author: Gordon, J.

text:
    Cullen, Plaintiff in error, v. State, Defendant in error. Ward, Plaintiff in error, v. Same, Defendant in error. Howard, Plaintiff in error, v. Same, Defendant in error.

      February 4 —
    March 2, 1965.

      For the plaintiffs in error there was a brief by Campbell, Brennan, Steil & Ryan and George K. Steil, attorneys, and Thomas J. Basting of counsel, all of Janesville, and oral argument by George K. Steil.

    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William A. Plata, assistant attorney general.
   Gordon, J.

All three of the accused men were charged as principals, although Mr. Howard and Mr. Ward appear to be the ones who physically entered The Beloit Thrift Center. It is not claimed that Mr. Cullen actually entered the building, but he allegedly assisted in the planning and was in the vehicle which was used in connection with the burglary.

Several of the contentions advanced upon this writ of error relate only to Mr. Cullen; others concern all three defendants. All defendants were represented by counsel and were convicted after pleas of not guilty. We will consider the various contentions raised.

Was Consolidation Proper?

Through his separate counsel, Mr. Cullen objected to the cases of the three defendants being consolidated for trial. No objection was made by the other two defendants. After a hearing, the trial court ordered consolidation. The charges against the three defendants were identical and arose out of the same events. The same witnesses were to be called in the case of each man. No apparent antagonism was shown in connection with the defenses of the three accused parties.

The trial court did not abuse its discretion in ordering consolidation. State v. Nutley (1964), 24 Wis. (2d) 527, 129 N. W. (2d) 155; Mandella v. State (1947), 251 Wis. 502, 29 N. W. (2d) 723; Kluck v. State (1937), 223 Wis. 381, 269 N. W. 683; Pollack v. State (1934), 215 Wis. 200, 253 N. W. 560, 254 N. W. 471. Cf. Flamme v. State (1920), 171 Wis. 501, 177 N. W. 596.

Specifically, it is now urged on behalf of Mr. Cullen that there was adverse testimony offered by one of the witnesses, Barbara Babler, which it is claimed was hearsay with reference to Mr. Cullen because it related to statements made out of his presence. Mr. Cullen’s counsel at the trial made no objection to the receipt of this testimony, nor did he make any request to have the trial court limit the applicability of the evidence by a special instruction to the jury. No request for a severance was made at the trial after this testimony was admitted.

At the time it ordered the consolidation, the trial court may well have anticipated the possibility that there would be some minor incompatibility in the evidence and, nevertheless, properly ordered consolidation. In the Nutley Case, at page 543, we observed that there might be prejudice to one of several defendants in a consolidated case when there would be presented at the trial “an entire line of evidence relevant to the liability of only one defendant.” The evidence in the case at bar which is claimed to have been improper is surely less than the “entire line of evidence” which would warrant a finding of prejudicial error.

■The Sanity Determination.

On the day of trial, Mr. Cullen’s counsel moved for an examination of his client’s sanity to determine if he was competent to stand trial. The court was advised of certain unusual conduct on the part of Mr. Cullen while he was in jail awaiting trial and thereupon ordered an examination by a medical doctor. Subsequently, the court received the doctor’s testimony and concluded that Mr. Cullen was sane and able to proceed to trial.

It is now urged that the court should have appointed a psychiatrist instead of a general practitioner. It is contended that the doctor’s medical examination lasted only twenty minutes and that his testimony showed that he did not delve into the correct tests and criteria for determining sanity.

Counsel has presented no authority to support his claim that the physician appointed must be a psychiatrist. We do not regard sec. 51.01 (2), Stats., as controlling in the instant case. In our opinion, the appointment of a physician engaged in general practice was.lawful under sec. 957.13 (1), which authorizes the trial court to conduct a summary inquiry. We believe that, from a reading of the aforesaid section of the statutes and the alternative section, sec. 957.27 (3), it is apparent that the legislature intended to impose broad discretion upon the trial judge in determining mental capacity to stand trial. In Crocker v. State (1884), 60 Wis. 553, 557, 19 N. W. 435, it was held that “the method of making inquisition is left to the discretion of the court.”

There is a presumption of sanity in Wisconsin which must be overcome by credible evidence. State v. Schweider (1959), 5 Wis. (2d) 627, 636, 94 N. W. (2d) 154; State v. Vinson (1955), 269 Wis. 305, 68 N. W. (2d) 712, 70 N. W. (2d) 1. In the instant case, we find no abuse of discretion on the part of the trial court in its conclusions or in the manner it reached them. The evidence does not establish that the presumption of sanity was overcome or that it was necessary to hospitalize Mr. Cullen for further observation. Neither the length of the examination nor the testimony of the medical doctor warranted a conclusion that the trial court erred. Wilson v. State (1956), 273 Wis. 522, 529, 78 N. W. (2d) 917.

Counsel’s Request to Withdraw.

On the day of the trial, Mr. Cullen’s attorney asked to withdraw. He informed the court that Mr. Cullen was uncooperative and had complained that he did not. trust his lawyer, who had been appointed by the court. In view of the time of the request and also in view of Mr. Cullen’s peculiar demeanor (which prompted the sanity inquiry discussed above), we believe that the trial court did not abuse its discretion in denying counsel’s request to withdraw. See Browne v. State (1964), 24 Wis. (2d) 491, 508, 129 N. W. (2d) 175, 131 N. W. (2d) 169.

The moment of trial had arrived; the witnesses were at hand. The trial court had a right to weigh the impact on others in determining whether counsel should be permitted to withdraw. People v. Wolff (1960), 19 Ill. (2d) 318, 167 N. E. (2d) 197, certiorari denied, 364 U. S. 874, 81 Sup. Ct. 119, 5 L. Ed. (2d) 96.

The court may properly have-had misgivings as to whether Mr. Cullen’s hostility to his attorney constituted entirely competent and intelligent conduct or waiver in light of his unusual behavior and the question as to his sanity. The problem of waiver on the part of the mentally incompetent defendant has been discussed by Professor David Fellman in his scholarly study of The Right to Counsel Under State Law, 1955 Wisconsin Law Review, 281, 302.

It should .further be noted that after the denial of the request to withdraw, Mr. Cullen’s attorney did, in fact, continue to represent him during the trial, and no claim is being advanced that such representation was incompetent. The charge is made, however, that the client’s lack of confidence in his attorney impeded the needed communication between attorney and client. Under all the circumstances, we find that there was no abuse of discretion.

Alleged Improper Evidence.

Was error committed in allowing lay witnesses to testify that certain markings were bloodstains? No objection to such testimony was made during the trial. Even over objection it is proper for a court to receive into evidence the opinion of a lay witness that he observed bloodstains. People v. Preston (1930), 341 Ill. 407, 173 N. E. 383, 77 A. L. R. 631; Johnson v. State (1911), 88 Neb. 565, 130 N. W. 282.

By way of analogy, it has been held that the average citizen can properly express an opinion as to whether another person is inebriated. Milwaukee v. Antczak (1964), 24 Wis. (2d) 480, 484, 129 N. W. (2d) 125; Odya v. Quade (1958), 4 Wis. (2d) 63, 74, 90 N. W. (2d) 96; Kuroske v. Aetna Life Ins. Co. (1940), 234 Wis. 394, 404, 291 N. W. 384. So, too, it is permissible for the ordinary person of average intelligence to express a conclusion as to whether he observed bloodstains. Few individuals arrive at adulthood without having had frequent occasions to see both bloodstains and persons under the influence of alcohol; opinions thereon need not be the exclusive domain of purported experts. If, through cross-examination, it becomes apparent that the witness has not, in fact, had sufficient familiarity with such matters during his lifetime, it would be proper for the court to order the testimony stricken. We cannot, however, say that bloodstains are so within an area of esotérica that their presence can be described only by experts.

Error is also charged because the court permitted into evidence a cardboard box and traveling kit which were similar to items allegedly involved in the burglary. The court made it clear that the exhibits were received for the edification of the jury and were not the actual items involved in the crime. We consider that it was entirely proper to submit comparable items to the jury for illustrative purposes.

The Jury Matron.

The jury matron in this case was a Mrs. Sapp. She wás the wife of one of the prosecution witnesses. Her husband also had been one of the investigating officers. Although no objection was made on this score until motions for new trials were presented, we consider that this constituted an error at the trial, .and we must determine whether there was a prejudicial effect.

There are several decisions in this state which make it clear that the practice of permitting a prosecution witness to act as jury bailiff is improper even in the absence of proof of actual or attempted influence upon the jury. State v. Cotter (1952), 262 Wis. 168, 54 N. W. (2d) 43; Surma v. State (1952), 260 Wis. 510, 51 N. W. (2d) 47. See also La Valley v. State (1925), 188 Wis. 68, 205 N. W. 412. In the Cotter Case, the conviction was reversed, with the court stating the following, at page 173:

“Even though no prejudice was shown and even though the ■ instructions by the trial judge would tend to eliminate prejudice, if any in fact existed, a trial must be free not only from prejudice but from the appearance thereof, and the. rule must be adhered to in this case.”

Other Wisconsin cases which have considered the problem of the stigma which attaches to the administration of justice when there is an appearance of impropriety in connection with the jury are O'Connor v. Brahmstead (1961), 13 Wis. (2d) 432, 435, 436, 108 N. W. (2d) 920, Rasmussen v. Miller (1955), 268 Wis. 436, 440, 68 N. W. (2d) 16, and State v. Sawyer (1953), 263 Wis. 218, 226, 56 N. W. (2d) 811.

To Lord Coke is attributed the following comment: “It is the worst oppression, that is done by colour of justice.”

The United States supreme court recently explored this problem and reached the same conclusion which this court had adopted in the Cotter Case and in the Surma Case. Said the United States supreme court in Turner v. Louisiana, 379 U. S. 466, 85 Sup. Ct. 546, 13 L. Ed. 424.

“Mr. Justice Holmes stated no more than a truism, when he observed that ‘Any judge who has sat with juries knows that, in spite of forms they are extremely likely to be impregnated by the environing atmosphere.’ Frank v. Mangum, 237 U. S. 309, at 349 . . . (dissenting opinion).”

The main distinction between the case at bar and the Turner Case is, of course, that Mrs. Sapp was not herself a witness but was, instead, merely the wife of one. There is no showing that any actual impropriety with the jurors took place; more importantly, the record does not reflect that there was an awareness by the jury of Mrs. Sapp’s identity. In a case in which the witness himself serves as the bailiff, his identity is necessarily known to the jurors, and all the subtle evils inherent in that situation may ripen so as to taint the verdict. In the instant case, the trial judge ruled that there was nothing “to indicate to the jury that Mrs. Sapp was the wife of one of the prosecution’s witnesses,” and we find no contradiction of this conclusion in the record.

Another distinction which also tends to lessen the impact of this error is the relatively short period during which the jury may have been subjected to Mrs. Sapp’s influence. In the instant case, the period was about three hours, which is a remarkable contrast to the period of three days in the Turner Case. The significance of this time factor is suggested by the following language of the United States supreme court in the Turner Case:

“We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity ... to renew old friendships and make new acquaintances among the members of the jury.”

A further distinction between the instant case and the Turner Case is that in the latter case the testimony that had been given by the two prosecution witnesses was crucial to conviction. This cannot be said with reference to Mr. Sapp’s testimony. He testified concerning his delivering two of the arrested men from Springfield, Illinois, and he also described how certain evidence was turned over to him.

We conclude that the trial court erred in permitting a witness’ wife to servé as jury matron, but, upon this record, we find that there was no prejudice.

Presence of Accused at View.

At the request of. one of the defendants, the jury was taken' to the scene of the alleged crime for a view thereof. The record does not indicate whether the defendants were present at such time. The defendants now contend that there was a violation of their right under sec. 957.07, Stats., to be “personally present” during the trial of a felony. State v. Sasse (1888), 72 Wis. 3, 38 N. W. 343; Sasse v. State (1887), 68 Wis. 530, 32 N. W. 849.

Assuming, without deciding, that an accused must be present at the jury’s view of the scene of an alleged crime, we conclude that the record simply does not show that any flaw occurred in the case at bar. The record is silent as to whether the three accused were in attendance at the view. No objection was made, nor was the issue raised until the motions for new trials. We find no reason to assume that the record’s silence reflects irregularity; there is no requirement that the record must affirmatively show an accused’s attendance at a view of the scene of the crime.

Because of our conclusion as to the state of the record, there is no need for our considering the question whether the accused can or did waive their right to be present.

Claimed Improper Sentencing.

Each of the defendants was convicted of both burglary and theft. They were given consecutive sentences as to each of said crimes. It is urged that the net result to the defendants has been unjust because, in other counties of this state, prosecutors might process only the burglary charge and not the theft charge.

No authority is cited by the defendants for their contention, and no case law has been brought to our attention which proscribes the practice employed in the instant case. On the contrary, in State v. Johnson (1960), 11 Wis. (2d) 130, 104 N. W. (2d) 379, the accused was charged, convicted, and sentenced for both burglary and theft, and this court affirmed without discussing the issue now under consideration.

We have held that it is not proper to convict for both an underlying felony and a felony murder (third-degree murder). Ronzani v. State (1964), 24 Wis. (2d) 512, 519, 129 N. W. (2d) 143; State v. Carlson (1958), 5 Wis. (2d) 595, 93 N. W. (2d) 354. Such conclusion, however, is derived from the fact that the penalty under the express language of sec. 940.03, Stats., entitled “Third-degree murder,” is determined by increasing the maximum penalty specified for the underlying felony. Thus, the Romani and Carlson concept as to felony murder is not applicable to a burglary-theft situation.

We conclude that it is legal for an accused to be prosecuted on both burglary and theft charges; this is true even though it may be that the contemplated theft supplies the felonious intent for the burglary. We do not regard sec. 939.66, Stats., to be applicable because the theft is not an “included crime” of the burglary.

Conclusion.

We find no error prejudicial to these defendants and conclude that their convictions and sentences must be upheld.

By the Court. — Judgments affirmed.


source: Caselaw Access Project

author: Wilkie, J.

license: Public Domain

text:
    Klapps (Ella) and another, Plaintiffs and Respondents, v. American Insurance Company, Defendant and Appellant: Milwaukee Automobile Mutual Insurance Company and another, Defendants and Respondents: Klapps (Robert C.), Impleaded Defendant and Respondent. Krause, Plaintiff and Respondent, v. Klapps (Robert C.), Defendant and Respondent: American Insurance Company, Defendant and Appellant: Mitchell and another, Impleaded Defendants and Respondents. Mitchell, Plaintiff and Respondent, v. Klapps (Robert C.), Defendant and Respondent: American Insurance Company, Defendant and Appellant.

      February 4 —
    March 2, 1965.

      For the appellant there were briefs by Cornelisen, Denis-sen, Kransush & Kuehn, and oral argument by David J. Condon, all of Green Bay.
    For the respondents there was a brief by Joyce & Goggin of Neenah, for Ella Klapps, and W. T. Kuchenberg and Harry P. Hoeffel, both of Appleton, for the Milwaukee Automobile Mutual Insurance Company and Patricia Mitchell, and Harry P. Hoeffel, for Arthur H. Krause and Patricia Mitchell, and oral argument by Mr. Hoeffel.

   Wilkie, J.

There are two issues presented on this appeal :

First, have plaintiffs-respondents met the burden of proving the existence of an insurance policy ?
Second, assuming the burden was met, did the insurance policy issued to Winnebagoland Motors cover the car driven by Klapps at the time of the accident ?

Existence of Insurance Policy.

The complaint in each of the three actions alleges on information and belief that prior to February 28, 1961, appellant American had issued an insurance policy to Winne-bagoland Motors covering the 1953 Plymouth, that Klapps was operating the car with the permission of Winnebagoland, and that the policy was in full force and effect at the time of the collision. By its answer (in the Krause action, which is substantially the same in the others) appellant American admitted issuing the policy prior to February 28th, and alleged that the policy was “subject to all of the terms, conditions, limitations and exclusions as contained therein.” Appellant denied that the policy was in full force and effect at the time of the accident. The answer further recited:

“This answering defendant further alleges the true facts to be that at the time of the said collision the said 1953 Plymouth 2 door automobile was jointly owned by the said Robert C. Klapps and his father, Reuben Klapps; that the said Winnebagoland Motors, Inc., was not the owner of said vehicle, and the said automobile was not covered by any policy of insurance then in existence by and between the said Winnebagoland Motors, Inc., and this answering defendant at the time of said collision.”

Appellant contends that by failing to introduce the policy or any testimony concerning coverage into evidence respondents failed to sustain their burden of proof, in regard to the issue raised by the pleadings of whether or not there was an insurance policy in effect at the time of. the collision..

But the pleadings do not raise an issue as to the existence of a policy. The answers clearly raise a policy defense by denying that there was coverage at the time of the accident because the car was then owned by the Klapps, not Winne-bagoland Motors. Under the pleadings, and after a trial on this precise policy defense, it would be farfetched indeed to support appellant’s contention that the very existence of the alleged policy was in dispute.

In effect, we conclude that the existence of the policy was conceded and the trial was properly limited to the particular coverage question raised by American.

Ownership of the Plymouth.

The issue of whether American’s policy covered the 1953 Plymouth at the time of the accident hinges on the underlying question of whether ownership of the vehicle had passed by then from Winnebagoland Motors to Robert Klapps and his father.

Ownership in property passes according to the intent of the parties.

Although all the conduct of the parties in this case does not support the plaintiffs’-respondents’ position, we are satisfied that the trial court’s determination that ownership remained in Winnebagoland Motors as of the time of the accident is not against the great weight and clear preponderance of the evidence.

The most-significant fact in arriving at the intention of the parties is the accumulation of evidence supporting the proposition that the consummation of the sale was conditional upon obtaining Reuben Klapp’s signature on the contract. (1) Young Klapps testified to this effect. (2) Testimony of Winnebagoland’s salesman Joseph Merkes, taken at an adverse examination, was read into the record at the trial. When asked whether there would have been a deal even if Klapp’s father refused to sign, Merkes in essence said that he did not know what would have happened. Merkes’ uncertainty at least indicates his doubt as to whether a contract was entered into on February 28th, since if there was a valid contract it would not have been necessary for Reuben to join in the signing. (3) That Winnebagoland placed major reliance on making an adult a party to such a contract with a minor is revealed by the fact that Reuben cosigned on two previous occasions when Robert purchased automobiles from Winnebagoland. (4) Although Robert Klapps signed a conditional sales contract and a car-order form on February 28th, he and his father both signed identical papers (even as to the date) on March 3d. If the earlier contract was in force, the only conceivable justification for the re-execution would be to bind Reuben Klapps as a guarantor. But this could have been accomplished by having him sign either the original contract, or if that was somehow misplaced, the original copy. The second signing not only indicates that the parties did not mean to be bound on February 28th, but also tends to support the trial court’s decision that the contract was actually contingent upon Reuben’s signing. (5) At the time of the collision, the car carried dealer’s license plates. It would be persuasive evidence that Klapps intended to take title to the car on February 28th if he had applied for his own plates on that day as required by law. That he failed to apply until March 2d or 3d, while not being conclusive evidence of exactly when the transaction was completed, at least casts doubt as to whether title passed on February 28th.

Appellant relies on the fact that Klapps described himself as the owner of the Plymouth in the insurance application he filled out February 28th. A similar contention was met in Liner v. Mittelstadt, where this court said:

“In our view this shows no more than precaution on Hinshaw’s part that there should be insurance which would go into effect immediately upon his becoming the owner; it does not show that he became owner [at one time] . . . rather than at some other time.”

However, if any inference is to be drawn from this signed application the trial court certainly could have reasoned that since Klapps realized the policy would not become effective until 12:01 a. m. on March 1st, it would be doubtful that he would intend to take title on February 28th to an automobile which he knew would not be covered by insurance until the next day.

The fact that Klapps drove the car home has little bearing on the question of ownership since it was customary for Winnebagoland to permit potential customers to try out vehicles. The fact that Klapps signed the title to the 1951 Studebaker over to Winnebagoland on February 28th is evidence that the contract was entered into on that date. However, this is countered by the fact that the agreed cash payment was not made until March 3d.

Considered as a whole, the great weight and clear preponderance of the evidence points inescapably to the conclusion that the ownership of the Plymouth had not changed hands at the time the accident occurred on February 28th. It is thus unnecessary to consider whether the trial court was correct in determining that the deal was actually closed March 3d.

Because of our assessment of the evidence received at the trial on the question of ownership it is not necessary for us to consider in any way the certified copy of the motor vehicle title submitted to this court with the request that we take judicial notice of the document in support of the position taken by plaintiffs-respondents.

By the Court. — Orders affirmed.

       Sec. 121.18, Stats. See also Liner v. Mittelstadt (1950), 257 Wis. 70, 42 N. W. (2d) 504.

        Guinther v. Schucht, ante, p. 97, 131 N. W. (2d) 861; Tiedeman v. Middleton (1964), 25 Wis. (2d) 443, 130 N. W. (2d) 783; Estate of Beat (1964), 25 Wis. (2d) 315, 130 N. W. (2d) 739.

       Sec. 341.04, Stats. “Penalty for operating unregistered or improperly registered vehicle. (1) It is unlawful for any person to operate . . . any motor vehicle, . . . for which a registration fee is specifically prescribed unless at the time of operation the vehicle in question either is registered in this state or is exempt from registration.
      “(a) A vehicle may be operated by a private person within a period of 15 days after the date of purchase of such vehicle by such private person ... if application for registration and certificate of title has been made.”

        Supra, footnote 1, at page 77.


author: Beilfuss, J.

text:
    Estate of Mayer: Mayer (Lillie), Appellant, v. Mayer (Clement W.) and another, Individually and as Co-executors, Respondents.

      February 4 —
    March 2, 1965.

      For the appellant there were briefs by Merten, Connell & Sisolak and Walter L. Merten, all of Milwaukee, and oral argument by Walter L. Merten.

    For the respondents there was a brief by Marth & Marth of West Bend, and oral argument by William. J. Marth.

   Beilfuss, J.

The first issue for consideration is — Does the complaint state facts sufficient to constitute a cause of action ?

When a complaint is challenged by demurrer as to its sufficiency the general rule is that it should be liberally construed and upheld if it expressly or by reasonable inference states any cause of action. Secs. 263.07 and 263.27, Stats. Gregory III v. Madison Mobile Homes Park (1964), 24 Wis. (2d) 275, 128 N. W. (2d) 462; Rogers v. Oconomowoc (1962), 16 Wis. (2d) 621, 115 N. W. (2d) 635.

The material allegations of the complaint are, in substance: Royal P. Mayer died February 8, 1962; the plaintiff is his widow; his will, dated August 16, 1959, was admitted to probate in county court for Washington county in March of 1962; a copy of the will is annexed to the complaint and made a part thereof; requests were made by plaintiff for a copy of the inventory on June 5, 1962, and thereafter; a copy of the inventory and appraisal was received by the plaintiff November 28, 1962, and was annexed to the complaint and made a part thereof; the sole property of the deceased was of the value of $20,726.32, and the value of the property held jointly with his children was $37,836.20; under the terms of the will the plaintiff widow was to receive a life estate in the homestead with the remainder to the children, certain household goods, a right to rent the homestead, and the right to occupy a hunting lodge with the children; the remainder of the estate was to be divided equally between the three children; and as to each of the three children in separate causes of action the deceased fraudulently and secretly did create joint tenancies in his personal property with his children but retained dominion of the funds for the purpose and with the intent of avoiding his obligation and duty of reasonable support of his wife after his death, and that the children knew of his intent and conspired and colluded with him to defeat plaintiff's right to maintenance and support following the death of her husband.

Upon these allegations the plaintiff demands the transfers creating the joint tenancies be set aside and the proceeds be paid into the estate of the deceased.

The point dealing with the allegations of fraud may be summarily disposed of in favor of the plaintiff. While the word “fraudulently” standing alone is a mere conclusion and will not support a cause of action, the allegation that an act was done fraudulently when considered together with other allegations of the complaint that fairly apprise the defendant of the specific acts and conditions may be considered as an allegation of fact. Laun v. Kipp (1914), 155 Wis. 347, 145 N. W. 183, takes this liberal view as to the sufficiency of allegations of fraud. In Sederlund v. Sederlund (1922), 176 Wis. 627, 634, 187 N. W. 750, this court did hold that a widow may have a cause of action to recover personal property of the husband fraudulently transferred prior to death. (Recovery, however, was denied in that action.)

“Under the statutes of this state the husband is prohibited from incumbering or transferring his homestead without the signature of his wife. The wife also has inchoate rights of dower. The wife cannot be deprived of such rights by the husband without her consent. As to personal property, however, the situation is radically different. With the exception of the restrictions above referred to, a husband has the absolute right during his lifetime to make absolute disposition of his personal property as he deems fit, the wife having no vested or quasi-vested interest in such property. True, under the statutes of our state as they existed at the time of the assignments with respect to the personal property, certain provisions are made for the benefit of a widow which she is authorized to claim, and which she is entitled to, whether the husband dies testate or intestate. She is also entitled, under sub. (6), sec. 393S, Stats., in case of intestacy, to an equal share in the residue of the personal property with a child of the deceased, provided such deceased leaves but one child surviving him, and in all other instances she is entitled to one third of such residue. It is evident that these statutes are designed to enable the widow to obtain, in any event, such share of the estate of the deceased as the legislature deemed reasonable. The statute is a beneficent one and recognizes the rights of a widow resulting from the obligations of marriage.
“Where, therefore, a husband, shortly before his death, purports to transfer all or the greater portion of his property to others, which transfer has a tendency to frustrate the beneficent design of the statute with respect to a wife’s distributive share in her husband’s personal property, the amount of proof necessary to stamp such a transfer as fraudulent depends in every instance upon the particular facts existing in each case.”

Giving the complaint in this action the required liberal construction, we conclude it sufficiently states a cause of action for invasion of the plaintiff’s rights.

Although we have concluded that for the purpose of demurrer, under a liberal construction, the plaintiff states facts which constitute an invasion of her fights, does she state facts entitling her to relief? Can any right or remedy in her favor be enforced ?

We cannot consider the “wherefore” clause of the complaint to determine whether a cause of action is stated. It forms no part of the complaint. D'Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis. (2d) 390, 120 N. W. (2d) 70; Waldheim v. Bienenstok (1945), 248 Wis. 37, 20 N. W. (2d) 633; Spencer Co-operative Live Stock Shipping Asso. v. Schultz (1932), 209 Wis. 344, 245 N. W. 99; Whittier v. Atkinson (1941), 236 Wis. 432, 295 N. W. 781; Laun v. Kipp, supra; Hiles v. Johnson (1886), 67 Wis. 517, 30 N. W. 721. Of course, we can consider the wherefore clause to aid us in determining the intention of the pleader. North Side Loan & Building Society v. Nakielski (1906), 127 Wis. 539, 106 N. W. 1097.

It is evident that plaintiff seeks to have certain transfers set aside; to have the proceeds so recovered deposited in the estate because the will gives plaintiff an inadequate share of decedent’s estate. The only inference permissibly flowing therefrom is that plaintiff has instituted this cause of action so as to recover her statutory share of her husband’s estate, increased by the amount of money the estate would recover from a setting aside of the transfers of property by the decedent.

Plaintiff argues that we cannot consider future events in determining whether a cause of action is stated. In general, this may be true. But in seeking to find a cause of action for plaintiff we must be permitted to determine what rights of hers she seeks to have enforced.

Viewed this way, we think a fatal omission of fact appears on the face of the complaint. Plaintiff has not pleaded that she elected to take against the will of her deceased husband. This is material so far as her right of recovery bears on whether plaintiff has stated a cause of action.

It must not be overlooked that a cause of action to set aside the transfers, in vacuo, is meáningless. Somebody must benefit by such action. Here plaintiff is seeking such a benefit — at least this is the only fair inference to be drawn from the complaint. The consequences of plaintiff’s action to set aside these transfers would be to place the assets in the estate. Therefore, our inquiry must be whether plaintiff can benefit by her (possible) right to have such transactions set aside.

The omission to plead the fact of election against the will cannot be supplied by the court. The presumption is that such fact does not exist. Meyer v. Briggs (1963), 18 Wis. (2d) 628, 119 N. W. (2d) 354; Sun Prairie v. Wisconsin Power & Light Co. (1933), 213 Wis. 277, 251 N. W. 605; Hoard v. Gilbert (1931), 205 Wis. 557, 238 N. W. 371. Further, were the election in fact timely filed and appearing in the record, we still could not consider it. A demurrer cannot be aided by facts appearing in the record but which do not appear upon the face of the complaint. Benedix v. German Ins. Co. (1890), 78 Wis. 77, 47 N. W. 176.

On the face of the complaint it appears that no election has been made — timely or otherwise. There being no election, the proceeds of recovery would go into the estate and would have to be distributed in accordance with the terms of the will. Under the terms of the will the plaintiff could not benefit thereby. Under the complaint she states no cause of action entitling her to relief, therefore the demurrer must be sustained.

Ordinarily, when a demurrer to a complaint is sustained upon the ground that it does not state facts sufficient to constitute a cause of action, the plaintiff is given the right to plead over. This right is not extended in those cases where it is apparent that no valid cause of action can be stated.

It appears from the complaint that the will was admitted to probate in March of 1962. It conclusively appears from the record before us that no-attempt was made by the plaintiff widow to file her election to take under the laws of descent and distribution until June 5, 1964, when she filed a petition for leave to file her election. (This petition was served on counsel for the executors July 5, 1963.)

Sec. 233.14, Stats., provides:

“When deemed to have elected to take devise etc. When a widow shall be entitled to an election under either sections 233.12 and 233.13 she shall be deemed to have elected to take such jointure, devise or other provision unless within one year after the filing of a petition for the appointment of an administrator of the estate or for the probate of the will of her husband she file in the court having jurisdiction of the settlement of his estate notice in writing that she elects to take the provisions made for her by law instead of such jointure, devise or other provision; . . .”

This statute has been construed to be a statute of limitations that extinguishes the widow’s right to elect after the expiration of the statutory period.

“Shocking as that is to a high moral sense of right and wrong, it must be admitted that the purpose of the statute (sec. 2172, Stats. 1898) providing that when a widow is put to her election as to whether she will take under the law or the will of her husband, she shall be deemed to have chosen the latter unless she files in the court having jurisdiction of the settlement of the estate, within one year after the filing of the petition for the probate of the will, a notice in writing that she elects to take the former, was to relieve the settlement of estates from the uncertainties that existed at the common law by reason of the equitable doctrine as to the time when a widow must make an election in the circumstances stated, and the binding effect thereof; that it was intended to operate as a statute of limitation, fixing with certainty a time, deemed by legislative wisdom to be reasonable, within which a widow must assert, by an affirmative act as indicated, her intention to take the rights secured to her by law in her husband’s estate, or suffer the penalty of their irretrievable loss. Further, it must be admitted that such statute should be given the same force and effect as any other statute of limitations. There are no two rules governing such statutes. Equity deals the same with one as with another. It must be held, when fully run in a given case, to have absolutely extinguished the right upon which it has operated, and created in those in whose favor it has run a new right of equal dignity, as regards legal and equitable cognizance, with the one displaced by law. Eingartner v. Illinois S. Co. 103 Wis. 373. Such being the case, the statute in question must be enforced to its full effect, the same as any other limitation act, regardless of the hardship thereby inflicted in any particular case, unless circumstances exist precluding its being insisted upon under the doctrine of equitable estoppel.” Ludington v. Patton (1901), 111 Wis. 208, 231, 86 N. W. 571.

Equitable estoppel is not alleged here nor could it be. The inventory and appraisal were not filed within three months, as directed by sec. 312.01, Stats. If the plaintiff relied, to her detriment, upon this failure, it could have been corrected by request or petition for citation by the court by virtue of sec. 312.03 (2). In any event she received a copy of the inventory in November, 1962, and had until March of 1963 to file her election. She did not attempt to file her election until June of 1964.

Under these facts it is clear that plaintiff’s right to file a widow’s election is extinguished and she is bound by the terms of the will under which a successful action to set aside the joint tenancies would be of no benefit to her. No useful purpose can be accomplished by allowing her to plead over, and the complaint should be dismissed.

The plaintiff contends that the probate division of the county court does not have jurisdiction. Her counsel argues that property in joint tenancy forms no part of the estate, Will of Barnes (1958), 4 Wis. (2d) 22, 89 N. W. (2d) 807, and hence there is no probate-division jurisdiction. Such a contention overlooks the plain meaning of sec. 253.10 (2) (a), Stats., which confers subject-matter jurisdiction on the probate division where the action or “controversy is incidental to and necessary for the complete administration of the estate.”

While it- is true that the county and circuit courts have concurrent (and therefore equal) jurisdiction, ch. 253, Stats., indicates the purpose to keep all matters affecting the probate of estates in one court. Thus, sec. 253.03 (2) gives the county court jurisdiction to hear matters incidental to and necessary for the complete administration of estates — regardless of who has possession of the property. Sec. 253.03 (2) changed the rule in Estate of Nols (1947), 251 Wis. 90, 28 N. W. (2d) 360, that where the property was in the possession of persons claiming adversely to the estate, the county court did not have jurisdiction. Thus, under the old law the joint-tenancy property here would not be in the hands of the administrators, because legal title passes to the survivor at the moment of death. Nols was rendered dead law by ch. 438, sec. 2, Laws of 1949.

Ch. 315, sec. 16, Laws of 1959, created sec. 253.10 (2), Stats., which section was entitled “Probate Jurisdiction.” This section also grants a county court, probate division, jurisdiction over matters which are incidental, and necessary, to the complete determination of the administration of estates. By ch. 495, sec. 68, Laws of 1961, sec. 253.10 (2) was renumbered sec. 253.10 (2) (a).

Clearly, the matter of setting aside these joint tenancies and including them in the estate of decedent is a matter touching upon the incidental and necessary administration of the estate. At the very minimum, the certificate of termination must come from the probate division. So, too, must an appraisal for inheritance taxes. This matter does affect title to property, which title question must be settled before closing the estate. See Estate of Elsinger (1961), 12 Wis. (2d) 471, 107 N. W. (2d) 580; Laabs v. Milwaukee (1940), 236 Wis. 192, 294 N. W. 1, 294 N. W. (2d) 814; Ottstadt v. Jardine (1938), 229 Wis. 85, 281 N. W. 644. It has not been argued or shown that the county court, probate division, cannot afford as complete relief as the circuit court. Wisdom v. Wisdom (1914), 155 Wis. 434, 145 N. W. 126. We conclude that the county court of Washington county had jurisdiction to hear and determine this action.

By the Court. — Orders affirmed with directions to enter judgment dismissing the complaint.

        Miller v. Welworth Theatres (1956), 272 Wis. 355, 75 N. W. (2d) 286.

       Ch. 253 was repealed and re-created by ch. 315, Laws of 1959. Sec. 253.03 was not re-created. However, the principle of concurrent jurisdiction, in general, continues to be reflected in the present ch. 253.


author: CurRie, C. J.

text:
    Hoffman and wife, Plaintiffs, v. Red Owl Stores, Inc., and another, Defendants. [Two appeals.]

      February 5 —
    March 2, 1965.

      For the defendants there was. a brief by Benton, Bosser, Fulton, Menn & Nehs of Appleton, and oral argument by David L. Fulton.

    For the plaintiffs there was a brief by Van Hoof, Van Hoof & Wylie of Little Chute, and oral argument by Gerard H. Van Hoof.

       Motion for rehearing denied, with costs, on April 27j 1965.

   CurRie, C. J.

The instant appeal and cross appeal present these questions:

(1) Whether this court should recognize causes of action grounded on promissory estoppel as exemplified by sec. 90 of Restatement, 1 Contracts ?
(2) Do the facts in this case make out a. cause of action for promissory estoppel ?
(3) Are the jury’s findings with respect to damages sustained by the evidence ?

Recognition of a Cause of Action Grounded on Promissory Estoppel.

Sec. 90 of Restatement, 1 Contracts, provides (at p. 110) :

“A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”

The Wisconsin Annotations to Restatement, Contracts, prepared under the direction of the late Professor William H. Page and issued in 1933, stated (at p. 53, sec. 90) :

“The Wisconsin cases do not seem to be in accord with this section of the Restatement. It is certain that no such proposition has ever been announced by the Wisconsin court and it is at least doubtful if it would be approved by the court.”

Since 1933, the closest approach this court has made to adopting the rule of the' Restatement occurred in the recent case of Lazarus v. American Motors Corp. (1963), 21 Wis. (2d) 76, 85, 123 N. W. (2d) 548, wherein the court stated:

“We recognize that upon different facts it would be possible for a seller of steel to have altered his position so as to effectuate the equitable considerations inherent in sec. 90 of the Restatement.”

While it was not necessary to the disposition of the Lazarus Case to adopt the promissory-estoppel rule of the Restatement, we are squarely faced in the instant case with that issue. Not only did the trial court frame the special verdict on the theory of sec. 90 of Restatement, 1 Contracts, but no other possible theory has been presented to or discovered by this court which would permit plaintiffs to recover. Of other remedies considered that of an action for fraud and deceit seemed to be the most comparable. An action at law for fraud, however, cannot be predicated on unfulfilled promises unless the promisor possessed the present intent not to perform. Suskey v. Davidoff (1958), 2 Wis. (2d) 503, 507, 87 N. W. (2d) 306, and cases cited. Here, there is no evidence that would support a finding that Lukowitz made any of the promises, upon which plaintiffs’ complaint is predicated, in bad faith with any present intent that they would not be fulfilled by Red Owl.

Many courts of other jurisdictions have seen fit over the years to adopt the principle of promissory estoppel, and the tendency in that direction continues. As Mr. Justice McFaddin, speaking in behalf of the Arkansas court, well stated, that the development of the law of promissory estoppel “is an attempt by the courts to keep remedies abreast of increased moral consciousness of honesty and fair representations in all business dealings.” Peoples National Bank of Little Rock v. Linebarger Construction Co. (1951), 219 Ark. 11, 17, 240 S. W. (2d) 12. For a further discussion of the doctrine of promissory estoppel, see 1A Corbin, Contracts, pp. 187 et seq., secs. 193-209; 3 Pomeroy’s Equity Jurisprudence (5th ed.), pp. 211 et seq., sec. 808b; 1 Williston, Contracts (Jaeger’s 3d ed.), pp. 607 et seq., sec. 140; Bayer, Promissory Estoppel:. Requirements and Limitations of the Doctrine, 98 University of Pennsylvania Law Review (1950), 459; Seavey, Reliance Upon Gratuitous Promises or Other Conduct, 64 Harvard Law Review (1951), 913 ;Annos. 115 A. L. R. 152, and48 A. L. R. (2d) 1069.

The Restatement avoids use of the term “promissory estoppel,” and there has been criticism of it as an inaccurate term. See 1A Corbin, Contracts, p. 232 et seq., sec. 204. On the other hand, Williston advocated the use of this term or something equivalent. 1 Williston, Contracts (1st ed.), p. 308, sec. 139. Use of the word “estoppel” to describe a doctrine upon which a party to a lawsuit may obtain affirmative relief offends the traditional concept that estoppel merely serves as a shield and cannot serve as a sword to create a cause of action. See Utschig v. McClone (1962), 16 Wis. (2d) 506, 509, 114 N. W. (2d) 854. “Attractive nuisance” is also a much-criticized term. See concurring opinion, Flamingo v. Waukesha (1952), 262 Wis. 219, 227, 55 N. W. (2d) 24. However, the latter term is still in almost universal use by the courts because of the. lack of a better substitute. The same is also true of the wide use of the term “promissory estoppel.” We have employed its use in, this opinion not only because of its extensive use by other courts but also since a more-accurate equivalent has not been devised.

Because we deem the doctrine of promissory estoppel, as stated in sec. 90 of Restatement,, 1 Contracts, is one which supplies a needed tool which courts may employ in a proper case to prevent injustice, we endorse and adopt it.

Applicability of Doctrine to Facts of this Case.

The record here discloses a number of promises and assurances given to Hoffman by Lukowitz in behalf of Red Owl upon which plaintiffs relied and acted upon to their detriment.

Foremost were the promises that for the sum of $18,00.0 Red Owl would establish Hoffman in a store. After Hoffman had sold his grocery store and paid the $1,000 on the Chilton lot, the $18,000 figure was changed to $24,100. Then in November, 1961, Hoffman was assured that if the $24,100 figure were increased by $2,000 the deal would go through. Hoffman was induced to sell his grocery store fixtures and inventory in June, 1961, on the promise that he would be in his new store by fall. In November, plaintiffs sold their bakery building on the urging of defendants and on the assurance that this was the last step necessary to have the deal with Red Owl go through.

We determine that there was ample evidence to sustain the answers of the jury to the questions of the verdict with respect to the promissory representations made by Red Owl, Hoffman’s reliance thereon in the exercise of ordinary care, and his fulfilment of the conditions required of him by the terms of the negotiations had with Red Owl.

There remains for consideration the question of law raised by defendants that agreement was never reached on essential factors necessary to establish a contract between Hoffman and Red Owl. Among these were the size, cost, design, and layout of the store building; and the terms of the lease with respect to rent, maintenance, renewal, and purchase options. This poses the question of whether the promise necessary to sustain a cause of action for promissory estoppel must embrace all essential details of a proposed transaction between promisor and promisee so as to be the equivalent of an offer that would result in a binding contract between the parties if the promisee were to accept the same.

Originally the doctrine of promissory estoppel was invoked as a substitute for consideration rendering a gratuitous promise enforceable as a contract. See Williston, Contracts (1st ed.), p. 307, sec. 139. In other words, the acts of reliance by the promisee to his detriment provided a substitute for consideration. If promissory estoppel were to be limited to only those situations where the promise giving rise to the cause of action must be so definite with respect to all details that a contract would result were the promise supported by consideration, then the defendants’ instant promises to Hoffman would not meet this test. However, sec. 90 of Restatement, 1 Contracts, does not impose the requirement that the promise giving rise to the cause of action must be so comprehensive in scope as to meet the requirements of an offer that would ripen into a contract if accepted by the promisee. Rather the conditions imposed are:

(1) Was the promise one which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee ?
(2) Did the promise induce such action or forbearance?
(3) Can injustice be avoided only by enforcement of the promise ?

We deem it would be a mistake to regard an action grounded on promissory estoppel as the equivalent of a breach-of-contract action. As Dean Boyer points out, it is desirable that fluidity in the application of the concept be maintained. 98 University of Pennsylvania Law Review (1950), 459, at page 497. While the first two of the above-listed three requirements of promissory estoppel present issues of fact which ordinarily will be resolved by a jury, the third requirement, that the remedy can only be invoked where necessary to avoid injustice, is one that involves a policy decision by the court. Such a policy decision necessarily embraces an element of discretion.

We conclude that injustice would result here if plaintiffs were not granted some relief because of the failure of defendants to keep their promises which induced plaintiffs to act to their detriment.

Damages.

Defendants attack all the items of damages awarded by the jury.

The bakery building at Wautoma was sold at defendants’ instigation in order that Hoffman might have the net proceeds available as part of the cash capital he was to invest in the Chilton store venture. The evidence clearly establishes that it was sold at a loss of $2,000. Defendants contend that half of this loss was sustained by Mrs. Hoffman because title stood in joint tenancy. They point out that no dealings took place between her and defendants as all negotiations were had with her husband. Ordinarily only the promisee and not third persons are entitled to enforce the remedy of promissory estoppel against the promisor. However, if the promisor actually foresees, or has reason to foresee, action by a third person in reliance on the promise, it may be quite unjust to refuse to perform the promise. 1A Corbin, Contracts, p. 220, sec. 200. Here not only did defendants foresee that it would be necessary for Mrs. Hoffman to sell'her joint interest in the bakery building, but defendants actually requested that this be done. We approve the jury’s award of $2,000 damages for the loss incurred by both plaintiffs in this sale.

Defendants attack on two grounds the $1,000 awarded because of Hoffman’s payment of that amount on the purchase price of the Chilton lot. The first is that this $1,000 had already been lost at the time the final negotiations with Red Owl fell through in January, 1962, because the remaining $5,000 of purchase price had been due on October 15, 1961. The record does not disclose that the lot owner had foreclosed Hoffman’s interest in the lot for failure to pay this $5,000. The $1,000 was not paid for the option, but had been paid as part of the purchase price at the time Hoffman elected to exercise the option. This gave him an equity in the lot which could not be legally foreclosed without affording Hoffman an opportunity to pay the balance. The second ground of attack is that the lot may have had a fair market value of $6,000, and Hoffman should have paid the remaining $5,000 of purchase price. We determine that it would be unreasonable to require Hoffman to have invested an additional $5,000 in order to protect the $1,000 he had paid. Therefore, we find no merit to defendants’ attack upon this item of damages.

We also determine it was reasonable for Hoffman to have paid $125 for one month’s rent of a home in Chilton after defendants assured him everything would be set when plaintiff sold the bakery building. This was a proper item of damage.

Plaintiffs never moved to Chilton because defendants suggested that Hoffman get some experience by working in a Red Owl store in the Fox River Valley. Plaintiffs, therefore, moved to Neenah instead of Chilton. After moving, Hoffman worked at night in an Appleton bakery but held himself available for work in a Red Owl store. The $140 moving expense would not have been incurred if plaintiffs had not sold their bakery building in Wautoma in reliance upon defendants’ promises. We consider the $140 moving expense to be a proper item of damage.

We turn now to the damage item with respect to which the,trial court granted a new trial, i.e., that arising from the sale of the Wautoma grocery-store fixtures and inventory for which the jury awarded $16,735. The trial court ruled that Hoffman could not recover for any loss of future profits for the summer months following the sale on June 6, 1961, but that damages would be limited to the difference between the sales price received and the fair market value of the assets sold, giving consideration to any goodwill attaching thereto by reason of the transfer of a going business. There was no direct evidence presented as to what this fair market value was on June 6, 1961. The evidence did disclose that Hoffman paid $9,000 for the inventory, added $1,500 to it and sold it for $10,000 or a loss of $500. His 1961 federal income-tax return showed that the grocery equipment had been purchased for $7,000 and sold for $7,955.96. Plaintiffs introduced evidence of the buyer that during the first eleven weeks of operation of the grocery store his gross sales were $44,000 and his profit was $6,000 or roughly 15 percent. On cross-examination he admitted that this was gross and not net profit. Plaintiffs contend that in a breach-of-contract action damages may include loss of profits. However, "this is not a breach-of-contract action.

The only relevancy of evidence relating to profits would be with respect to proving the element of goodwill in establishing the fair market value of the grocery inventory and fixtures sold. Therefore, evidence of profits would be admissible to afford a foundation for expert opinion as to fair market value.

Where damages are awarded in promissory estoppel instead of specifically enforcing the promisor’s promise, they should be only such as in the opinion of the court are necessary to prevent injustice. Mechanical or rule-of-thumb approaches to the damage problem should be avoided. In discussing remedies to be applied by courts in promissory estoppel we quote the following views of writers on the subject:

“Enforcement of a promise does not necessarily mean Specific Performance. It does not necessarily mean Damages for breach. Moreover the amount allowed as Damages may be determined by the plaintiff’s ¡expenditures or change of position in reliance as well as by the value to him of the promised performance. Restitution is also an ‘enforcing’ remedy, although it is often said to be based upon some kind of a rescission. In determining what justice requires, the court must remember all of its powers, derived from equity, law merchant, and other sources, as well as the common law. Its decree should be molded accordingly.” 1A Corbin, Contracts, p. 221, sec. 200.
“The wrong is not primarily in depriving the plaintiff of the promised reward but in causing the plaintiff to change position to his detriment. It would follow that the damages should not exceed the loss caused by the change of position, which would never be more in amount, but might be less, than the promised reward.” Seavey, Reliance on Gratuitous Promises or Other Conduct, 64 Harvard Law Review (1951), 913, 926.
“There likewise seems to be no positive legal requirement, and certainly no legal policy, which dictates the allowance of contract damages in every case where the defendant’s duty is consensual.” Shattuck, Gratuitous Promises — A New Writ?, 35 Michigan Law Review (1936), 908, 912.

At the time Hoffman bought the equipment and inventory of the small grocery store at Wautoma he did so in order to gain experience in the grocery-store business. At that time discussion had already been had with Red Owl representatives that Wautoma might be too small for a Red Owl operation and that a larger city might be more desirable. Thus Hoffman made this purchase more or less as a temporary experiment. Justice does not require that the damages awarded him, because of selling these assets at the behest of defendants, should exceed any actual loss sustained measured by the difference between the sales price and the fair market value.

Since the evidence does not sustain the large award of damages arising from the sale of the Wautoma grocery business, the trial court properly ordered a new trial on this issue.

By the Court. — Order affirmed. Because of the cross appeal, plaintiffs shall be limited to taxing but two thirds of their costs.

       Among the many cases which have granted relief grounded upon promissory estoppel are: Goodman v. Dicker (D. C., D. C. 1948), 169 Fed. (2d) 684; Drennan v. Star Paving Co. (1958), 51 Cal. (2d) 409, 333 Pac. (2d) 757; Van Hook v. Southern California Waiters Alliance (1958), 158 Cal. App. (2d) 556, 323 Pac. (2d) 212; Chrysler Corp. v. Quimby (1958), 51 Del. 264, 144 Atl. (2d) 123, 144 Atl. (2d) 885; Lusk-Harbison-Jones, Inc., v. Universal Credit Co. (1933), 164 Miss. 693, 145 So. 623; Feinberg v. Pfeiffer Co. (Mo. App. 1959), 322 S. W. (2d) 163; Schafer v. Fraser (1955), 206 Or. 446, 290 Pac. (2d) 190, 294 Pac. (2d) 609; Northwestern Engineering Co. v. Ellerman (1943), 69 S. D. 397, 10 N. W. (2d) 879.

       See Boyer, 98 University of Pennsylvania Law Review (1950), 459, 460. “Enforcement” of the promise embraces an award of damages for breach as well as decreeing specific performance.

       For expression of the opposite view, that courts in promissory-estoppel cases should treat them as ordinary breach of contract cases and allow the full amount of damages recoverable in the latter, see note, 13 Vanderbilt Law Review (1960), 705.


text:
    Baumgarten, Plaintiff and Appellant, v. Jones, d/b/a Jones Trucking Company, and others, Defendants: O’Keefe and another, Defendants and Respondents.

      February 5 —
    March 2, 1965.

      For the appellant there was a brief and oral argument by John E. Esler of Kaukauna.
    For the respondents there was a brief by Klueter, Larson & MacKenzie of Wausau, and oral argument by H. R. Klueter.

       Case previously reported in 21 Wis. (2d) 467.

   Beilfuss, J.

The issue before us is whether the trial court abused its discretion in (1) finding the jury award of $4,500 for personal injuries was excessive, and (2) in fixing $3,000 as a reasonable measure for such damages.

As we stated in Olson v. Siordia (1964), 25 Wis. (2d) 274, 284, 130 N. W. (2d) 827:

“In reviewing the actions of the trial court as to damage verdicts, the rules are set forth in Boodry v. Byrne (1964), 22 Wis (2d) 585, 588, 589, 126 N. W. (2d) 503, as follows:
“ ‘Where a trial court has reviewed the evidence and has found a jury verdict awarding damages to be excessive and has fixed a reduced amount therefor, and has determined that there should be a new trial on damages unless the plaintiff exercises an option to take judgment on the reduced amount, this court will reverse only if we find an abuse of discretion on the part of the trial court. Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 571, 117 N. W. (2d) 660, and cases cited therein.
“ ‘In reviewing the evidence to determine whether the damages are excessive both the trial court and this court must view the evidence in the light most favorable to plaintiff. Kincannon v. National Indemnity Co. (1958), 5 Wis. (2d) 231, 233, 92 N. W. (2d) 884. The trial court, however, is not required to search out one or several isolated pieces of testimony, which standing alone might sustain the damages found by the jury, but rather must review all the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff. On appeal from a determination by the trial court that the found damages were excessive, this court will not find an abuse of discretion if there exists a reasonable basis for the trial court’s determination after resolving any direct conflicts in the testimony in favor of plaintiff.’ ”

A review of the evidence in this case reveals that the plaintiff at the time of the accident, on November 12, 1960, was thirty-five years of age. He testified that as a result of the accident he was knocked unconscious and remained so for two or three days, and suffered headaches for two or three months thereafter; and that these headaches continue to persist off and on. He sustained a lacerated ear, some minor cuts to the chin, both cheeks, and knees. He stated that his teeth had been injured, and as a result two had been pulled and one had to be capped. His shoulder hurt for a time but the pain was gone at the time of trial. His chest hurt him for a period of time. He testified to difficulty with his left knee in that it was weak and bothered him at work. He was taken to the hospital and released on the third day. He was off his regular occupational work for one week. He states that he could not do his farmwork for a period of three to three and one-half months, but hired someone to do the work for him.

He was attended at the hospital by Dr. Hale, of Appleton, and Dr. Hale sutured the ear. Dr. Hale’s bill was $25. The hospital charge was $67.35. His wage loss was $107.12.

The only doctor who testified in his behalf was Dr. Bachhuber. He saw the plaintiff four days after the accident, on November 16th, after his release from the hospital. The doctor testified that the history he received was that the plaintiff was unconscious until the next morning. He diagnosed his injury as a contusion to the left knee, with abrasion; that the knee bothered him when walking but was improving; that he had a laceration over his left ear which was healing; and that all of the sutures had been removed but one. This was removed two days later, at which time the plaintiff was feeling O. K. The wound to the ear had healed. There was some swelling and stiffness in the knee. He did not see him again until almost six months later, on May 11, 1961. The knee had improved, but still troubled him. X rays were had on May 15, 1961, and revealed no apparent bone injury but indicated some arthritic changes which the doctor diagnosed as traumatic arthritis. He saw him again on May 31st and injected the knee with hydrocortisone. He saw him again on June 7th and the knee was considerably better, and less swollen. Another injection was administered. He was again seen on June 21st, and the knee continued to improve, and the third injection was administered and two CCs of fluid were aspirated from the knee. On July 12, 1961, he saw him again, and the knee had improved and the swelling and soreness were gone. There was very little crepitus on movement. There seems to be a slight thickening of the knee. The patient was advised that there was a tendency that the condition to his knee might recur.

About a month or two before the trial a small white cyst appeared on the left ear, which was evacuated after puncture. There is a likelihood of a recurrence of the cyst.

The doctor, on questioning, testified that “it would seem he must have had a concussion, with the resulting headaches.” On cross-examination the doctor testified that the plaintiff had never complained to him' about headaches. The plaintiff had disclosed in his history to the doctor that he had no headaches, no nausea or vomiting following the accident.

In November, 1960, when he first saw him, Dr. Bachhuber did not treat the plaintiff’s knee. The plaintiff was simply advised to use hot applications and take reasonable care of his knee. The doctor admitted that arthritis could occur without trauma. He thought he could distinguish between traumatic and hypertrophic arthritis. He made no X ray comparison with the right knee. There was never any complaint about loss of hearing until the morning of trial.

Dr. Mielke testified on behalf of the defendants that he found two minor scars on the left knee and a third one a little lower down, which was about an inch long and a quarter of an inch wide; that motion of the knee was entirely normal; that inspection of the knee was normal; that circumferences of the calf and thigh muscles on both sides were equal; that there was no atrophy or wasting of the muscles; that plaintiff was able to walk normally, able to hop around the room on one foot, able to sit on his heels, and pursued the exercises without any voluntary expression of pain. Both knees were X rayed, from front to back and from the sides, and a comparison of the X rays showed no difference in the knees, nor were there any bony or cartilaginous changes observed. Both knees looked normal to Dr. Mielke. It was his opinion that there was no traumatic arthritis. He considered that traumatic arthritis might develop when the cartilage covering the bone in the knee had been fractured with a resulting distortion of the coverage.

This then in substantial detail contains the record of evidence relating to the injuries to this plaintiff. Dr. Hale was not called and no excuse made for his absence. The dentist who allegedly took care of plaintiffs teeth was not called and no excuse was made for his absence.

We conclude that the learned and able trial judge did not abuse his judicial discretion in determining the award of $4,500 for personal injuries suffered by the plaintiff was excessive. While it is possible the plaintiff may have sustained the injuries he claimed so as to justify an award of $4,500, awards for damages must be based upon proof of probabilities so as to take the awards out of the field of speculation and conjecture.

The rule stated in Makowski v. Ehlenbach (1960), 11 Wis. (2d) 38, 42, 103 N. W. (2d) 907, applies to the facts of this case:

“A jury may mistakenly assume (without supporting evidence) that there have been, or will be certain effects from an injury or fix compensation for sufficiently proved effects of injury at a figure which is beyond the range of reasonably debatable amounts. In a case where it is clear to the court that the amount awarded must necessarily reflect an allowance for the effects of injury not sufficiently proved or reflect a fate of compensation which is beyond reason, the court will declare the damages excessive!”

Upon review of a reasonable amount awarded to an injured party in lieu of a new trial because of the trial court’s superior position to view the witnesses and evidence as presented, our inquiry is limited to a determination of whether the amount awarded is within reasonable limits.

From the facts presented above, we conclude that an award of $3,000 for the personal injuries suffered by the plaintiff is within reasonable limits and, therefore, not an abuse of discretion by the trial court. The order of the trial court must be affirmed.

By the Court. — Order affirmed. Plaintiff to have ten days from the date our remittitur is received by the clerk of circuit court to exercise the option granted.


author: Fairchild, J.

text:
    Pavela and wife, Plaintiffs and Appellants, v. Fliesz and others, Defendants: Dielmann and wife, Defendants and Respondents.

      February 5 —
    March 2, 1965.

      For the appellants there was a brief by Phillips & Richards of Kenosha, and oral argument by Charles J. Richards.

    For the respondents there was a brief by Cotton & Rose and William S. Rose, all of Kenosha, and oral argument by William S. Rose.

   Fairchild, J.

Prior to 1948, Mr. and Mrs. John Zapf owned both parcels involved in this action. They had lived in a house on the southerly (Pavela) parcel, and they built a house on the northerly (Dielmann) parcel, into which they moved. In March, 1948, they conveyed the- southerly house and lot to a Mr. and Mrs. Sheridan, predecessors of the Pavelas. The land was described, in material part, as follows:

“. . . Commencing at the point which is ten hundred seventy-one (1071) feet west of the east line of said quarter section and six hundred seventy-three and 75/100 (673.75) feet north of the south line thereof; thence east one hundred twelve and 66/100 (112.66) feet to the west line of 33rd Avenue; thence north on the west line of 33rd Avenue, forty (40) feet; thence west one hundred twelve and 66/100 (112.66) feet; thence south, parallel with the west line of 33rd Avenue, forty (40) feet to the place of beginning, said premises to be known as lot eighteen (18) in block twelve (12) of First Addition to Kenosha Center, when same is placed on record; . . .”

In May, 1948, the Zapfs conveyed the new house and lot to Mr. and Mrs. Dielmann. The land was described in material part, as follows :

“. . . Commencing at a point on the West line of Thirty-third (33rd) Avenue Two Hundred fifty-six and seventy-five hundredths (256.75) feet south of the south line of Fiftieth (50th) Street; thence west One Hundred Thirteen (113) feet; thence South Forty-one (41) feet; thence East One Hundred Thirteen (113) feet; thence North Forty-one (41) feet to beginning; being known as Lot Seventeen (17), Block Twelve (12) of the First Addition to Kenosha Center, when same is placed on record. . .

According to the metes-and-bounds description, the Diel-mann property is 41 feet wide (north-south) and the Pavela property is 40 feet wide. According to one surveyor, the north line of the Pavela parcel as described by metes and bounds in the deed would be two feet south of the south line of the Dielmann parcel and the distance from the northern line of the Dielmann property to the southern line of the Pavela property is 83 feet. According to the other surveyor, to whose testimony the circuit court gave greater weight, the distances are 2.55 feet and 83.55 feet, respectively.

The dispute, essentially, is over the effect to be given to the part of the description which refers to the Pavela parcel as lot 18 of block 12 of “First Addition to Kenosha Center, when same is placed on record.” The Pavelas claim that said lot 18 is 42 feet wide, rather than 40 feet wide.

In 1916, Joseph Fliesz and his wife and a realty company executed a plat of a subdivision known as Kenosha Center, including Thirty-Third avenue, then known as Hamilton avenue, and a strip of land just east of it. The plat was approved and recorded. Evidently they intended to subdivide a strip of land just west of Thirty-Third avenue in similar fashion, and call it First Addition to Kenosha Center. As early as 1917, Mr. and Mrs. Fliesz conveyed several parcels in the latter area, describing each one by metes and bounds according to government survey, but stating in each case: “This parcel of land shall be known as Lot numbered . . . of Block numbered ... of the First Addition to Kenosha Center when same is put on record.” No plat of that subdivision has ever been recorded.

Plaintiffs’ Exhibit No. 2, in evidence over defendants’ objection, appears to be a map of the area. It is entitled “Kenosha Center” and shows a series of blocks along each side of Hamilton avenue. Hamilton avenue and the strip along the east side correspond with the recorded plat of Kenosha Center, and they are so designated on plaintiffs’ Exhibit No. 2. The strip along the west side of Hamilton avenue is designated “First Addition.” The map shows the division of blocks into lots, shows lot and block numbers, and dimensions of lots. Plaintiffs’ Exhibit No. 2 contains no indication of its date or origin. The city assessor, who produced it, testified that it had been used in the assessor’s office since 1950, when he first worked there, but that he also knew it had been in the possession of the assessor in 1936 when the witness was employed by the city in a different department. There was no evidence that any of the grantors or grantees in the various deeds had actual knowledge of plaintiffs’ Exhibit No. 2.

Except for a discrepancy in the width of lot 18, plaintiffs’ Exhibit No. 2 corresponds with the metes-and-bounds descriptions and the lot and block numbers contained on the deeds which appear in this record. The exhibit shows lot 17 as being 41 feet wide, the same as appears in the metes- and-bounds descriptions in the deeds to the Dielmann property. It shows lot 18, however, as being 42 feet wide, two feet more than the width appearing in the metes-and-bounds description of the Pavela property in all the deeds involving that parcel since 1917. If plaintiffs’ Exhibit No. 2 be deemed incorporated into the deeds under which the Pavelas claim, then there is a conflict between the width of 40 feet stated in the deed and the width of 42 feet so incorporated. It appears to be the general, though not universal, rule that in such case the dimension shown on the plat would prevail.

If, however, plaintiffs’ Exhibit No. 2 is not deemed incorporated by reference, there is nothing in the deeds on which the Pavelas rely to indicate that the property conveyed to them was more than 40 feet wide.

An unrecorded plat or other map referred to in a deed and identified by parol evidence will be treated, at least between the grantor and grantee, as effectively incorporated into the deed. The reference, however, must be definite and certain.

In the case before us, the deed references to the First Addition do not give any particulars by which a plat or map existing at the time the particular deed was given could be identified as the one referred to, other than the name of a proposed subdivision. Although there is evidence that plaintiffs’ Exhibit No. 2 was in existence at the assessor’s office during the time that many of the relevant deeds were delivered, we consider the evidence insufficient to establish that the various grantors and grantees had it in mind.

Accordingly we conclude that the Pavelas have shown paper title to a lot 40 feet wide, separated by a strip 2.55 feet wide from the lot, 41 feet wide, to which the Dielmanns have established paper title. Undoubtedly neither Mr. and Mrs. Fliesz nor Mr. and Mrs. Zapf intended to retain title to this narrow strip.

The circuit court was .of the opinion that it would be equitable to divide the 2.55-foot strip equally between the parties. Such division of land unintentionally omitted from conveyances of adjoining properties is somewhat analogous to the apportionment of discrepancies between the actual measurements of a subdivision and the measurements of the lots therein as shown by the recorded plat. We note that the southern edge of a driveway installed by Zapf when he owned both properties is at the north edge of the 2.55-foot strip. A garage, constructed by Dielmann, apparently without objection initially by the owners of the Pavela property, does encroach a few inches upon the strip. There was a period during which a fence was maintained approximately along the center of the strip, although this was admittedly part of a convenient enclosure for a small child, rather than for the purpose of marking the boundary. Except for that fence and the fence which the Pavelas erected at the edge of the Dielmann driveway shortly before they brought this action, it does not appear that any structure has been erected upon the 2.55-foot strip. Under the circumstances, we agree that the division made' by the circuit court was fair and equitable.

By the Court. — Judgment affirmed.

        Zuleger v. Zeh (1915), 160 Wis. 600, 150 N. W. 406; 11 C. J. S., Boundaries, p. 620, sec. 52 (c); Anno. 130 A. L. R., 643; 3 American Law of Property, p. 446; sec. 12.118.

       3 American Law of Property, pp. 407, 408, sec. 12.104; 1 Fitch, Abstracts and Titles to Real Property, pp. 294, 300, 301, sec. 178; 6 Thompson, Real Property (1963 replacement), p. 606, sec. 3052.

       Clark on Surveying and Boundaries (3d ed.), p. 533, sec. 539; Skelton, Boundaries and Adjacent Properties, pp. 8, 9, sec. 13; 6 Thompson, Real Property (1963 replacement), p. 606, sec. 3052.

         Van Deven v. Harvey (1960), 9 Wis. (2d) 124, 129, 100 N. W. (2d) 587.


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

      No. 03-0255-D.

      Decided March 13, 2003.

    2003 WI 18
    (Also reported in 657 N.W.2d 705.)

   IT IS ORDERED that the license of David G. Davies to practice law in the state of Wisconsin be suspended for 30 days, effective the date of this order;

IT IS FURTHER ORDERED that this suspension does not affect the existing suspensions for failure to comply with CLE requirements which would also have to be satisfied in order for Attorney Davies' license to practice law in Wisconsin to be reinstated;

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


author: PER CURIAM.

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

      No. 02-2001-D.

      Decided March 18, 2003.

    2003 WI 17
    (Also reported in 658 N.W.2d 438.)
   PER CURIAM.

¶ 1. We review the referee's recommendation that Attorney David R. Nott's license to practice law in Wisconsin be suspended for nine months for professional misconduct. His misconduct consists of neglecting client matters, refusing to return unearned fees, and failing to cooperate with the Office of Lawyer Regulation's (OLR) investigation into grievances filed by clients.

¶ 2. We determine that the seriousness of Attorney Nott's professional misconduct warrants a suspension of his license to practice law for nine months. We also find that Attorney Nott should make restitution to the Client Security Fund (CSF) and one client and that he be required to pay the costs of this proceeding.

¶ 3. Attorney Nott was admitted to practice law in Wisconsin in 1989 and practiced in Rock County. In 1999 Attorney Nott received a consensual private reprimand for misconduct consisting of failing to timely pursue a client's case and failing to inform the client of the result and dismissal of his case. On June 5, 2000, Attorney Nott's Wisconsin law license was suspended due to noncompliance with Continuing Legal Education (CLE) requirements. On August 27, 2001, this court temporarily suspended Attorney Nott's license for willful failure to cooperate with the OLR grievance investigations.

¶ 4. The complaint filed by the OLR on August 1, 2002, alleged misconduct with respect to three of Attorney Nott's former clients. The first client retained Attorney Nott to represent her in a Chapter 7 bankruptcy proceeding in October of 1999. Attorney Nott told the client he would not commence the bankruptcy until his $925 fee had been paid in full. The client made six payments totaling $925 by May 5, 2000, and believed Attorney Nott would then promptly start a bankruptcy proceeding on her behalf. In January of 2000 Attorney Nott sent the client a letter saying he was moving his law practice to Loves Park, Illinois, but would continue to represent her in the bankruptcy case. This was the last communication the client received from Attorney Nott and he never filed a bankruptcy action on her behalf.

¶ 5. Attorney Nott failed to notify the client of the June 5, 2000, administrative suspension of his law license. The client wrote Attorney Nott letters and left messages on his answering machine but received no response. The client filed a grievance against him in October 2000. The OLR sent Attorney Nott three letters asking for his written response to the client's grievance but he failed to respond.

¶ 6. The client applied for reimbursement of her bankruptcy retainer through the CSF. She was paid $575 by the CSF, which now has a claim against Attorney Nott in that amount. The client was unable to obtain reimbursement for the remaining $350 she paid Attorney Nott because she could not provide the CSF written receipts for those payments.

¶ 7. The second claim of misconduct alleged in the OLR's complaint involved Attorney Nott's representation of a client who retained Attorney Nott to file an action in a landlord/tenant case involving a security deposit that had not been returned to the client. On September 3, 1999, the second client paid Attorney Nott $474 to file the action. The client called Attorney Nott several times after paying the retainer inquiring as to the status of the case. Each time Attorney Nott told the client he was waiting for a court date. Attorney Nott never filed an action on the client's behalf. After Attorney Nott failed to respond to the client's messages, she filed a grievance against him. The OLR sent Attorney Nott several letters asking for a written response to the grievance but he failed to respond. The client was reimbursed $474 from the CSF, which now has a claim against Attorney Nott in that amount.

¶ 8. The third claim of misconduct alleged in the OLR's complaint involved a client who paid Attorney Nott a $2500 fee in August of 1999 to investigate an age discrimination charge. Attorney Nott reportedly researched the case and came to the conclusion that the client did not have a viable cause of action, but he failed to fully advise the client of his assessment of the case and the reasons for that conclusion. After Attorney Nott failed to return the client's phone calls the client filed a grievance with the OLR.

¶ 9. Attorney Eugene A. Gasiorkiewicz was appointed referee. Attorney Nott failed to file an answer to the OLR's complaint and the OLR moved for default judgment. Attorney Nott did not file any materials in opposition to the motion for default judgment and the referee granted such judgment on October 30, 2002. The referee issued his report and recommendation on November 7, 2002.

¶ 10. The referee concluded that by failing to proceed with a bankruptcy action on behalf of the first client and by failing to file an action on behalf of the second client, Attorney Nott violated SCR 20:1.3. The referee also concluded that by failing to notify the first and second clients of his June 5, 2000, CLE suspension and his inability to continue to represent them, Attorney Nott violated SCR 22.26(1)(a). The referee also concluded that by failing to return fees to the first and second clients when he provided no services for those fees and could no longer represent the clients because his law license had been suspended, Attorney Nott violated SCR 20:1.16(d).

¶ 11. The referee also found that by failing to respond to the OLR requests for written responses to the clients' grievances, Attorney Nott violated SCR 22.03(2). The referee further found that by failing to respond to numerous phone calls from the second client inquiring about the status of her case, by failing to keep the third client fully advised about the status of his investigation into the viability of the client's claim, and by failing to respond to inquiries from the third client, Attorney Nott violated SCR 20:1.4(a). Finally, the referee concluded that by misrepresenting to the second client that he was waiting for a court date when in fact he had never filed a court action on the client's behalf, Attorney Nott violated SCR 20:8.4(c).

¶ 12. The referee recommended that Attorney Nott's license to practice law in Wisconsin be suspended for nine months, that he be ordered to make restitution to the CSF in the amount of $1049, and that he be ordered to pay the costs of the proceeding.

¶ 13. On January 15, 2003, this court issued an order to show cause why Attorney Nott should not also be required to reimburse the first client for the monies she had paid to Attorney Nott for which she had not been reimbursed by the CSF. Attorney Nott did not respond to the order to show cause. The OLR filed a response saying it had contacted the first client and that she confirmed that Attorney Nott still owed her $350. The OLR said it believed it would be appropriate for Attorney Nott to be required to make restitution to the first client in the amount of $350, as well as making reimbursement to the Client Security Fund. We find that it is appropriate for Attorney Nott to make restitution of $350 to the first client.

¶ 14. We adopt the findings of fact and conclusions of law set forth in the referee's report and recommendation. Attorney Nott's misconduct with respect to his handling of the three client matters and his failure to cooperate with the OLR's investigation are serious failings warranting a suspension of his license. A nine-month suspension of his license to practice law is appropriate discipline for his professional misconduct.

¶ 15. IT IS ORDERED that the license of Attorney David R. Nott to practice law in Wisconsin remains suspended for a period of nine additional months, effective the date of this order.

¶ 16. IT IS FURTHER ORDERED that Attorney David R. Nott comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 17. IT IS FURTHER ORDERED that Attorney David R. Nott refund, within 60 days of the date of this order, $350 paid by the first client for her representation in a bankruptcy matter and that he also make restitution to the CSF in the amount of $1049. If these refunds are not made within the specified time, the license of Attorney David R. Nott to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 18. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney David R. Nott 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 David R. Nott to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 19. IT IS FURTHER ORDERED that the restitution to the first client and to the CSF is to be paid prior to paying costs to the Office of Lawyer Regulation.

       The OLR's complaint and the referee's report state that the client paid Attorney Nott'$975. Materials filed with the court by the OLR after the issuance of the referee's report indicate that the client paid Attorney Nott $925 rather than $975.

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

       SCR 22.26(1) (a) 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:
      (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.

       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 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 20:1.4(a) provides: "(a) 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."