been shut off. Todd found that the pipes had burst, and the home was severely flooded. Due to the water from the burst pipes, significant damage was present throughout the home.

¶ 5. The Walkers filed a negligence claim against Master Gas alleging that Master Gas owed the Walkers a duty of care, and it should have notified them that it planned to shut off the propane. The court granted Master Gas's motion for summary judgment on the basis that the Walkers' claim was barred by the economic loss doctrine. The court never addressed Master Gas's argument that public policy also barred the claim. Prior to the court's summary judgment ruling, it also ruled that Master Gas's industry experts could testify regarding the appropriate duty of care Master Gas owed the Walkers. Specifically, Master Gas contended the experts would testify regarding the standard of care owed in this case according to propane industry standards.

DISCUSSION

¶ 6. We review summary judgment without deference, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute, and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08. Our method of analysis of summary judgment is well documented, and it will not be repeated here. See, e.g., Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). Whether application of the economic loss doctrine is appropriate is a question of law we review without deference. Prent Corp. v. Martek Holdings, Inc., 2000 WI App 194, ¶ 10, 238 Wis. 2d 777, 618 N.W.2d 201.

¶ 7. We agree with the Walkers' contention that the trial court erroneously ruled that the economic loss doctrine barred their negligence claim. The economic loss doctrine is a judicially created doctrine that seeks "(1) to maintain the fundamental distinction between tort law and contract law; (2) to protect commercial parties' freedom to allocate economic risk by contract; and (3) to encourage the party best situated to assess the risk [of] economic loss, the commercial purchaser, to assume, allocate, or insure against that risk." Van Lare v. Vogt, Inc., 2004 WI 110, ¶ 17, 274 Wis. 2d 631, 683 N.W.2d 46.

¶ 8. The doctrine holds "that a commercial purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories, particularly where the warranty given by the manufacturer specifically precludes the recovery of such damages." Id., ¶ 18. Gradually, Wisconsin courts have extended the economic loss doctrine to allow its application in cases involving a noncommercial party, see, e.g., Linden v. Cascade Stone Co., 2005 WI 113, 283 Wis. 2d 606, 699 N.W.2d 189, and to cases involving real estate. See, e.g., Van Lare, 274 Wis. 2d 631.

¶ 9. Here, the economic loss doctrine does not bar the Walkers' common law negligence claim because elements necessary for its application are not present. First, the damages the Walkers suffered were not the result of a defective product, and the case does not involve real estate. The Walkers contend that Master Gas negligently turned off the propane service to the home, and due to the lack of heat, the pipes burst and significant damage occurred as a result. Specifically, the Walkers argue the damage that would ensue from turning off the propane was foreseeable, and Master Gas was therefore negligent for not attempting to notify the Walkers before shutting it off. The alleged negligence does not flow from the purchase of a defective product or real estate but, rather, from the actions of Master Gas.

¶ 10. Further, no contractual relationship existed between the Walkers and Master Gas. "[W]here parties are linked to each other by contract, the economic loss doctrine may be invoked to avoid drowning contract law in a 'sea of tort.'" Linden, 283 Wis. 2d 606, ¶ 7. However, when no contractual relationship exists, it is equally important to prevent an allegedly damaged party from "fall[ing] between the stools of tort and contract." See Miller v. U.S. Steel Corp., 902 F.2d 573, 575 (7th Cir. 1990). Master Gas and the Walkers had no contract, so it is impossible for the Walkers to pursue any contract damages. Barring the Walkers from bringing their negligence claim would likely leave them with no other recourse against Master Gas. The economic loss doctrine exists to compel parties bound by a contractual relationship to pursue damages via contract, not to prevent an injured party from bringing a potentially viable negligence claim when no contract exists. Thus, we conclude that the economic loss doctrine does not bar the Walkers from bringing their common law negligence claim against Master Gas.

¶ 11. Master Gas argues that even if the economic loss doctrine is not applicable, "summary judgment is appropriate because, as a matter of law, the [Walkers] cannot prove a duty of care by Master Gas to the Walkers." See Bence v. Spinato, 196 Wis. 2d 398, 417, 538 N.W.2d 614 (Ct. App. 1995) ("If a trial court reaches the correct result based on erroneous reasoning, we will affirm."). Master Gas incorrectly attempts to analyze this issue based on whether Master Gas owed the Walkers a duty of care. In this state, "one always owes a duty of care to the world at large." Rockweit by Donohue v. Senecal, 197 Wis. 2d 409, 433, 541 N.W.2d 742 (1995). This issue is properly analyzed regarding whether Master Gas acted negligently. In order to prove negligence, there must exist: "(1) a breach of (2) a duty owed (3) that results in and (4) an injury or injuries or damages." Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860. Our supreme court has recognized:

Where the facts alleged to give rise to a duty are agreed upon, the question of the existence of a duty is one of law. This question is closely related to the question of whether a defendant is not negligent as a matter of law, i.e. based on the facts presented, no properly instructed, reasonable jury could find the defendant failed to exercise ordinary care. Generally, this question is for the jury and should be decided as a matter of law before trial only in rare cases.

Rockweit, 197 Wis. 2d at 418-19 (quoting Olson v. Ratzel, 89 Wis. 2d 227, 251-52, 278 N.W.2d 238 (Ct. App. 1979)).

¶ 12. Master Gas has not demonstrated that this case is somehow rare, and thus should not benefit from the trier of fact's analysis on the negligence issue. Given the facts, it is reasonable to believe that a trier of fact could find Master Gas negligent. It was readily foreseeable that shutting off the heat to the property, during a very cold period, might cause the pipes to burst and property damage could occur as a result. Further, Master Gas's actions seem to suggest it believed some exercise of ordinary care was required. Master Gas left a note on the home requesting the Walkers' contact information. For summary judgment, Master Gas conceded it had Todd's phone number, and it is alleged that its own internal procedures require that it obtain contact information for landlords from tenants. Thus, we decline to hold that no negligence exists as a matter of law, and we leave this question for the trier of fact.

¶ 13. Next, the Walkers contend that Master Gas's experts should not be permitted to testify regarding its standard of care owed according to internal propane industry standards when disconnecting propane at a residence. "A circuit court's decision to admit or exclude expert testimony will not be upset on appeal if it has a reasonable basis and was made in accordance with accepted legal standards and in accordance with the facts of record." State v. Watson, 227 Wis. 2d 167, 191, 595 N.W.2d 403 (1999). Our supreme court wrote:

[I]f a witness is qualified as an expert and has specialized knowledge that is relevant because it will assist the trier of fact to understand the evidence or determine a fact in issue, the expert's analysis or opinion will normally be admitted into evidence. That a lay witness of ordinary intelligence may also understand the subject matter does not mean that the opinion of an expert in the field would not be of assistance to the trier of fact in understanding the evidence or determining a fact in issue. As a general rule, then, it is not an erroneous exercise of discretion for the court to admit expert testimony so long as the testimony aids the trier of fact in consideration of the issues.

Id. at 187 (citations omitted). The court noted that the proper analysis of whether to admit expert testimony requires focus on whether the testimony will "assist the trier of fact to understand the evidence," rather than whether the testimony involves technical expertise or information that is not within the common knowledge of a lay person. Id. at 188.

¶ 14. Applying this standard, we do not see how Master Gas's experts can be permitted to testify to what Master Gas described as the following: "We are talking about what is the appropriate standard of care for addressing this type of situation in the industry. It's not something the average lay person would know." The issue in this case is whether Master Gas acted negligently when it disconnected the propane to their mobile home without notifying the property owners. Analysis of this issue does not require that the trier of fact have an understanding of the inner workings of the propane industry. Thus, the expert's testimony regarding what the propane industry considers the appropriate standard of care would not assist the trier of fact to understand the relevant evidence. Therefore, the expert's testimony on this issue should not be admitted.

¶ 15. Master Gas also argues that summary judgment is appropriate because the Walkers failed to provide testimony regarding the propane industry's standard of care. Because technical knowledge is not necessary to resolve the standard of care issue in this case, we reject this argument. See id. at 191.

¶ 16. Finally, we disagree with Master Gas's argument that we should affirm the summary judgment because even if the Walkers establish Master Gas's negligence, a finding of liability would be contrary to public policy. See Stephenson v. Universal Metrics, Inc., 2002 WI 30, ¶ 42, 251 Wis. 2d 171, 641 N.W.2d 158 ("Even if a plaintiff is able to establish all of the elements of a negligence claim, public policy considerations may dictate against a finding of liability."). Whether to limit liability with a negligence claim due to public policy considerations is a question of law we review without deference. Gritzner v. Michael R., 2000 WI 68, ¶ 27, 235 Wis. 2d 781, 611 N.W.2d 906. Master Gas relies on the following: In a tort action where there is a complete chain of causation between negligence and damage a court may nevertheless deny recovery on the following public policy grounds:

(1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; (4) allowing recovery would place too unreasonable a burden upon the tortfeasor; (5) allowing recovery would be too likely to open the way to fraudulent claims; or (6) allowing recovery would have no sensible or just stopping point.

Stephenson, 251 Wis. 2d 171, ¶ 43. Master Gas argues, "Any of the six above referenced factors is sufficient to preclude a finding of liability."

¶ 17. First, Master Gas contends,

Given the lack of any relationship between Master Gas and the Walkers, as well as the risks the Walkers assumed when allocating water, propane and electric payment responsibility to the tenant, it is obvious that any liability attributable to Master Gas would be too remote, too highly out of proportion and too extraordinary when compared to the claimed damages.

Considering the facts before us, we disagree. Master Gas was allegedly well aware that McCabe did not own the mobile home and that he was a tenant of the Walkers. It was readily foreseeable that shutting off the heat to the property during a very cold period might cause the pipes to burst and property damage could occur as a result. Thus, we are not compelled to hold that liability attributable to Master Gas would be too remote, highly out of proportion or extraordinary.

¶ 18. Master Gas next argues that holding it had an obligation to notify the Walkers of the impending disconnection would place too unreasonable a burden on propane retailers. Again, we disagree. It does not violate public policy to require a company to provide notice to a property owner before turning off the propane for heat, particularly when it is foreseeable that damage may occur as a result. In fact, there are indications that Master Gas itself may have recognized that it should have given notice to the Walkers. It is alleged that Master Gas's own internal procedures required that McCabe furnish Master Gas with the name and telephone number of his landlord before it would set up propane delivery service. For summary judgment, Master Gas conceded that it was aware of Todd's telephone number. Contrary to Master Gas's assertions, we fail to see how imposition of liability in this case would violate public policy. Thus, we reject all of Master Gas's public policy arguments.

By the Court. — Judgment and order reversed and cause remanded for further proceedings.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We only address those factors that Master Gas sufficiently briefed. See Estate of Balkus, 128 Wis. 2d 246, 255, n.5, 381 N.W.2d 593 (Ct. App. 1985).


author: CANE, C.J.

text:
    In re the Marriage of: Carolyn Rae Jarman f/k/a Carolyn Rae Welter, Petitioner, Eau Claire County Child Support Agency, Appellant, v. Larry Howard Welter, Respondent-Respondent.
    Court of Appeals

      No. 2005AP1616.

      Submitted on briefs February 6, 2006.

      Decided February 14, 2006.

    2006 WI App 54
    (Also reported in 711 N.W.2d 705.)

      On behalf of the appellant, the cause was submitted on the brief of Timothy J. Sullivan, Eau Claire County Assistant Corporation Counsel, of Eau Claire.
    On behalf of the respondent-respondent, there was no brief filed.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. Eau Claire County Child Support Agency appeals a circuit court order, which upheld the family court commissioner's decision to exclude Larry Welter's overtime income when calculating his gross income and child support obligations. The Agency argues that whether to exclude overtime income is a discretionary decision, and the trial court and the court commissioner incorrectly excluded the overtime income from the calculation as a general policy, without exception. We agree with the Agency and reverse and remand with directions to reevaluate the child support obligation with due weight to the parties' circumstances. We also take this opportunity to remind the trial court and the court commissioner that when Wisconsin law calls for the exercise of discretion, there can be no general policy without exceptions.

Discussion

¶ 2. Larry and Carolyn Rae Welter were married on October 3,1998, and divorced on May 3,1999. While married, they had one child together. At the time of their divorce, Larry worked as a custodian, and he was ordered to pay a percentage of his gross income for child support. On January 29, 2002, the child support payment was converted from a percentage of gross income to a fixed dollar amount based on his 2001 income. On April 21, 2005, a modification hearing was held before a family court commissioner, and a new support obligation was ordered based on Larry's 2004 income. The court commissioner's order indicates that he excluded the overtime income as a general policy when calculating Larry's gross income and subsequent child support obligation. Counsel noted, and it is not disputed that, this "Court Commissioner . . . has a policy of not including overtime. I think that's fairly wide known within the family law community."

¶ 3. The circuit court followed the court commissioner's decision, finding "The Court Commissioner's ... policy of not including overtime is correct." The court reasoned,

I do feel and I felt this way in divorce cases and so forth, it seems to, particularly if overtime is voluntary, that's the only opportunity a person has to get ahead on their own bills and so forth. And so if Mr. Welter is working diligently and earning a lot of overtime pay to pay his current obligations and ... if he has other children . . . I think he ought to be entitled to do that. I think his basis of paying on his .. . regular pay and his longevity pay is fair, but I really disagree with going after overtime.

¶ 4. Child support determinations are within the trial court's discretion and will not be reversed absent an erroneous exercise of discretion. Pergolski v. Pergolski, 143 Wis. 2d 166, 173-74, 420 N.W.2d 414 (Ct. App. 1988). Wisconsin law requires that child support obligations be expressed as a fixed sum unless the parties stipulate otherwise, Wis. Stat. § 767.25(l)(a), based upon a percentage of gross income and assets calculation (the percentage standard). Wis. Stat. § 767.25(lj). Gross income includes, among other things, all salary and wages. Wis. Admin. Code § DWD 40.02(13)(a)l (Dec. 2003).

¶ 5. The court has the discretion to deviate from the percentage standard based on the facts of each case if its application would be unfair to the child or any of the parties. Wis. Stat. § 767.25(lm). To determine fairness, sixteen different factors are considered, which relate to the circumstances surrounding the parents, the child or any of the parties. Id. The sixteen factors include a catch-all factor, which states the court may modify the child support obligation based on "[a]ny other factors which the court in each case determines are relevant." Wis. Stat. § 767.25(lm)(i). If the court deviates from the percentage standard,

the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or party, its reasons for the amount of modification and the basis for the modification.

Wis. Stat. § 767.25(ln). Thus, although the circuit court is not required to precisely follow the percentage standard, "it must articulate its reasoning process for the decision to remain within the support guidelines or to deviate from them." Rumpff v. Rumpff, 2004 WI App 197, ¶ 14, 276 Wis. 2d 606, 688 N.W.2d 699.

¶ 6. We agree with the Agency that the circuit court erred when it upheld the court commissioner's decision to exclude overtime pay as a general policy without exception when applying the percentage standard. Overtime income clearly constitutes a portion of salary and wages, and Wisconsin law does not exclude overtime income in the application of the percentage standard. See Wis. Admin. Code § DWD 40.03(1) (Dec. 2003). Further, the court and the court commissioner could have deviated from the percentage standard if they considered the above factors and articulated their reasoning regarding why its normal application would be unfair to the child or the parties. See Rumpff, 276 Wis. 2d 606, ¶ 14.

¶ 7. We recognize there may be circumstances when overtime income may be excluded from the gross pay of a spouse if it would be unfair to the parties or other factors supported exclusion. However, here the circuit court and the court commissioner simply applied a general policy against including overtime income in the application of the percentage standard. It is erroneous for a court commissioner or a court to set forth a general policy regarding the calculation of a child support obligation when the law calls for an exercise of discretion. See In re Steven J.S, 183 Wis. 2d 347, 351, 515 N.W.2d 719 (Ct. App. 1994) ("The trial court properly exercises its discretion if it articulates its reasons, bases its decision on facts of record and the correct legal standards, and the [child support] award is neither excessive nor inadequate."). Thus, we reverse and remand with directions to the circuit court to analyze the facts and apply the proper legal standards when exercising its discretion on whether to exclude overtime income.

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

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.


author: Fairchild, J.

text:
    State ex rel. Baker, Petitioner, v. County Court of Rock County, Respondent.

      October 7

    November 30, 1965.

      For the petitioner there was a brief and oral argument by J. Gordon Baker of Evansville, pro se.

      For the respondent there was a brief by Garrigan, Keithley, O’Neal, Dobson & Elliott and Roger D. O’Neal, all of Beloit, and oral argument by Roger D. O’Neal, and by Warren H. Resh of Madison of counsel.
    A brief amiei curiae was filed by Bronson C. La Follette, attorney general, Warren H. Resh, assistant attorney general, and John B. McCarthy of Madison, for the attorney general and the State Bar of Wisconsin.
    A brief amicus curiae was filed by Joseph W. Wilkus of Sheboygan, chairman, and Wendell MeHentry of Waupaca, secretary, for the Wisconsin Board of County Judges.
    A brief amicus curiae was filed by Wayland B. Cedar-quist of Chicago, Illinois; Jonathan F. Ells, Winsted, Connecticut; James T. Jennings, Roswell, New Mexico; George G. Lorinczi, Milwaukee; Warren H. Resh, Madison; Sherwood Spencer, Hollywood, Florida; William P. Waggener, Denver, Colorado; and Melvin F. Adler, Fort Worth, Texas, attorneys, and Lorinczi & Weiss, George G. Lorinczi and Robert K. Steuer of counsel, all of Milwaukee, for the American Bar Association.
   Fairchild, J.

County Judge Roang, the respondent, offers as justification for his refusal to act upon the papers presented by Mr. Baker, the proposition that in conducting probate proceedings Mr. Baker is engaging in the practice of law. Mr. Baker disputes this proposition, and contends, further, that such refusal impairs his rights under sec. 4, art. I, Wis. Const.; sec. 9, art. I, Wis. Const.; sec. 20, art. VII, Wis. Const., and sec. 1 of the Fourteenth amendment to the constitution of the United States.

1. Executor’s conduct of probate proceedings in court as practice of law. It is clear that, in general, the presentation of probate matters to the county court for adjudication, when done in behalf of another, is the practice of law.

Sec. 256.30 (2), Stats., provides in part that every person who shall appear as representative of another in any proceeding before a court of record shall be <Wmed to be practicing law. The county court is a court of record, and the statute does not except appearances in probate proceedings. This court has held, going beyond the statute by virtue of its own power to regulate the practice of law, that one not licensed to practice law may not appear before an administrative tribunal “as an advocate for a client in respect to the client’s legal rights and to procure an adjudication of legal rights desired by the client.” Decisions in other states hold that appearance on behalf of others in court in probate proceedings constitutes the practice of law.

The problem now before us is whether an executor is to be regarded as acting in behalf of others, i.e., the persons interested in the estate, where, as here, he represents to the court that he has properly performed his duties, the beneficiaries are entitled to distribution in specified proportions, and the state is entitled to taxes thereon in specified amounts, and asks the court to hear and determine those matters and enter appropriate orders and judgments.

The executor’s duty extends beyond the mere accounting for the assets which have come into his hands. Although particular situations may arise where the executor is purely an adversary of all others interested in the estate, such as an effort to establish derelictions of duty on his part, the relationship is ordinarily that of a fiduciary and representative, rather than that of an adversary.

The executor has a duty to see that the rights of the persons interested in the estate are correctly adjudicated.

“Ordinarily, it is no part of the duty of an executor to inform a legatee of the fact or terms of the bequest. An exception to this rule is admitted in cases where the devisee may hold under an independent title, as where he is also the heir at law of the testator. It has been held to be the duty of an executor who will profit by the failure of a legatee to claim a legacy within a prescribed period to use all reasonable diligence, with the knowledge and means of knowledge at his command, to inform the legatee of the facts of the bequest, in order that he may claim his bequest according to the terms of the will. It seems, however, that even in such case that the executor is not guilty of breach of duty in failing to inform the legatee of the terms or conditions of the legacy. The duties of the personal representative with respect to notification of persons entitled to share in the distribution of an estate, in connection with an order of distribution, is discussed in a subsequent section.”

“An executor represents the testator, and it is part of his duty to see that the will of the testator is properly executed. He likewise represents the legatees for whose benefit probate proceedings are had. ...”

“It has been several times held by this court that the executor of a will, whose duty it is to carry out the provisions of the will, is an ‘aggrieved party’ within the appeal statute if in his reasonable view the determination appealed from will not carry out those provisions. ...”

“In our opinion it may not be said that an executor has no duty to present to the courts his views as to the facts and the law to the end that the true intentions of the testator may be found and given effect. ...” (Emphasis added.)

“Such a person [an executor] is the representative of the testator and is charged with the duty of seeing that the will is probated and its provisions carried into effect. Public policy also requires that a legally executed will be probated, and the person named as executor has a public as well as a private duty to perform. If he in good faith believes that the will has been wrongfully denied probate by the county court, he should appeal from the decision.”

Although in Will of Willing this court took a restrictive view of the propriety of an executor employing counsel to assist him in every duty of administration, we said: “He should not be expected, of course, to prepare papers relating to court proceedings.”

The executor must be impartial among the beneficiaries, and he does not owe to each the same duty of advocacy in his behalf that an attorney or guardian ad litem for that individual would have. He does, however, have a duty to propose to the county court an adjudication of the rights of the beneficiaries which conforms to the law, as applied to the facts which can be ascertained with reasonable diligence. Where he is in doubt, he has a duty to pose the legal questions to the court. He has this duty whether or not the beneficiaries are represented by counsel individually retained. We think that in performing the duties just mentioned, the executor is sufficiently in the role of a representative of the beneficiaries so that his submission of such matters to the court for adjudication constitutes the practice of law. It follows that when the executor is not an attorney, such matters must be presented for him by an attorney licensed to practice law.

The supreme courts of several other states have decided that an executor’s appearance in the conduct of a probate proceeding is not to be deemed the mere appearance of an individual in his own behalf, but is also a representation of others, and therefore an executor not licensed to practice law must appear by an attorney.

It is surely a common occurrence that persons interested in an estate do not retain an attorney to protect their individual interests, but rely upon the executor to fulfil his duty to carry out proper administration and distribution. In those situations, the beneficiaries would not have the benefit of legal analysis of their rights and skill in preparing and presenting the orders and judgments necessary to give effect to their rights if the executor were proceeding without an attorney.

It may happen, of course, that in a particular proceeding there may be no difficult legal problem, and that a particular lay executor may successfully present the matter in such form as to protect the rights of everyone. Perhaps the instant case is such a situation. It does appear that each beneficiary under the Baker will has consulted with an attorney of his choice, and such attorney has approved the proposed distribution. It also appears that Mr. Baker’s former counsel advised him, before withdrawal, as to the distribution which was proper under the will, and Mr. Baker has drawn his papers in accord with that advice. Nevertheless, the need for protection of beneficiaries in general from practice by unlicensed persons justifies the existence of a general rule and its application to this instance. To require the county court to determine, case by case, whether an unrepresented executor had properly protected the rights of all beneficiaries would impose an unmanageable burden.

We emphasize that in this case we are dealing with the executor’s submission of matters to the court for adjudication. We do not say that the submission to the court of every report in a probate or trust matter, and every act of an executor in collecting debts, paying claims, preserving the assets, and preparation of tax returns constitutes the practice of law. Whether such activity involves the practice of law in any particular instance would depend upon the complexity of the questions which necessarily must be resolved. The Connecticut court distinguished between activity of a fiduciary which necessarily involves the practice of law and activity which may or may not, depending upon the type of problem presented.

2. Right to petition. Sec. 4, art. I, Wis. Const., provides :

“The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.”

Petitioner contends that respondent’s refusal to retain and consider on their merits the documents presented infringes his right to petition a governmental department.

This court has refused to accept a petition by persons not parties to a proceeding, asking the court to make a specific disposition of the pending proceeding. The court conceded that the right of petition is an inherent right of the citizen under all free governments, but held that the right protected from abridgment by the constitution is the right as it was known and exercised at the time of the adoption of the constitution. “Petitions which have been established as a part of judicial procedure may be presented to courts, and such petitions are the only ones protected by the constitutional provision here invoked.”

In the case now before us the petition for allowance of the final account (as well as the other papers presented) was an appropriate type of document in the pending proceeding. But their presentation violated a different requirement of orderly administration of justice, and were rejected for that reason alone. Judge Roang refused to retain them, and proceed upon their merits, because of his conclusion (with which we agree) that presentation of them by Mr. Baker was, under the circumstances, the unauthorized practice of law. We consider that the prohibition against unauthorized practice of law is a valid and reasonable regulation, in the public interest, of the orderly conduct of judicial proceedings, and its application to a petition presented by an unlicensed person in a capacity where he represents others is not an abridgment of the right to petition, as guaranteed by sec. 4, art. I, Wis. Const.

3. Right to obtain justice freely. Sec. 9, art. I, Wis. Const., provides :

“Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.”

Petitioner contends that if he is forced to retain and consequently pay an attorney of record he would be denied the right to “obtain justice freely, and without being obliged to purchase it.”

In Christianson v. Pioneer Furniture Co, this court said of see. 9, art. I, Wis. Const.:

“That provision is very old. Its history dates back to the days of Magna Carta. It was designed to prevent a species of official exactions made as the price of delaying or expediting justice. From the lowest officer to the king himself, in the olden times, bribes were freely demanded and taken to procure the benefits of the laws. They bore no relation whatever to our system of exactions for expenses of litigation, called costs, or the charge as a tax on suits, imposed under laws which bear equally upon all; but they were arbitrary exactions sanctioned by the manners of the times, that went to the personal benefit of the judicial head or body controlling the execution of the law, or to servants or officers connected therewith. It was such abuse, among others, that the barons of England forced King John to abolish by grant-mg' the Magna Carta. It contained the following as one of the guaranteed limitations upon kingly prerogatives: ‘We will not sell the right and justice to anyone, nor will we refuse it, or put it off.’ . . . .”

Sec. 9, art. I, Wis. Const., then, does not guarantee that there will be no expense to litigation; it guarantees that persons will not have to bribe or make arbitrary payments to officials in order to obtain justice. The application of the prohibition against unauthorized practice of law to an unlicensed person, appearing as executor and thus representing beneficiaries, does not violate sec. 9, art. I.

4. Individual’s right to appear in person. Sec. 20, art. VII, Wis. Const., provides:

“Any suitor, in any court of this state, shall have the right to prosecute or defend his suit either in his own proper person, or by an attorney or agent of his choice.”

Mr. Baker contends that he is a suitor prosecuting his own suit, and, consequently, that the provision just quoted gives him the right to proceed in his own proper person, without an attorney. But, as set forth earlier in this opinion, we consider that in presenting to the court for adjudication the matters here involved, Mr. Baker, as executor, was a representative of the beneficiaries, as well as himself.

Mr. Baker also appears to rely on the fact that the beneficiaries have approved his proceeding without counsel, and that the provision just quoted gives them the right to prosecute their suit by an “agent” of their choice.

The history of this provision indicates that an unlimited right to be represented by any other person was considered and rejected. One proposal presented to the 1846 constitutional convention would have abolished the professions of attorney, counsellor, and solicitor and permitted any male person twenty-one years of age or over to appear in any court in the state in a representative capacity for any other person. A proposal presented to the 1847-1848 convention provided that every suitor has a right to “prosecute or defend his suit, either in his own proper person, or by an attorney or agent of his choice, whether such agent be an attorney or not.” (Emphasis added.) This provision was withdrawn by its author and the present provision subsequently adopted.

The foregoing history indicates that the term “agent,” as used in sec. 20, art. VII, Wis. Const., has a limited meaning.

Attorneys-at-law have not always been the only class of persons entitled to represent others before courts. In the light of the history, we consider that the term “agent” incorporated only those other classes of persons who may have been authorized to appear in court on behalf of others. Over the years the various classes have been merged so that at the present time attorneys licensed to practice law are the only persons authorized to appear on behalf of others before courts of this state. As a consequence, the term “agent,” as used in the constitution, is now coextensive with the term “attorney.”

Many years ago, the supreme court of Michigan construed a similar provision in the constitution of that state, and held the word “agent” synonymous with the word “attorney.” In 1938, this court suggested, although it did not then decide, that the word “agent . . . may have substantially the meaning of ‘attorney’ when its constitutional and legislative history is fully considered. . . .”

Mr. Baker relies on a 1919 opinion of the attorney general which stated:

“March 15,1919.
“Honorable Theodore Benfey,
State Senator.
“In your letter of March 13 you submit Bill No. 238, S., and state that your committee desires to be advised as to whether the proposed amendment to sec. 4052a., as provided in this bill, would be in contravention of sec. 20, art. VII, Wis. Stats.
“This amendment adds to sec. 4052a the following:
“ ‘In all estates involving assets in excess of one thousand dollars, the executor or administrator shall appear by an attorney.’
“Sec. 20, art. VII, Wis. Const., provides:
“ ‘Any suitor, in any court of this state, shall have the right to prosecute or defend his suit either in his own proper person, or by an attorney or agent of his choice.’
“In my opinion, this amendment requiring the executor or administrator to appear by an attorney in all proceedings in county court, where the assets of the estate are in excess of one thousand dollars, is clearly in violation of this provision.”

We feel that the attorney general failed to give sufficient consideration to the history of the constitutional provision set out above or to the fact that the executor represents the interests of others.

5. Equal protection of the laws and due process of law. Sec. 1 of the Fourteenth amendment, U. S. Const., provides in part:

“. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Mr. Baker argues, apparently, that the beneficiaries of-the estate, as well as he, are denied equal protection of the laws if the court refuses to proceed to hear the matter submitted for adjudication unless the executor appears by an attorney. This argument is answered by the same proposition earlier set forth. The prohibition against unauthorized practice of law is a valid and reasonable regulation, in the public interest, of the orderly conduct of judicial proceedings. The attorney is licensed to practice after fulfilling standards which are relevant to his ability to represent others before the courts. Such license is a sufficient reason for refusing to permit the unlicensed to represent others. No executor similarly situated would have the right to proceed without, an attorney. Such refusal does not deny the equal protection of the laws.

Mr. Baker apparently argues that the beneficiaries will be deprived of property without due process of law because he anticipates that the county court will arbitrarily allow a fee which is substantially in excess of the reasonable value of services remaining for an attorney to perform.

This contention has no merit. It is based upon the assumption that the county court will allow the attorney who next appears in this matter an amount which, added to the fee already paid, will equal the amount computed according to the schedule of minimum fees suggested by the State Bar of Wisconsin, arbitrarily and without considering the reasonable value of the services actually rendered. Mr. Baker apparently considers that the minimum fee is excessive under circumstances pertaining in the administration of this particular estate.

As previously indicated, we consider that the prohibition against unauthorized practice of law applies to an executor appearing in court to seek an adjudication of the rights of beneficiaries, and the fact that the requirement of obtaining representation by a licensed attorney will involve some expense is not a taking of property without due process of law.

The amount of the fee chargeable to the estate will be determined by the court, presumably at the time of the allowance of the final account. Mr. Baker will have the opportunity to present to the court any facts tending to show the nature and extent of the services rendered, and any other facts relevant to a proper fee. If aggrieved, he will have the right to appeal to this court from the county court’s order determining the fee allowed.

Judge Roang’S position with respect to the minimum fee schedule is stated in his return, as follows:

“. . . the Court has followed the practice of using the State Bar minimum fee schedule as a guide to prevent overcharges as well as undercharges, and alleges further that the Court has been guided by the rule stated in Lathrop vs. Donohue (1959), 10 Wis. (2d) 230, 102 N. W. (2d) 404 that a lawyer’s charge for services, even when based upon the recommended schedule, is always subject to the Court’s determination of reasonableness.”

The schedule of minimum fees of the State Bar rests for its validity upon the collective judgment of the committee or groups that passed upon it as a scale of fees generally fair for the types of services listed. As a result the schedule is evidence relevant to the question of a reasonable charge for services, but it has no other legal force.

The judicial determination of the amount of the fee will assure Mr. Baker and the other beneficiaries of due process of law.

6. Inherent power of probate court to require executor or administrator to retain attorney. Judge Roang’s position was that Mr. Baker, as executor, represents the interests of others, and therefore when he comes before the court to seek an adjudication of their rights, he is practicing law. This was the theory debated before us by the parties in briefs and on oral argument, and we have stated above our conclusions on the points raised.

It seems to us, however, that there is another basis on which Judge Roang’s action could be sustained in the present case (where Mr. Baker does represent the interests of others) but which would also sustain the same action in a situation where the executor or administrator appears to be the sole beneficiary, and to represent no other person.

This is the proposition that the court with probate jurisdiction has inherent power to require the employment of an attorney at various steps of a probate or administration proceeding. With today’s volume and complexity of probate proceedings these courts cannot perform or review each step of such proceedings to be sure it has been correctly taken, and need to be able to rely upon the responsibility of an attorney, in order to have some assurance that the process will be correctly carried out.

A probate proceeding has attributes which are different from the adjudication in a civil or criminal action of disputes between individuals or between an individual and the state. Contests do arise, of course, in probate proceedings, and must be adjudicated there. But the principal purpose of a probate proceeding is the orderly devolution of property when its disposition is made necessary by death. Society has a special concern that such proceedings be properly carried out.

Unless probate matters are prepared and presented with diligence and shill, wills may be admitted without proper notice to the heirs, the identity of the heirs may be mistakenly determined without proper notice to those adversely affected; creditors may be unable to present their claims because of lack of notice; proceedings for authority to sell real estate may be defective; property may be distributed and real estate assigned contrary to the rights of persons interested; and taxes due the state may be improperly determined.

The public interest in the devolution of property in accordance with the will of the deceased or the law of this state may be thwarted, and title to property, particularly real estate, may be left unmarketable, because procedural steps were not properly taken.

There may, of course, be situations where the steps to be taken are so obviously uncomplicated that the court would have no hesitancy in entertaining and passing upon the particular petition even though it is not presented by an attorney. But, as previously suggested, to require the county court to determine, case by case, whether each step of a proceeding had been properly taken would impose an unmanageable burden.

An executor or administrator is, in a sense, the representative of the deceased. He is also a trustee for persons interested in the estate. We consider him also, in a sense, an officer of the probate court, with a function to perform in the probate proceeding itself. He is subject to the control of the court to see that the proceeding is properly carried out, in the interests of the public as well as those whose rights might be directly affected by an error.

We deem the executor or administrator enough the officer of the court, and the interests of society in the proper transmission of property at death, sufficient that the probate court has inherent power to require such officer to retain counsel.

Under this rationale, the constitutional problems raised by Mr. Baker present no greater problem than they do with respect to the proposition that an executor who represents the interests of others is practicing law.

A. Right to petition. The requirement that an executor or administrator be represented by counsel is a reasonable regulation, in the public interest, of the orderly conduct of judicial proceedings, and is not an abridgment of the constitutional right to petition.

B. Right to' obtain justice freely. Sec. 9, art. I, Wis. Const., is inapplicable, as already explained in part 3 of this opinion.

C. Individual’s right to appear in person. An officer of the court, in his capacity as such, is not deemed a “suitor” under sec. 20, art. VII, Wis. Const.

D. Equal protection of the laws and due process of law. Application of this rule does not deny equal protection of the laws, nor take property without due process of law, for the same reasons already stated in part 5 of this opinion.

By the Court. — Peremptory writ of mandamus denied. Action dismissed.

        State ex rel. State Bar v. Keller (1962), 16 Wis. (2d) 377, 389, 114 N. W. (2d) 796, 116 N. W. (2d) 141.

        Grand Rapids Bar Asso. v. Denkema (1939), 290 Mich. 56, 287 N. W. 377; State ex rel. Wright v. Barlow (1937), 132 Neb. 166, 271 N. W. 282, 286; In re Brainard (1934), 55 Idaho 153, 39 Pac. (2d) 769; Ferris v. Snively (1933), 172 Wash. 167, 19 Pac. (2d) 942, 90 A. L. R. 278; Arkansas Bar Asso. v. Union Nat. Bank (1954), 224 Ark. 48, 273 S. W. (2d) 408.

       The same question arises with respect to administrators, and similar questions with respect to other fiduciaries.

       21 Am. Jur., Executors and Administrators, p. 498, sec. 226.

        Will of Hughes (1942), 241 Wis. 257, 263, 5 N. W. (2d) 791.

        Estate of Satow (1942), 240 Wis. 622, 625, 4 N. W. (2d) 147.

         Will of Asby (1939), 232 Wis. 481, 490, 287 N. W. 734.

        Cowan v. Beans (1914), 155 Wis. 417, 418, 144 N. W. 1129.

       (1926), 190 Wis. 406, 414, 209 N. W. 602. See also Will of Robinson (1935), 218 Wis. 596, 602, 261 N. W. 725; Will of Roebken (1939), 230 Wis. 215, 222, 283 N. W. 815, and Estate of Greenwald (1962), 17 Wis. (2d) 533, 541, 117 N. W. (2d) 609.

         In re Otterness (1930), 181 Minn. 254, 232 N. W. 318; State Bar Asso. of Connecticut v. Connecticut Bank & Trust Co. (1959), 146 Conn. 556, 153 Atl. (2d) 453; Arkansas Bar Asso. v. Union Nat. Bank, supra, footnote 2.

        State Bar Asso. of Connecticut v. Connecticut Bank & Trust Co. supra, footnote 10.

         In re Stolen (1927), 193 Wis. 602, 214 N. W. 379, 216 N. W. 127.

        In re Stolen, supra, page 632, footnote 12.

       (1898), 101 Wis. 343, 347, 77 N. W. 174, 77 N. W. 917.

       Wisconsin Historical Publications, Collections, Vol. 27, Constitutional Series, Vol. II at 532.

       Journal and Debates, Constitutional Convention (1847-1848), pp. 52, 53.

       Id. pages 70, 71.

       5 Am. Jur., Attorneys at Law, p. 264, sec. 5; 1934 Wisconsin Law Review, 213, 215; 32 Notre Dame Lawyer (1956), 85.

       “Although some theoretical distinction is sometimes still maintained, the actual distinction between attorneys or solicitors and counsel or barristers is practically abolished in nearly all the states of this country.” 5 Am. Jur., Attorneys at Law, p. 264, see. 5.

        Cobb v. Judge of Superior Court (1880), 43 Mich. 289, 5 N. W. 309.

        Appeal of Cichon (1938), 227 Wis. 62, 70, 278 N. W. 1.

       8 Op. Atty. Gen. (1919), 181.

       “In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular ease will preclude the lawyer’s appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service.
      “In determining the customary charges of the Bar for similar services, it is proper for a lawyer to consider a schedule of minimum fees adopted by a Bar Association, but no lawyer should permit himself to be controlled thereby or to follow it as his sole guide in determining the amount of his fee.” Schedule of Minimum Fees for Attorneys and Related Materials, State Bar of Wisconsin, Canon 12, pp. F-3, 4, as revised in 1963.

        Conway v. Sauk County (1963), 19 Wis. (2d) 599, 604, 120 N. W. (2d) 671.

       It may happen, of course, that one who petitions for admission of a will or for administration does not employ an attorney. After appointment of the executor or administrator, however, his attorney can and should review the earlier proceedings to determine whether they were correctly taken.