text:
    In the Matter of the Bar Admission of Dominic J. Anderson: Dominic J. Anderson, Petitioner, v. Board of Bar Examiners, Respondent.
    Supreme Court

      No. 2005AP2061-BA.

      Oral argument April 28, 2006.

      Decided June 2, 2006.

    2006 WI 57
    (Also reported in 715 N.W.2d 586.)

      For the petitioner, there were briefs by Michael B. Van Sicklen, Daniel A. Kaplan, Theresa A. Andre and Foley & Lardner LLP, Madison, and oral argument by Michael B. Van Sicklen.

    For the respondent, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   PER CURIAM.

¶ 1. This is a review, pursuant to SCR 40.08(5) of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Dominic J. Anderson, satisfied the character and fitness requirement for admission to the State Bar of Wisconsin set forth in SCR 40.06(1). We reverse and remand the matter to the Board for further proceedings.

¶ 2. We appreciate the Board's concern regarding this candidate, and we appreciate the thorough investigation the Board conducted into Mr. Anderson's background and past conduct. The Board's inquiry revealed some troubling incidents in Mr. Anderson's past that raised substantial questions about his fitness to practice law. The duty to examine an applicant's qualifications for bar admission rests initially on the Board, and this court relies heavily on the Board's investigation and evaluation. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating admission to the Wisconsin bar. See In re Bar Admission of Rippl, 2002 WI 15, ¶ 3, 250 Wis. 2d 519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren, 2003 WI 37, ¶ 2, 261 Wis. 2d 150, 661 N.W.2d 27.

¶ 3. While we appreciate that the Board may have felt constrained to find that Mr. Anderson's past conduct precluded certifying his character and fitness for purposes of bar admission, we conclude that the incidents the Board relied upon, while certainly troubling, are sufficiently remote in time and not of sufficient gravity to warrant a conclusion that Mr. Anderson should be forever barred from admission to the practice of law in this state. Accordingly, we reverse.

¶ 4. Mr. Anderson is 38 years old. He is married and has a young daughter. He grew up on a small family dairy farm in rural Richland Center and graduated from Ithaca High School. He began his undergraduate work at UW-Richland before transferring to UW-Platteville because he was interested in a career in law enforcement. While at Platteville he joined the United States Army Reserve. He withdrew from college in the fall of 1990 to pursue active duty and spent eight months of service in Saudi Arabia as part of Operation Desert Shield/Storm. While in the military service Mr. Anderson was awarded the National Defense Service Medal, the Southwest Asia Service Medal, and the Driver and Mechanic Badge with Operator-S (Special) Bar. He received an honorable discharge, returned home and re-enrolled in classes at UW-Platteville.

¶ 5. Mr. Anderson transferred from the United States Army Reserve to the Wisconsin Army National Guard. While with the Guard unit, Mr. Anderson was selected by his unit commander to attend Officer Candidate School at the Wisconsin Military Academy. Upon graduation a year later he was promoted to second lieutenant, received his commission from then Governor Thompson, and supervised a platoon. At UW-Platteville he earned memberships in the Phi Kappa Phi Honor Society and the Wisconsin Criminal Justice Education Association Honor Society. He graduated from college summa cum laude with a 3.86 overall grade point average (GPA) and a 4.0 GPA in his major, Criminal Justice with an emphasis in Law Enforcement.

¶ 6. In early 1995 Mr. Anderson became employed by the Richland County Sheriffs Department. In early 1996 he joined the Monona Police Department. The record indicates that Mr. Anderson did well during his first three years on the Monona police force, and his supervising sergeant said that Mr. Anderson performed competently and professionally at all times during this period. Mr. Anderson acknowledges that his performance over an approximate six-month period beginning in the spring of 1999 was not up to the standards expected.

¶ 7. In April 1999 Mr. Anderson received a performance evaluation that rated him as being "below standards" in 11 of 21 categories. He submitted a lengthy response to the evaluation in which he disputed most of the negative comments, questioned the motivation of those who felt he was not performing satisfactorily, and said he felt that some incidents had been blown out of proportion.

¶ 8. In August 1999 Mr. Anderson was placed on administrative leave following some issues with the proper performance of his duties as a police officer. He was returned to active duty following a "fitness for duty" evaluation. The evaluator found Mr. Anderson to he defensive and said he did not seem to appreciate the seriousness of the situation and that his indecisiveness at work appeared to result from a fear of failure so that he seemed to make excuses rather than confront the problem. The evaluator concluded, however, that there was no psychopathology that would preclude Mr. Anderson's continuing to function in the capacity of a police officer. The evaluator also commented that Mr. Anderson needed to be honest with himself and his goals and suggested that perhaps he might find a career other than law enforcement to be more satisfying.

¶ 9. In October 1999 Mr. Anderson was charged with four counts of criminal wrongdoing relating to a social gathering that occurred after shift, while he was off duty, at a local Monona bar, and a subsequent after-bar party that he attended with some other off-duty police officers and police department employees. The conduct involved two women. One worked as a dispatcher at the Monona Police Department and the other was a 19-year-old who was at the bar that night when Mr. Anderson arrived.

¶ 10. Mr. Anderson admits that while he was at the bar he squeezed the dispatcher's breasts without her permission, but claims he was just horsing around and that he immediately realized the inappropriateness of his conduct but it was already too late. He also admits that he kissed the 19-year-old several times that evening, both at the bar and at the after-bar party, and he admits he put his hand in her pants but denies touching her genitals. He says the activity with the 19-year-old was all consensual. He also admits buying the 19-year-old drinks at the bar, and he says he had reason to know she was underage. A jury found Mr. Anderson not guilty of all offenses following a two day trial in June of 2000. Mr. Anderson resigned from the Monona Police Department in lieu of being terminated. After leaving the police force in order to better understand his behavior, Mr. Anderson voluntarily underwent an alcohol assessment which concluded he did not have a problem with alcohol. He also participated in some sessions with a counselor to explore psychological and emotional issues.

¶ 11. Following this incident, Mr. Anderson says he decided he wanted to pursue a career as an attorney. After working for a year at other employment, he entered the Washburn University School of Law in Topeka, Kansas in the fall of 2001. For financial reasons his wife and daughter remained in Wisconsin while he attended law school. Mr. Anderson did well in law school and graduated tied for ninth in his 148-student class. He worked as an unpaid legal extern for a federal district court judge, Honorable Sam A. Crow, and he also served as a legal intern in a criminal defense clinic during the fall semester of 2003.

¶ 12. In April 2004 Mr. Anderson filed his initial Wisconsin bar application, which he supplemented on June 29, 2004, and November 5, 2004. He took the bar exam in July 2004 and successfully passed it. He says if he is admitted to the Wisconsin bar he intends to practice in Richland Center where he grew up.

¶ 13. On December 10, 2004, the Board issued its preliminary decision to deny Mr. Anderson's bar application. In January 2005 Mr. Anderson requested an opportunity for a hearing. The Board granted his request for a hearing, and the hearing was held on the record before the Board on April 6, 2005.

¶ 14. At the hearing Mr. Anderson introduced evidence in support of his application for bar admission, including affidavits, letters of recommendation, and live testimony from his lifelong mentor, Gary Gut-knecht, a physical education and health education teacher in the Ithaca Public Schools. Mr. Anderson also testified on his own behalf.

¶ 15. In its July 2005 decision denying Mr. Anderson's application for bar admission, the Board found that Mr. Anderson failed to "demonstrate that he has the temperament to conduct himself in a manner required by the Code of Professional Responsibility" and that he failed to demonstrate that "he has the honesty to conform to that Code." In support of these findings the Board pointed to Mr. Anderson's conduct as a police officer, as evidenced by his job evaluations; his temperament, as evidenced by the psychological evaluation required by the Monona Police Department; his conduct as an off-duty police officer, as evidenced by the acts which led to his prosecution for sexual assault when his status and position of authority as an officer was known to the persons involved; his conduct as an off-duty police officer toward females in a public place where his status and position of authority was known to the persons involved; his history of job problems involving authority, leading to discharges from employment; and the great variance between his descriptions of his conduct and the descriptions of others.

¶ 16. The Board found that the positive references submitted by Mr. Anderson were substantially countered by contemporaneous adverse evaluations. It found that the positive testimony of Mr. Gutknecht referred to matters too distant in time to be relevant to Mr. Anderson's recent conduct. It found that the positive reference by the supervising sergeant at the Monona Police Department was not of sufficient value or credibility to overcome the written record of Mr. Anderson's negative evaluations and reprimands as a police officer. The Board specifically found that Mr. Anderson's testimony at the hearing was not credible.

¶ 17. The Board made the following conclusions:

1. The applicant failed to evidence the temperament necessary in an officer of the court by his conduct as a police officer and in other settings, which is relevant to his character and fitness under SCR 40.06(3).
2. The applicant misused his position of authority by his conduct as an off-duty police officer, which is relevant to his character and fitness under BA 6.02(g) and under SCR 40.06(3).
3. The applicant failed to demonstrate the honesty necessary in an officer of the court by his disingenuous, evasive, and non-credible responses to the Board, which is relevant to his character and fitness under BA 6.02(c) and (d), and under SCR 40.06(3).
4. The applicant failed to evidence the temperament necessary in an officer of the court by his conduct as a police officer and in other settings, which is relevant to his character and fitness under SCR 40.06(3).
5. The applicant knowingly violated the law by his presence in a bar with and buying alcohol for an underage female, which is relevant to his character and fitness under BA 6.02(a), and under SCR 40.06(3).

¶ 18. Mr. Anderson argues that the Board's findings are clearly erroneous because they do not fairly reflect the facts of record. He asserts that he does possess the requisite character and fitness to practice law in Wisconsin. In the alternative, he says that this court should consider the delay in his certification from the time of his May 2004 graduation from law school to the present as a sufficient probationary period and should still certify his application.

¶ 19. This court applies a two-pronged standard of review when reviewing an adverse determination by the Board. First, we will adopt the Board's findings of fact if they are not clearly erroneous. Vanderperren, 261 Wis. 2d 150, ¶ 20. Second, we then determine whether the Board's conclusions of law based on the non-erroneous facts, are proper. Although this court appreciates the Board's expertise in administering the bar admission rules, the court is obliged to make that legal determination de novo. Id.

¶ 20. A candidate for admission to the bar in Wisconsin bears the burden of proof to establish that he or she meets the qualifications for admission set forth in SCR 40.02; these qualifications include meeting the character and fitness requirements identified in SCR 40.06. See SCR 40.02(3). In addition, SCR 40.07 provides that "[t]he burden of proof shall be on the applicant to establish qualifications under SCR 40.02. . . ." Pursuant to SCR 40.06(3), the applicant must establish character and fitness to the satisfaction of the Board whose duty it is then to certify to the supreme court character and fitness of qualifying applicants. Vanderperren, 261 Wis. 2d 150, ¶ 21.

¶ 21. After a careful review of the record, we do not deem any of the Board's findings of fact to be clearly erroneous. However, in our opinion, the findings of fact do not support the Board's ultimate conclusion to deny Mr. Anderson admission to the Wisconsin bar.

¶ 22. As noted in Mr. Anderson's brief, the Board appears to focus on four points in denying his application for bar admission: (1) his job performance as an officer with the Monona Police Department in 1999, before he went to law school; (2) his off-duty conduct one night in 1999 which the Board suggests illustrates his propensity to misuse his position of authority, a poor attitude towards women, and a willingness to violate the law; (3) his "history of job problems" which led to his "discharges from employment;" and (4) his allegedly "disingenuous, evasive and non-credible responses to the Board," presumably related to inquiries wherein he continued to dispute the allegations relating to the criminal charges for which he was fully acquitted.

¶ 23. With respect to his job performance on the Monona police force in 1999, Mr. Anderson acknowledges that after three years of satisfactory service as a police officer his performance slipped in his final year on the force and he was reprimanded, after which he resigned. He says while he regrets the poor job performance that resulted in the reprimand, that incident should be taken in context, since he did perform well during his first three years as a Monona police officer.

¶ 24. While the record supports the Board's findings that Mr. Anderson's conduct as a police officer during his final months on the job was, in at least some respects, substandard, we do not find the sub-par job performance of sufficient gravity to bar Mr. Anderson from being admitted to the practice of law in this state. While, in hindsight, Mr. Anderson probably should have resigned from the Monona Police Department and pursued other employment sooner than he did; ultimately, he did heed the evaluator's suggestion that he might find a career other than law enforcement more satisfying.

¶ 25. With respect to Mr. Anderson's "history of job problems" which led to "discharges from employment," Mr. Anderson admits that he was terminated from two jobs, the Country Kitchen and Kwik Trip, in Richland Center in 1989, before he began his undergraduate studies at UW-Platteville and before he entered military service and nearly 15 years before his application for bar admission. We find these long ago incidents of little or no relevance in weighing whether Mr. Anderson currently has the character and fitness to practice law in Wisconsin. While Mr. Anderson admits that he resigned from the Monona Police Department in lieu of being terminated, we again do not find this sufficient cause to forever bar him from the practice of law in this state.

¶ 26. Mr. Anderson's off-duty conduct which led to the criminal charges being filed against him in 1999 is, without a doubt, the most troubling part of this record. Even though he was acquitted of the criminal charges and was not charged with providing alcohol to a minor, a 31-year-old man, and particularly a police officer, should have conducted himself in a more becoming and mature manner than Mr. Anderson did at the Monona bar and the party that followed. While Mr. Anderson attempts to excuse his conduct by saying that he was experiencing marital problems at the time and that he had lost interest in his job, neither of these factors excuses the extremely immature and troubling behavior. Nevertheless, it is important to look at Mr. Anderson's conduct and record since 1999. We find Mr. Anderson's post-1999 conduct supports the conclusion that he does have the character and fitness to be admitted to the Wisconsin bar.

¶ 27. Since leaving the Monona Police Department Mr. Anderson has had a largely unblemished record of good behavior. He paid his own way through law school and graduated in the top ten of his law school class. In support of his application for bar admission Mr. Anderson submitted multiple affidavits from people who knew or worked with him in law school, and all were uniformly positive. Mr. Anderson admits that in 1999 he exercised poor judgment and engaged in conduct of which he is not proud. He says he is human and made some mistakes but since that time he has rededicated his life. Although we, like the Board, are very troubled by the 1999 incidents, we do not believe those incidents should preclude Mr. Anderson's admission to the bar of this state on character and fitness grounds.

¶ 28. The Board found Mr. Anderson's testimony at the evidentiary hearing was disingenuous, evasive, and incredible. The Board argues the fact that a jury acquitted Mr. Anderson of all criminal charges arising from the 1999 incident does not necessarily mean the jury believed his version of events and the acquittal simply meant that the jury had a reasonable doubt about some element of the offenses with which Mr. Anderson was charged. Several board members observed, following the hearing, that although Mr. Anderson said he was sorry for his bad behavior, he then turned right around and said he did not do anything wrong for which he had any reason to be sorry.

¶ 29. In support of its conclusion that Mr. Anderson was untruthful, the Board points to his responses to questions posed by the Board about an incident that occurred in a Topeka tavern on St. Patrick's Day 2004, when Mr. Anderson was in his last semester of law school. Mr. Anderson and a female law school friend went to a tavern. After observing police officers, Mr. Anderson admits making a boorish and inappropriate remark which he says was a quote "from a movie." Mr. Anderson claims he made the comment in a low voice that he intended only his female friend to hear. One or more police officers heard the remark and, after an apparently heated discussion with Mr. Anderson, issued a ticket for interference with a police officer. The ticket was subsequently dismissed, either because it was lost or because the issuing officer chose to withdraw it.

¶ 30. Although the Board's decision denying Mr. Anderson's application for bar admission does not refer to the Topeka incident, the Board discussed the incident at some length in its brief and also at oral argument. The Board says instead of recognizing that he made an apparently inflammatory remark which would naturally anger a police officer, Mr. Anderson continues to blame the officers who overheard the remark for getting upset because they did not personally like his comment. The Board accuses Mr. Anderson of "flip-flopping" in his answers to questions about the Topeka incident. It says this flip-flopping is consistent with personality traits discussed in Mr. Anderson's fitness assessment while on the Monona police force in which the evaluator noted that Mr. Anderson had a tendency to answer questions in a "socially desirable fashion rather than being entirely honest" and that he tended to minimize his problems and blame others rather than accepting responsibility for his own shortcomings. The Board points out that lawyers are often criticized by opposing counsel for things they say. The Board asserts both Mr. Anderson's underlying conduct when he was justifiably criticized for his demeaning remark in the Topeka tavern and his continuing efforts to justify actions that unnecessarily escalated the confrontation he created fail to inspire confidence in his ability to appropriately deal with the ordinary pressures of practicing law.

¶ 31. We find the Topeka incident very troubling, both because it is another example of immature behavior and because it mars Mr. Anderson's otherwise seemingly exemplary record since leaving the Monona police force. However, we note that Mr. Anderson did disclose the incident, and we also note that his female companion submitted an affidavit in which she completely corroborated his version of events. Under the circumstances we cannot find that the Topeka incident should preclude Mr. Anderson's admission to the bar on character and fitness grounds.

¶ 32. We appreciate the time-consuming and difficult job the Board performs in conducting character and fitness investigations pursuant to SCR 40.06. We conclude, however, after our own mandated de novo review, that the incidents from Mr. Anderson's past cited by the Board to support its fact-driven determination that he lacks the character and fitness to be admitted to the bar of this state, are not of sufficient gravity for us to adopt that conclusion. In closing, we find Justice Prosser's concurrence in Vanderperren to apply with equal force here:

With respect to her character and fitness, the incidents described are serious but they are mostly youthful excesses and mistakes, and cannot block her admission forever. All in all, I believe the applicant deserves the benefit of the doubt. She should have the opportunity to begin the practice of law with a clean slate — with an understanding of the importance that courts attach to character and ethics and a warning that this court has a long memory.

Vanderperren, 261 Wis. 2d 150, ¶ 65 (Prosser, J., concurring).

¶ 33. IT IS ORDERED that the decision of the Board of Bar Examiners declining to certify that Dominic J. Anderson has satisfied the requirements for admission to the practice of law in Wisconsin is reversed and the matter is remanded to the Board for further action consistent with this opinion.

       SCR 40.08(5) provides that "[a] petition to the supreme court for review of an adverse determination of the board under this rule shall be filed with the clerk within 30 days of the date on which written notice thereof was mailed to the applicant."

       SCR 40.06(1) provides: Requirement as to character and fitness to practice law.
      (1) An applicant for bar admission shall establish good moral character and fitness to practice law. The purpose of this requirement is to limit admission to those applicants found to have the qualities of character and fitness needed to assure to a reasonable degree of certainty the integrity and the competence of services performed for clients and the maintenance of high standards in the administration of justice.

       SCR 40.06(3) provides: Requirement as to character and fitness to practice law.
      (3) An applicant shall establish to the satisfaction of the board that the applicant satisfies the requirement set forth in sub. (1). The board shall certify to the supreme court the character and fitness of qualifying applicants. The board shall decline to certify the character and fitness of an applicant who knowingly makes a materially false statement of material fact or who fails to disclose a fact necessary to correct a misapprehension known by the applicant to have arisen in connection with his or her application.

       BA 6.02 states rule requirements as to character and fitness to practice law:

        Relevant Conduct. The revelation or discovery of any of the following should he treated as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law:
      (a) unlawful conduct
      (b) academic misconduct
      (c) false statements by the applicant, including concealment or nondisclosure
      (d) acts involving dishonesty or misrepresentation
      (e) abuse of legal process
      (f) neglect of financial responsibilities
      (g) neglect of professional obligations
      (h) violation of an order of a court
      (i) evidence of mental or emotional impairments
      (j) evidence of drug or alcohol dependency
      (k) denial of admission to the bar in another jurisdiction on character and fitness grounds
      (l) disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction


source: Caselaw Access Project

author: NETTESHEIM, J.

license: Public Domain

text:
    In re the Marriage of: Heidi Frisch f/k/a Heidi Henrichs, Petitioner-Respondent, v. Ronald J. Henrichs, Respondent-Appellant.
    Court of Appeals

      No. 2005AP534.

      Oral argument January 10, 2006.

      Decided March 1, 2006.

    2006 WI App 64
    (Also reported in 713 N.W.2d 139.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Richard J. Podell and Barbara J. Stippich of Richard J. Podell & Associates, S.C. of Milwaukee. There was oral argument by Richard J. Podell.

    On behalf of the petitioner-respondent, the cause was submitted on the brief of Thomas L. Frenn and Kelly M. Dodd oí Petrie & Stocking, S.C. of Milwaukee. There was oral argument by Kelly M. Dodd.

    Before Snyder, PJ., Nettesheim and Anderson, JJ.

       Petition to review granted 6-14-06.

   NETTESHEIM, J.

¶ 1. Ronald J. Henrichs and Heidi Frisch, f/k/a/ Heidi Henrichs, divorced in 1993 after a ten-year marriage. The ensuing litigation — a bitter tangle of alleged fraud, misrepresentation, unfairness, contempt, public policy arguments, overtrial and garden-variety buyer's remorse — has worn on longer than the marriage that spawned it. In its painstaking attempt to undo this Gordian knot, the circuit court mistook remedial contempt for Alexander's sword. We commend the court for its efforts, but conclude nonetheless that its remedy cannot be sustained.

¶ 2. Ronald's appeal is from a postdivorce judgment finding him in contempt of court for fraudulently failing to timely provide copies of his income tax returns to Heidi as required by a 1996 stipulation and a prior order of the family court. Although Ronald had belatedly supplied the returns, the family court nonetheless found him in contempt and ordered him to pay $100,000 as a sanction because the returns showed a level of income greater than that previously represented by Ronald. Despite the tortuous path of this case, this appeal turns on one narrow, but important, issue: whether the family court's use of remedial contempt was proper. We hold it was not because the facts and the procedure of this case lack the necessary hallmarks of remedial contempt. We therefore reverse the contempt judgment.

¶ 3. Besides imposing a remedial contempt sanction against Ronald, the family court also determined that Ronald had engaged in overtrial and imposed a $32,000 sanction for such conduct. But, because this sanction was premised on the court's prior contempt finding, we are compelled to also reverse this overtrial award. In addition, the family court ordered Heidi to pay support to Ronald based upon a change in placement to Ronald of the parties' minor son. The parties dispute whether the court suspended this payment until Ronald had paid the contempt and overtrial sanctions to Heidi, but because we reverse the judgment, this issue is moot. We remand only for the court to determine the appropriate commencement date for Heidi's support payments.

BACKGROUND

¶ 4. Although we review the judgment entered by Judge Ralph M. Ramirez on this appeal, the relevant trial court proceedings originated before Judge James Kieffer. In 1993, Judge Kieffer entered a judgment of divorce incorporating the parties' marital settlement agreement requiring Ronald to pay $600 per month in child support for the parties' two minor children. A provision of the agreement referenced Wxs. Stat. § 767.263 (1993-94), which required payers of child support to report all substantial changes in income to the clerk of court.

¶ 5. In the ensuing months, Heidi disputed the accuracy of Ronald's stated income. In January 1995, Heidi moved for: (1) an increase in child support pursuant to Wis. Stat. § 767.32, (2) a finding of contempt for Ronald's alleged failure to provide copies of his income tax returns, and (3) an award of costs and attorney fees. The filing of several additional motions ensued. Heidi's contempt motion subsequently was dismissed, and a hearing on her motion for increased child support was held in November 1995. At this hearing, Judge Kieffer found that Ronald had fraudulently misrepresented his income. As a result, the judge set a revised child support award retroactive to February 1, 1995, and also ordered Ronald to annually provide Heidi with copies of his personal and corporate tax returns for as long as he had child support obligations. In addition, the judge found that Ronald had engaged in overtrial, and ordered him to pay $5000 in attorney fees.

¶ 6. On October 29, 1996, the parties entered into a stipulation modifying child support and imposing a four-year moratorium, ending on January 1, 2001, during which time both parties agreed they would not move to modify child support based on economic circumstances, specifically income fluctuations. The stipulation further recited Ronald's existing obligation to submit copies of his tax returns to Heidi. At the hearing on the proposed stipulation, Heidi's attorney noted for the record that each of the parties had been assisted by a certified public accountant "so, there has been tax input and a lot of looking at this business by both sides." Under questioning by Judge Kieffer, both parties represented that they had discussed the stipulation with their respective attorneys, understood the provisions, had no questions, and believed the stipulation to be in their children's best interests. In addition, Judge Kieffer advised the parties that Wisconsin public policy frowns upon agreements that bar parents from seeking child support modifications and that the judge could not independently order what the parties were seeking to do on their own. The parties acknowledged this advice, and Judge Kieffer then approved the stipulation.

¶ 7. Except for a February 1999 stipulation modifying child support as a result of a change in dependent health and dental insurance, the parties remained out of court as agreed. Then in June 2002, after the moratorium had expired, Ronald sought to obtain primary placement of the parties' daughter and a concomitant reduction in child support. The family court commissioner granted this motion at a hearing on July 2, 2002.

¶ 8. In August 2002, Heidi filed a pro se contempt motion against Ronald for his failure to provide copies of his tax returns from 1996 through 2001 and for dishonest reporting of his gross income. By this time, the case had been assigned to Judge Ramirez, who presided over all of the subsequent proceedings. At a September 24, 2002 hearing on the motion, Heidi also orally requested an increase in child support. Judge Ramirez dismissed Heidi's contempt motion because Ronald had already, albeit belatedly, provided copies of the tax returns. In addition, Judge Ramirez directed Heidi to file a written motion relating to her request for increased support. The judge set a hearing date of January 8, 2003.

¶ 9. Before the hearing, Heidi abandoned her pro se status and retained current counsel, who immediately filed an "amended" motion seeking, among other things: (1) Wis. Stat. § 806.07 relief from the court commissioner's July 2002 order reducing Ronald's child support obligation, (2) increased child support retroactive to that time, and (3) an award of attorney fees and expenses based on a claim that Ronald's motion for child support and his defense of Heidi's motions were frivolous. In support, the motion alleged that Ronald had provided incomplete tax returns and had fraudulently misrepresented his actual income.

¶ 10. In the interim, activity continued apace. The parties filed requests for depositions and written discovery, followed by various motions to avoid, limit and compel such discovery, and a motion for a protective order. An emergency court order in November 2002 transferred temporary placement of the parties' minor son to Ronald.

¶ 11. At the January 8, 2003 hearing, Judge Ramirez confirmed the emergency order and formally transferred primary placement of the minor son to Ronald. Since the primary placement of both children now rested with Ronald, the judge ordered that child support from Ronald to Heidi immediately cease. Heidi then orally requested an increase in child support retroactive to 1996. The judge stated that this request would be taken up at a later date.

¶ 12. On May 20, 2003, Judge Ramirez addressed Heidi's request for Wis. Stat. § 806.07 relief and her contempt motion. However, the issues were not resolved at this hearing and the matter was again continued. In the interim, Ronald moved to dismiss Heidi's effort to retroactively modify child support and to limit the time frame of the evidence relating to his income. Two months later, Heidi filed a contempt motion against Ronald for his failure to provide notice that his income had substantially increased and failure to provide copies of his tax returns. Heidi also sought modification of support for the period of the moratorium.

¶ 13. Judge Ramirez next addressed the pending matters at a hearing on October 22, 2003. The judge denied Ronald's motion to limit the scope of the evidence as to his income, deferred action on Heidi's motion to retroactively modify child support, and set a hearing on the pending support and contempt issues for November 6, 2003. However, at the November 6 hearing, the judge held these issues in abeyance, and, instead, addressed the question of whether the court should uphold the 1996 agreement between the parties. In answer, the judge found that the parties had entered into the agreement freely and voluntarily, and that the purpose of the 1996 agreement was not to limit child support, but to curb the pattern of contentious legal proceedings between the parties. The judge then asked the parties to submit letter briefs addressing whether the agreement violated public policy, and the matter was continued to November 25, 2003.

¶ 14. At the adjourned hearing, Judge Ramirez found no fraud or intentional misrepresentation in the making of the 1996 stipulation. However, he did find that Ronald subsequently had engaged in a "substantial amount" of misrepresentation, fraud and game-playing as to what constitutes "income." Nonetheless, the judge concluded that since the parties had been fully advised and well informed about the agreement and that it represented their intentions and wishes, the court would not overturn it. However, the judge added, there "needs to be an offset, but I don't know what that's going to be."

¶ 15. Judge Ramirez next took up the matter on April 7, 2004. At this hearing, the judge reversed his earlier ruling upholding the stipulation. The judge again observed that the 1996 agreement was made freely and voluntarily but that, upon reconsideration, it was not fair and equitable in light of later-revealed circumstances, resulting in a denial to the children of support to which they were entitled. Declaring the agreement to be against public policy, the judge "overturned] [him] self' on the grounds that the earlier decision had not "considered appropriately the perspective of the children." The judge then asked the parties to brief the issue of "what they think I can or should do in regards to that ruling" and adjourned the matter once more until June 15, 2004.

¶ 16. Despite asserting at various turns that she had not brought her motions under Wis. Stat. § 767.32, Heidi argued at the June 15 hearing that § 767.32(lm), (providing that the court "may not" revise the amount of child support), is phrased permissively, allowing the court discretion to retroactively modify support. Heidi also argued that under Wis. Stat. § 767.27(2m), Ronald's failure to disclose his assets set the stage for a Wis. Stat. ch. 785 contempt proceeding, such that it was within the court's inherent authority and broad discretion to fashion a monetary sanction in an amount tied to what Heidi claimed Ronald owed for child support. Judge Ramirez agreed, finding that, had child support been based on the amount "due and owing" to the children, Ronald would have paid approximately $221,000 more in support since 1996. The judge then found Ronald in contempt for intentionally failing to timely disclose accurate income figures, and ordered a $100,000 sanction against Ronald to compensate Heidi for the losses she suffered as a consequence of the contempt.

¶ 17. At this same hearing, Judge Ramirez also ordered Heidi to pay child support to Ronald in the amount of 17% of her income pursuant to the child support guidelines. However, the judge deferred these payments until the court had addressed Heidi's over-trial claim.

¶ 18. Finally, Judge Ramirez conducted a hearing on November 12, 2004, on Heidi's claim of overtrial by Ronald. The judge determined that $32,000 of Heidi's attorney fees and expenses was reasonably attributable to Ronald's overtrial of the matter, and the judge ordered Ronald to pay this additional amount to Heidi. The final judgment recited that Heidi's support obligation was suspended until Ronald had paid the contempt and overtrial sanctions to Heidi.

¶ 19. Ronald appeals.

DISCUSSION

¶ 20. Among his issues, Ronald challenges Judge Ramirez's use of contempt. On a related basis, Ronald argues that, however styled, the $100,000 contempt sanction was but an illegal retroactive modification of child support in disguise. He argues that Wis. Stat. § 767.32(lm) plainly limits retroactive support modification to the date of the service of the motion, and that Wis. Stat. § 806.07 likewise offers no authority to deviate from that retroactivity limitation. In addition, Ronald argues that § 806.07 offers no avenue to reopen the stipulation four years after its expiration. Heidi chafes at Ronald's insistence on labeling the sanction a retroactive support modification. She contends it was well within the court's discretion and authority under Wis. Stat. § 785.04(1)(a) to "translate Ronald's unreported income into a payment of money as a sanction for contempt."

¶ 21. Various legal theories were argued throughout these proceedings and are repeated on appeal. But Judge Ramirez ultimately ruled on the basis of the contempt issue and that is the principal issue that we address on appeal. Therefore, we do not address Ronald's contention that the doctrines of equitable estoppel, issue preclusion and claim preclusion prohibit Heidi from litigating or relitigating her claims that Ronald fraudulently represented his income, nor Heidi's rejoinder that those claims lack merit because the matter was resolved by the parties' stipulation, not an adjudication. We also need not address this case in light of Wis. Stat. § 767.32(lm), which Heidi now agrees does not apply. Since the circuit court ultimately based its decision and fashioned its remedy in the context of contempt, we limit our review to the propriety of that procedure.

A. Standard of Review

¶ 22. We first consider the applicable standard of review. Citing Haeuser v. Haeuser, 200 Wis. 2d 750, 767, 548 N.W.2d 535 (Ct. App. 1996), abrogated on other grounds, Kruckenberg v. Harvey, 2005 WI 43, ¶¶ 60-62, 279 Wis. 2d 520, 694 N.W.2d 879, Ronald asserts, and Heidi tacitly agrees, that we review a circuit court's use of its contempt power as an exercise of judicial discretion. However, the cases describing a court's use of its contempt power in terms of a proper exercise of discretion do not precisely describe the question before us. Those cases generally involve whether the finding of contempt was proper. Here, the question is whether contempt was statutorily authorized in the first instance — in other words, whether the law permitted the use of contempt under the facts and circumstances of the case. That is a question of law because the procedures and penalties are prescribed by statute. Evans v. Luebke, 2003 WI App 207, ¶¶ 16-17, 267 Wis. 2d 596, 671 N.W.2d 304. We review questions of law de novo. Id., ¶ 16.

B. Contempt

¶ 23. We move, then, to Judge Ramirez's use of contempt and the imposition of the sanction. Judge Ramirez found Ronald in contempt for fraudulently failing to timely provide copies of his tax returns to Heidi. And since these returns, once produced, revealed greater income to Ronald than previously represented, the judge reasoned that the children would have been entitled to greater child support than that prescribed by the parties' stipulation.

¶ 24. Our decision would take one of two distinct paths, depending upon whether the fraud infused the formulation of the 1996 stipulation, or arose after it. A close examination of the record of the 1996 proceedings before Judge Edeffer satisfies us that there was no "fraud in the inducement" of the stipulation. The parties were ably represented by skilled matrimonial lawyers and advised by certified public accountants. Judge Edeffer carefully ascertained that both parties understood all terms of the agreement and that the terms reflected their intentions, even to the extent of advising that the court would be powerless to enter such an order absent the parties' request that the court do so. There was no showing, and Heidi does not contend, that she or her attorney and tax consultant were not privy to all of Ronald's relevant financial information at the time of the stipulation. Moreover, Heidi never seriously has argued that she was defrauded into making the stipulation.

¶ 25. In addition, we do not read Judge Ramirez to have determined otherwise when the judge overruled his prior holding honoring the stipulation. Instead, as noted earlier, we conclude that Judge Ramirez's contempt finding was premised upon Ronald's later conduct of delinquently, and evidently dishonestly, reporting his income. The judge saw a need to remedy that situation on public policy grounds and turned to contempt as the remedy. Accordingly, we must examine whether those facts permitted the judge to employ contempt as a remedy for the wrong, and, further, whether the procedure employed complied with the law of contempt.

¶ 26. Contempt of court is disobedience to the very authority, process or order of a court, and includes acts such as the refusal to produce a record or document. Wis. Stat. § 785.01(l)(b), (d). Contempt can be punished in two ways. A punitive, or criminal, sanction punishes a past contempt of court for the purpose of upholding the authority of the court. Sec. 785.01(2); see Diane K.J. v. James L.J., 196 Wis. 2d 964, 968-69, 539 N.W.2d 703 (Ct. App. 1995). A punitive sanction also requires that a district attorney, attorney general or special prosecutor formally prosecute the matter by filing a complaint and following procedures set out in the criminal code. Wis. Stat. § 785.03(12)(b). It is imposed less to address the private interests of a litigant than to discipline a party for contumacious conduct. Diane K.J., 196 Wis. 2d at 969.

¶ 27. A remedial, or civil, sanction, by contrast, is imposed to ensure compliance with court orders for the purpose of terminating a continuing contempt of court. Wis. Stat. § 785.01(3); Diane K.J., 196 Wis. 2d at 968. It comes about not at the behest of a prosecutor, but upon motion of the party aggrieved by the noncompliance. See Wis. Stat. § 785.03(l)(a). In addition, a remedial contempt sanction must be purgeable through compliance with the original court order. Diane K.J., 196 Wis. 2d at 969.

¶ 28. It is obvious that the procedure in this case did not utilize criminal contempt, and neither the parties nor Judge Ramirez contended otherwise. Nonetheless, in the interests of completeness, we explain why. All violations of court orders and exhibitions of dishonesty can be said to be a "nose thumbing" at the court's authority. But not all such acts can reasonably be viewed as falling within the ambit of criminal contempt, or remedial contempt would be a hollow concept. Ronald's failure to timely provide Heidi with copies of his tax returns, while objectionable under the terms of the stipulation, did not assail the essential authority of the court. Moreover, a punitive sanction is limited to a jail sentence or fine, or both, Wis. Stat. § 785.04(2)(a), and does not allow for the compensatory sanction styled here. We find no provision in the statutes or case law for some hybrid of the two types of sanctions. The remedies authorized by statute are the exclusive remedies available. State ex rel. N.A. v. G.S., 156 Wis. 2d 338, 341, 456 N.W.2d 867 (Ct. App. 1990). Punitive sanctions may not be imposed in remedial sanction proceedings. Id.

¶ 29. Judge Ramirez himself termed the sanction in this case a remedial sanction, and, in language reflective of the remedial sanction statute, the judge said the sanction was to compensate Heidi and the children for the loss incurred as a result of Ronald's contempt. See Wis. Stat. § 785.04(l)(a) (a remedial sanction includes "[pjayment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court"). Both parties agree with Judge Ramirez, as do we, that the contempt sought in this case was remedial contempt.

¶ 30. However, we disagree that remedial contempt was properly employed in this case. As noted, a remedial sanction is imposed to ensure compliance with court orders for the purpose of terminating a continuing contempt of court. Wis. Stat. § 785.01(3); Diane K.J., 196 Wis. 2d at 968. Here, Ronald's contempt was his failure to furnish accurate income information by way of timely produced copies of tax returns. But the undisputed fact is that the returns were produced, albeit belatedly, prior to any pronouncement of contempt. Thus, any prior contempt was no longer ongoing. This is so whether we gauge Ronald's obligation to provide copies of his tax returns under the stipulation or under Judge Kieffer's earlier order to the same effect. Moreover, this contempt (or any other behavior by Ronald that might be so labeled), lacked one indispensable feature of remedial contempt: that it be purge-able. Diane K.J., 196 Wis. 2d at 968-69.

¶ 31. An additional problem exists assuming that Ronald's contempt is assessed under the terms of the stipulation. Wisconsin Stat. § 785.04(1)(a) allows, as a remedial sanction, the payment of a sum of money for "a loss or injury suffered by the party as the result of a contempt of court." (Emphasis added.) Here, the contempt of court was Ronald not furnishing copies of the required tax returns. The question then is whether that contempt resulted in a loss to Heidi. The $100,000 sanction for "underassessed" child support was based upon Judge Ramirez's finding that Ronald's fraud was his withholding tax returns during the term of the stipulation, so as not to divulge his true financial status. But under the terms of the parties' agreement, Heidi was barred anyway from seeking a change in support based upon any additional income. Accordingly, there can have been no loss or injury to her "as the result of a contempt" which could have been addressed under Wis. Stat. ch. 785.

¶ 32. Heidi argues that Griffin v. Reeve, 141 Wis. 2d 699, 416 N.W.2d 612 (1987), supports her position that remedial contempt is an appropriate means by which to enforce a child support obligation. That generally may be so, but Griffin specifically involved the question of using the contempt statute to enforce arrearage beyond the age of majority. Id. at 706. Here, the contempt is not failure to pay support, but failure to provide copies of the tax returns, and that failure was remedied well before contempt was invoked and the sanction imposed.

¶ 33. Like Judge Kieffer before him, Judge Ramirez was troubled by Ronald's cavalier attitude toward both the court and the truth. We share that concern. Judge Ramirez observed that "any information from Mr. Henrichs is suspect.... If Mr. Henrichs told me it was daylight and sunny out, I'd have to check my watch and I'd have to look out the window." But scofflaw or not, it remains that Ronald had supplied copies of his tax returns to Heidi in advance of the contempt hearing, the contempt finding and the contempt sanction. In short, any prior contempt was no longer ongoing as required by the law of remedial contempt.

C. Wisconsin Stat. § 806.07

¶ 34. The parties also debate whether Heidi was entitled to relief under Wis. Stat. § 806.07. As noted, Ronald characterizes the circuit court's contempt order and sanction as an improper retroactive support modification contrary to Wis. Stat. § 767.32(lm) and that § 806.07 offers no relief from that retroactivity limitation. Ronald also argues that § 806.07 offers no relief from a stipulation agreed to four years earlier. However, Heidi herself argued at the June 2004 hearing that the court could sidestep a § 806.07 analysis in favor of a contempt sanction. And, most importantly, Judge Ramirez ultimately granted relief under the law of contempt, not § 806.07.

¶ 35. Therefore, we decline to venture into the area of Wis. Stat. § 806.07 in a case where the parties did not fully litigate the issue and the family court did not rule on the question. Moreover, we are reluctant to closely scrutinize the application of a statute that Judge Ramirez only generally considered, and which, on appeal, Ronald argues does not apply and Heidi does not even address. In particular, Judge Ramirez appears not to have addressed at all the interplay between § 806.07(1)(h), the "catchall" subsection and the retro-activity question raised by Ronald.

D. Overtrial

¶ 36. Judge Ramirez also ordered Ronald to pay $32,000 of Heidi's attorney fees on the grounds that he had engaged in "overtrial." Overtrial is a family law doctrine that may be invoked when one party's unreasonable approach to litigation delays resolution of the matter and causes the other party to incur unnecessary fees. Zhang v. Yu, 2001 WI App 267, ¶ 13, 248 Wis. 2d 913, 637 N.W.2d 754.

¶ 37. However, Judge Ramirez's overtrial award to Heidi was premised on the judge's contempt finding against Ronald. With the contempt judgment reversed, we also must reverse the overtrial portion of the judgment.

E. Written Findings and Judgment

¶ 38. At the conclusion of the final hearing, Judge Ramirez directed Heidi's counsel to prepare proposed written findings of fact, conclusions of law and the judgment. Counsel did so, and the judge signed the document in its entirety over Ronald's challenge that Heidi had inserted provisions not actually determined by the judge.

¶ 39. Our reversal of the contempt and overtrial provisions of the judgment renders this issue moot. Findings of fact and conclusions of law, whether correct or incorrect, cannot stand alone. Rather, they must be anchored by an accompanying order or judgment. It logically follows that when a judgment or order is reversed, the underlying findings of fact and conclusions of law in support thereof are no longer of any legal effect or consequence. See People v. Cooper, 780 N.E.2d 304, 314 (Ill. 2002) (Harrison, C.J., dissenting) ("Once the appellate court reversed the circuit court's judgment granting the State's petition, the circuit court's judgment therefore ceased to have any effect. No further action by [the defendant] was required. By operation of law, the finding that she was unfit was rendered a nullity. She regained her parental rights as if they had never been lost." (Emphasis added.)). See also City of Columbus v. Town of Fountain Prairie, 134 Wis. 593, 603, 115 N.W. 111 (1908) ("That part of the order imposing costs on the defendant falls with the reversal of the order overruling the demurrer ....").

F. Heidi's Child Support Obligation

¶ 40. Ronald contends that Judge Ramirez erred in the exercise of his discretion by declining to order Heidi to pay child support as of January 8, 2003, the date that placement of the parties' minor son was formally transferred to Ronald. Instead, the judge ruled that Heidi's support obligation commenced on November 1, 2004, the date that the judge entered the support order. In addition, the judgment ordered that Heidi's support obligation be suspended until Ronald had paid the contempt and overtrial sanctions.

¶ 41. A child support order is within the circuit court's sound discretion, and our review is limited to whether the court properly exercised its discretion. Weiler v. Boerner, 2005 WI App 64, ¶ 19, 280 Wis. 2d 519, 695 N.W.2d 833. Here, as with the overtrial issue, the order suspending Heidi's support obligation was premised on Ronald complying with the contempt sanction and paying the overtrial award. Since we have reversed the contempt and overtrial sanctions, it follows that we also must reverse the suspension of Heidi's child support payments.

¶ 42. That leaves only the question of when Heidi's support obligation should commence. Although Judge Ramirez fixed November 15, 2004, as the commencement date, rejecting Ronald's requested date of January 8, 2003, which was the date custody of the remaining child was formally granted to him, we are uncertain whether the judge's ruling on this matter was influenced by the judge's prior entry of the contempt and overtrial sanctions. Given our reversal of both sanctions, we think it more prudent that we remand this narrow issue to the family court for further consideration in light of our rulings.

CONCLUSION

¶ 43. We reverse the judgment in total, save the amount of Heidi's support obligation. We remand for the family court to consider the commencement date of Heidi's support obligation.

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

       The current statute requires notification to the county child support agency. All other references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       At this time, Heidi was represented by Attorney Bruce M. Peckerman.

       We assume that Judge Ramirez was referring to Heidi's earlier motion alleging that Ronald's motion to modify child support and his defense of Heidi's motion were frivolous. If we are incorrect, we observe that the appellate record does not reveal a formal written motion from Heidi seeking overtrial sanctions against Ronald. However, Heidi did ask for compensation for her attorney fees in one of her letter briefs filed with the family court.

       We observe, however, that a prior adjudication is the giving of a judgment. Great Lakes Trucking Co. v. Black, 165 Wis. 2d 162, 168, 477 N.W.2d 65 (Ct. App. 1991). A stipulation approved by the court is a final determination of the parties' rights under that action and even may act as a final judgment. Id. at 168-69.

       In her November 25, 2003 letter brief to the circuit court, Heidi did assert that her reassessment of the 1996 stipulation came about because her consent "was not the product of a conscientious, deliberate, and well-informed choice." Our extensive review of the record reveals that this argument was not pursued, however. While both Judge Kieffer and Judge Ramirez expressed qualms about Ronald's veracity, both judges nonetheless found that Heidi entered into the stipulation freely, knowingly and voluntarily. We agree.

       Although not necessary to our decision that Judge Ramirez improperly utilized remedial contempt in this case, we also disagree with the judge's ruling that the stipulation violated public policy. In Honore v. Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989), a stipulation executed in 1986 required the payer to maintain a stated level of support "notwithstanding a reduction in his income .. . until the youngest child ... is in first grade, or until September 1,1989." Id. at 514. The payer then sought a reduction of the child support based on a reduction in his income. Id. The family court granted the reduction, concluding that the stipulation was contrary to public policy. Id. The court of appeals reversed, concluding, first, that the stipulation was not contrary to public policy, see id. at 513, and then that the payer was estopped from reneging on the stipulation where the agreement was freely and knowingly made, the overall settlement was fair and equitable, and not illegal or against public policy. Id. at 517.
      In a later case, Krieman v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct. App. 1997), a stipulation permanently set a level of unmodifiable child support. Id. at 166-67. The payer later lost his job, fell behind in his support payments, and was found in contempt. Id. at 167-68. The court of appeals reversed, concluding that the stipulation violated public policy. Id. at 178. However, the court noted that its holding did no violence to Honoré because the time period of the stipulation in Krieman was permanent, whereas the Honoré stipulation "included a point in time at which the stipulated payment could be reviewed and adjusted based on a change of circumstances." Krieman, 214 Wis. 2d at 175.
      Unlike Krieman, the stipulation in this case was not permanent. To the contrary, it was limited to four years, a time frame very near to that in Honoré. Moreover, as required by Honoré, there is no showing that: (1) the stipulation was not freely and knowingly made by Heidi, (2) the stipulation was not fair and equitable to Heidi or the children, and (3) the stipulation was illegal or against public policy. Thus, this is an Honoré case, not a Krieman case.

        Finally, we observe that Judge Kieffer was correct when he advised the parties that the court could not, on its own, impose the moratorium on child support modification. Wisconsin Stat. § 767.25(lm) authorizes a trial court to modify child support payments. Thus, the moratorium required the agreement and consent of the parties. See Bliwas v. Bliwas, 47 Wis. 2d 635, 639-40, 178 N.W.2d 35 (1970) (where the court upheld a stipulation requiring a parent to contribute to the education expenses of child beyond the age of majority).

       If purge conditions had been imposed, we assume they would have included the most likely — production of the tax returns — something Ronald had already done.

       We take note that even though Ronald's belatedly produced tax returns showed income levels greater than Heidi expected, she made no claim that the children were not adequately supported by the support payments mandated by the stipulation.

       However, if Ronald's contempt is assessed under Judge Kieffer's prior order directing that Ronald provide his tax returns, then Heidi has established causation since that order did not bar the parties from seeking modification of Ronald's support modification. But, as noted earlier, Ronald's contempt under either scenario was not a "continuing" contempt.

       Ronald contends that Judge Ramirez never made an express determination suspending Heidi's support, and that Heidi improperly included this provision in the judgment. As we have already held, this is a moot point because we have reversed the judgment. See supra, ¶¶ 37, 39.


author: ANDERSON, J.

text:
    Faye Meyer, on her own behalf and on behalf of all others similarly situated in the State of Wisconsin, Plaintiff-Appellant, v. The Laser Vision Institute, LLC, d/b/a The Lasik Vision Institute, a Florida Corporation, Defendant-Respondent.
    Court of Appeals

      No. 2005AP1233.

      Submitted on briefs January 6, 2006.

      Decided March 1, 2006.

    2006 WI App 70
    (Also reported in 714 N.W.2d 223.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mark A. Peterson and M. Susan Maloney of McNally, Maloney & Peterson, S.C., Milwaukee, and John A. Yanchunis and Jill H. Bowman of James, Hoyer, Newcomer & Smiljanich, PA., Tampa, Florida.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Christopher C. Mohrman of Michael Best & Friedrich LLP, Milwaukee.
    Before Brown, Nettesheim and Anderson, JJ.

       Petition to review dismissed 5-3-06.

   ANDERSON, J.

¶ 1. Faye Meyer, on her own behalf and on behalf of all others similarly situated in the state of Wisconsin, appeals from an order dismissing the complaint against The Laser Vision Institute, LLC, d/b/a The Lasik Vision Institute, a Florida corporation (LVI). In her complaint, Meyer alleged that LVTs newspaper advertisement purporting to offer the Lasik procedure for $299 per eye and a free consultation with a patient counselor contained untrue, deceptive or misleading statements of fact in violation of Wis. Stat. § 100.18(1) (2003-04), and was a plan or scheme, the purpose of which was not to sell the procedure at the advertised price, contrary to § 100.18(9). Meyer also raised claims of unjust enrichment and money had and received. Because Meyer cannot prevail on any of these claims, even if the facts as alleged in the complaint and the reasonable inferences drawn from those facts are taken as true, we affirm the order granting LVTs motion to dismiss Meyer's complaint.

STANDARD OF REVIEW

¶ 2. The scope of our review drives our analysis in this case. We therefore begin with a consideration of the appropriate standard of review.

¶ 3. The issue before this court is whether Meyer's complaint states a claim upon which relief can be granted. A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 245, 593 N.W.2d 445 (1999). The facts set forth in the complaint must be taken as true and the complaint dismissed only if it appears certain that no relief can be granted under any set of facts the plaintiffs might prove in support of their allegations. Northridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 923, 471 N.W.2d 179 (1991). The reviewing court must construe the facts set forth in the complaint and all reasonable inferences that may be drawn from those facts in favor of stating a claim. Id. at 923-24. Whether a complaint states a claim for relief is a question of law which this court reviews de novo. Id. at 923.

COMPLAINT

¶ 4. On December 15, 2004, Meyer filed an amended complaint against LVI alleging that around November 2003 she saw LVTs advertisement in the Sheboygan Press newspaper. The advertisement offered the Lasik procedure for $299 per eye and a free consultation. Meyer called the toll-free telephone number and scheduled her free consultation. Meyer met with a patient counselor. The counselor was a commissioned sales representative with no medical background. The counselor was not licensed under Wis. Stat. ch. 448. The counselor advised Meyer that she could not have the advertised rate of $299 per eye. The counselor sold Meyer the Lasik procedure for $2600 for both eyes and additional products for approximately $200. Meyer paid a nonrefundable deposit.

¶ 5. According to the complaint, all of this information was conveyed to Meyer prior to her "examination by any doctor." Meyer was not permitted to see a doctor until after she agreed to the procedure and made the nonrefundable down payment. Dr. Ivan Ireland performed her procedure in early January 2005. At that time, LVI charged Meyer for the balance of the cost of the procedure.

¶ 6. Based upon these allegations, Meyer prayed for relief under Wis. Stat. § 100.18(1) and (9) and the equitable doctrines of unjust enrichment and money had and received. We first assess the legal sufficiency of the claims based upon each of the statutory violations in turn and then combine our examination of the legal sufficiency of the claims based upon unjust enrichment and money had and received.

Wis. Stat. §100.18(1)

¶ 7. Meyer's complaint alleged that the advertisement in the Sheboygan Press newspaper was untrue, deceptive or misleading in violation of Wis. Stat. § 100.18(1). Two elements form the basis for a § 100.18(1) violation: There must be an advertisement or announcement, and such advertisement must contain a statement that is "untrue, deceptive or misleading." State v. American TV & Appliance of Madison, Inc., 146 Wis. 2d 292, 300, 430 N.W.2d 709 (1988).

¶ 8. Meyer correctly observes that an advertisement can violate Wis. Stat. § 100.18(1) without making "untrue" statements as long as those statements can be properly characterized as deceptive or misleading. Citing cases from other jurisdictions, Meyer points out that implied representations in an advertisement may also render it deceptive or misleading. See FTC v. Wilcox, 926 F. Supp. 1091, 1098 (S.D. Fla. 1995). Meyer argues that two statements in LVTs advertisement were expressly or impliedly deceptive or misleading.

¶ 9. Meyer first contends that the advertisement's claim that a customer will get a free consultation with a counselor was deceptive or misleading. According to Meyer, this is because the term "counselor" suggests a licensed medical professional qualified to give medical advice and, unbeknownst to her, the counselor was actually a commissioned sales representative with an incentive to sell the highest-priced procedures.

¶ 10. We are not persuaded that the advertisement's promise of a free consultation with a counselor was misleading or deceptive. First, Meyer's complaint does not allege that the advertisement describes the role of the counselor. Meyer's complaint does not contend that the advertisement states that the counselor is a licensed medical professional or that the counselor is not a commissioned sales representative.

¶ 11. Further, the fact that the counselor is a commissioned sales representative who has an incentive to sell higher priced procedures and additional products also does not render the statements deceptive or misleading. In American TV, our supreme court discussed the relationship between profit motives and Wis. Stat. § 100.18. See American TV, 146 Wis. 2d at 304. Although American TV was a "puffery" case in a retail store context, the principles the court articulated concerning that relationship apply with equal force to other § 100.18(1) and (9) claims involving commissioned sales representatives.

¶ 12. There, American TV & Appliance of Madison, Inc., ran a radio advertisement stating that it was having a "clearance" and "closeout" sale on the "finest" and "best" washers and dryers and that these appliances would be available for only $499. American TV, 146 Wis. 2d at 295-96. The state cried foul and filed a complaint alleging violations of Wis. Stat. § 100.18(1) and (9). American TV, 146 Wis. 2d at 297-98. The complaint alleged that there were incentives for American salespersons that worked on commission to try to sell more expensive washer and dryer models and that, in fact, American stocked and sold more of those models. Id. at 295, 304. Our supreme court concluded that the profit motive of the salespersons did not so easily transfer into a cause of action under § 100.18(9): "All profit motivated retailers recognize these incentives and hope to sell their more profitable items, if possible. Section [100.18(9)(a)], cannot be interpreted to make unlawful such an incentive." American TV, 146 Wis. 2d at 304. This principle applies to § 100.18(1) claims as well. Applying the principle to the matter at hand, we conclude that the fact that the LVI counselors were commissioned sales representatives who had a motive to sell the higher-priced procedures does not, without more, translate into a viable § 100.18(1) claim.

¶ 13. Meyer next alleges that the advertisement's claim that Lasik was available for $299 per eye was deceptive and misleading because that low-cost procedure was not generally available. However, the fact that not every consumer responding to the advertisement would qualify for the low-cost procedure does not mean that LVI violated Wis. Stat. § 100.18(1). Meyer failed to allege in her complaint that the low-cost procedure is unavailable to those who want it and qualify for it. Meyer also failed to allege that she qualified for the low-cost procedure and LVI wrongfully refused to perform it. She did not claim that the counselor disparaged the low-cost procedure to her; rather, she claimed only that the counselor informed her that she "could not have" the low-cost procedure and sold her a more expensive procedure and additional products.

¶ 14. Meyer suggests that the question of whether LVTs advertisement was deceptive or misleading cannot be resolved on a motion to dismiss and should have been sent to the fact finder. See, e.g., Dorr v. Sacred Heart Hosp., 228 Wis. 2d 425, 445-46, 597 N.W.2d 462 (Ct. App. 1999). However, that question need only be sent to the trier of fact where there are facts alleged or reasonable inferences that can be drawn from those facts that could form the basis for a Wis. Stat. § 100.18 claim. See Dorr, 228 Wis. 2d at 445-46. Here, even if all of the allegations pled and the reasonable inferences drawn are taken as true, it is quite clear that Meyer cannot prevail under § 100.18(1).

Wis. Stat. § 100.18(9)

¶ 15. In her complaint, Meyer alleged that the advertisement was part of an elaborate bait-and-switch scheme in violation of Wis. Stat. § 100.18O). There are three elements that must be alleged to state a claim under this provision. American TV, 146 Wis. 2d at 303. First, there must be an advertisement. Id. Second, there must be a plan or scheme of which the advertisement is a part. Id. Third, the purpose or effect of the plan must he to not sell the product as advertised. Id.

¶ 16. According to Meyer's complaint, the advertisement was part of a sophisticated plan or scheme, the purpose of which was to sell consumers the highest-priced Lasik procedure possible rather than the advertised low-cost procedure. The purpose of the advertisement, "the bait," was to lure customers into making an appointment for a free consultation with a patient counselor by offering the Lasik procedure for the low price of $299 per eye. "The switch," as Meyer alleged, occurred at the appointment. The counselor would inform the customers that they could not get the procedure at the advertised price, but that they could purchase the Lasik procedure at a higher cost. The counselor would then sell the customers the higher-cost procedure and additional products and secure a nonrefundable deposit before the customer had the opportunity to speak with a doctor. Meyer's complaint states that as a result of this plan or scheme, "few, if any, LVI customers . . . pay only the advertised price."

¶ 17. Here, again, the principles driving the American TV court's holding assist us. We quote American TV at length:

Missing from the complaint are allegations tending to prove that, apart from any purpose not to sell the merchandise as advertised, there was a plan or scheme to carry out such a purpose. The state's complaint is more conspicuous by what it does not allege than by what it does allege. It does not allege that the $499 sets were not available to customers. It does not allege that the $499 sets were not sold to customers. To the contrary, it acknowledges four sets were sold. It does not allege that the sets displayed were defective. It does not allege that salespersons discouraged any actual customers from buying the $499 model and then switched them to more expensive models. The complaint does not allege any improper overt act.
The complaint does not allege anything except that there were incentives for American to try to sell the more expensive models and that, in fact, it stocked and sold more of those models. All profit motivated retailers recognize these incentives and hope to sell their more profitable items, if possible. Section 100.18(9) (a), Stats., cannot be interpreted to make unlawful such an incentive. The statute requires a plan or scheme which is not demonstrated in this complaint.

American TV, 146 Wis. 2d at 303-04.

¶ 18. Like the State's complaint in American TV, Meyer's complaint is more conspicuous by what facts it does not allege than by what facts it does allege. While Meyer's complaint is replete with legal conclusions concerning LVTs alleged bait-and-switch scheme, absent from Meyer's complaint are factual allegations tending to prove that, apart from any purpose not to sell the Lasik procedure for $299, there was a plan or scheme to carry out such a purpose.

¶ 19. Again, the complaint fails to allege that the low-cost procedure was not made available to consumers who qualified for the procedure and who wanted it. Specifically, it fails to allege that Meyer qualified for the low-cost procedure and was wrongfully denied it. The complaint does not allege that the counselor disparaged the low-cost procedure to Meyer in an effort to discourage her from purchasing it and then switched to the higher-cost procedure. Thus, as in American TV, the complaint does not allege any improper overt act.

¶ 20. The complaint merely alleges that a commissioned salesperson informed her that she "could not have" the low-cost procedure and sold her a higher-priced procedure and additional products. However, the use of commissioned sales representatives is not determinative evidence of a bait-and-switch plan or scheme. Id. at 308. Given these circumstances, we hold that the allegations in Meyer's complaint, like the complaint in American TV, are insufficient to form the basis for a Wis. Stat. § 100.18(9) claim.

Unjust Enrichment and Money Had and Received

¶ 21. Finally, Meyer alleged claims of unjust enrichment and money had and received. These two claims are mirror images of each other. See City of Milwaukee v. Knox, 221 Wis. 335, 340, 266 N.W. 911 (1936) (holding that an action for money had and received is governed by equitable principles and is based upon the fact of unjust enrichment; the opposing party must be unjustly enriched by money to which the first party must be legally and equitably entitled). We therefore collapse Meyer's claims under these two theories into a single discussion.

¶ 22. Meyer's complaint pled facts which demonstrate that the parties entered into a contract when the counselor sold her the higher-cost Lasik procedure and additional products and she put forth the money for the nonrefundable down payment. Meyer's equitable claims are barred by this contract. See Greenlee v. Rainbow Auction/Realty Co., 202 Wis. 2d 653, 671-72, 553 N.W.2d 257 (Ct. App. 1996) (doctrine of unjust enrichment does not apply where parties have entered into a contract); Wrede v. Exchange Bank of Gibbon, 531 N.W.2d 523, 530 (Neb. 1995) (where rights of parties to money or property are governed by a valid contract, an action for money had and received does not lie). Meyer makes several attempts to get out from under this general rule.

¶ 23. Meyer contends that even if she did enter into a contract with LVI, that contract violated Wis. Stat. § 448.30 and was void. See Felland v. Sauey, 2001 WI App 257, ¶ 14, 248 Wis. 2d 963, 637 N.W.2d 403 (noting that while the general rule is that contracts made in violation of a statute will not be enforced, not all contracts made in violation of a statute are void). According to Meyer, because the contract is void, it does not bar her equitable claims. See Arjay Inv. Co. v. Kohlmetz, 9 Wis. 2d 535, 538, 101 N.W.2d 700 (1960) ("Under the theory of unjust enrichment it is immaterial whether the defendant and the plaintiff entered into a void contract.").

¶ 24. Wisconsin Stat. § 448.30 requires a physician who treats a patient to inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. From this, Meyer reasons that it is improper for an unlicensed commissioned sales representative to sell the Lasik services, products and procedures to customers and to require a nonrefundable down payment prior to their meeting with a doctor.

¶ 25. We reject Meyer's contention that her complaint pled facts showing a violation of Wis. Stat. § 448.30. Even if a counselor sold Meyer the higher-cost procedure and Meyer had to secure the procedure with a nonrefundable down payment, the bottom line is that Meyer failed to allege in her complaint that Dr. Ireland, the doctor who performed her procedure, did not comply with § 448.30. Meyer did not allege that Dr. Ireland did not conduct an examination of her before performing the procedure, did not inform her of the risks and benefits of the procedure and did not discuss alternate treatment. Finding no statutory violation, we hold that the contract is valid and enforceable, thereby barring her equitable claims.

¶ 26. Meyer further relies upon the "total business relationship" exception to the general rule that the existence of a contractual relationship will bar an equitable claim. This exception applies where the contract fails to address the essential elements of the parties' "total business relationship." Kramer v. Alpine Valley Resort, Inc., 108 Wis. 2d 417, 425, 321 N.W.2d 293 (1982). This exception, however, does not apply where the contract covers the aspects relevant to the plaintiffs equitable claim. See Northern Crossarm Co. v. Chemical Specialties, Inc., 318 F. Supp. 2d 752, 766 (W.D. Wis. 2004), reconsideration denied, 320 F. Supp. 2d 808 (W.D. Wis. 2004). In other words, "Wisconsin law does not bar a party from seeking equitable relief for a benefit conferred, if that benefit falls outside the scope of the parties' contractual relationship." Id. (citation omitted).

¶ 27. Here, the facts pled in the complaint clearly show that the contract contemplated the benefit conferred (monetary compensation for the higher-cost procedure and additional products). Contrary to Meyer's assertions, we need go no further than the pleadings to reach this conclusion. The complaint expressly acknowledges that the counselor sold Meyer the higher-cost procedure and additional products, Meyer received the procedure and paid LVI the amount requested. Thus, the "total business relationship" exception does not apply.

¶ 28. Meyer next maintains that her equitable claims and her Wis. Stat. § 100.18 claims are allowed because Wis. Stat. § 802.02(5) permits inconsistent pleadings in the alternative. However, the fundamental problem here is not merely inconsistent claims. As we have explained, Meyer's equitable claims are premised on the parties' contractual relationship. Equitable claims based on a contract are not permitted. See Greenlee, 202 Wis. 2d at 671-72; Wrede, 531 N.W.2d at 530.

CONCLUSION

¶ 29. Meyer's complaint fails to state a claim upon which relief can be granted. Meyer failed to allege facts showing that the advertisement she saw in the She-boygan Press newspaper for the $299 Lasik procedure was deceptive or misleading in violation of Wis. Stat. § 100.18(1) or that the advertisement was part of a bait-and-switch scheme to sell the procedure at a higher cost contrary to § 100.18(9). Further, the parties' contract bars Meyer's equitable claims. The trial court's order dismissing Meyer's complaint is affirmed.

By the Court. — Order affirmed.

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

       This is a class-action lawsuit. However, in this appeal, we are concerned solely with whether Meyer, the representative of the class, has stated a claim upon which relief can be granted.

       WISCONSIN Stat. § 100.18(1) provides:
      (1) No person, firm, corporation or association, or agent or employee thereof, with intent to sell, distribute, increase the consumption of or in any wise dispose of any real estate, merchandise, securities, employment, service, or anything offered by such person, firm, corporation or association, or agent or employee thereof, directly or indirectly, to the public for sale, hire, use or other distribution, or with intent to induce the public in any manner to enter into any contract or obligation relating to the purchase, sale, hire, use or lease of any real estate, merchandise, securities, employment or service, shall make, publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or television station, or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to such purchase, sale, hire, use or lease of such real estate, merchandise, securities, service or employment or to the terms or conditions thereof, which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.

       In her complaint, Meyer alleged that the commissioned sales representatives, or counselors, informed customers as a class prior to an examination by a doctor that they could not have the low-cost procedure and/or that such procedure was outmoded, unsafe or inappropriate for their particular situations. However, she did not allege that this was also what she was told when she met with the LVI counselor.

       Wisconsin Stat. § 100.18(9) provides in part:
      (a) It is deemed deceptive advertising, within the meaning of this section, for any person or any agent or employee thereof to make, publish, disseminate, circulate or place before the public in this state in a newspaper or other publication or in the form of book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label or over any radio or television station or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to the purchase, sale, hire, use or lease of real estate, merchandise, securities, service or employment or to the terms or conditions thereof which advertisement, announcement, statement or representation is part of a plan or scheme the purpose or effect of which is not to sell, purchase, hire, use or lease the real estate, merchandise, securities, service or employment as advertised.

       Meyer asserts that the trial court erred in concluding that even if the original contract was void or voidable because Meyer did not see a doctor until after she paid the nonrefundable down payment, Meyer later made or affirmed that unlawful agreement by her actions. Meyer submits that the trial court had to go beyond the pleadings to find that Meyer had made or affirmed the original unenforceable agreement when she met with the doctor, proceeded to have the procedure and paid the higher price. However, because we conclude that the original contract was not void or voidable, we need not address this argument.


author: PER CURIAM.

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

      No. 2005AP2565-D.

      Decided June 2, 2006.

    2006 WI 59
    (Also reported in 715 N.W.2d 594.)
   PER CURIAM.

¶ 1. We review the referee's report, findings of fact, and conclusions of law, based on the parties' stipulation that Attorney Kremkoski committed professional misconduct with respect to his handling of two client matters. The referee recommended that a public reprimand be issued as a sanction for this misconduct. After reviewing the parties' responses to this court's order to show cause why the discipline imposed should not be a suspension rather than a public reprimand, we accept the referee's recommendation that a public reprimand is appropriate.

¶ 2. Attorney Kremkoski was admitted to practice law in Wisconsin in 1976 and practices in Racine. In 1997 he received a consensual private reprimand for failing to file a complaint when he knew the statute of limitations would soon expire; failing to inform the client that the statute of limitations had expired; and making repeated misrepresentations about receiving a $100 payment from the client. In 2004 Attorney Krem-koski was publicly reprimanded for misconduct consisting of representing another person in the same or substantially related matter in which that person's interests were materially adverse to the interests of the former client without obtaining the former client's consent in writing after consultation; failing to hold in trust, separate from his own property, an advance fee; failing to return any unearned portion of a client's advance fee; failing to act with reasonable diligence and promptness in representing a client; and failing to comply with a client's reasonable requests for information concerning the status of a case. See In re Disciplinary Proceedings Against Kremkoski, 2004 WI 150, 277 Wis. 2d 83, 690 N.W.2d 430.

¶ 3. On October 14, 2005, the Office of Lawyer Regulation (OLR) filed a complaint alleging four counts of misconduct with respect to two client matters. The first client matter detailed in the OLR's complaint involved Attorney Kremkoski's representation of S.S. S.S. sued his employer for restitution regarding monetary damages S.S. agreed to pay as a result of an automobile accident, while driving a vehicle owned by the employer, which S.S. subsequently learned was not licensed, registered or insured. S.S. paid Attorney Kremkoski a $500 retainer. Attorney Kremkoski did not file suit on S.S.'s behalf until seven months later. Attorney Kremkoski failed to send the summons and complaint out for service, and he failed to inform S.S. that he did not obtain service on the defendants.

¶ 4. On several occasions S.S. and his parents tried to contact Attorney Kremkoski about the status of the lawsuit. Attorney Kremkoski failed to return their calls.

¶ 5. On August 11, 2003, the circuit court issued an order noting that service on the defendants had not been made within the statutory time period and that the case would be dismissed within 20 days unless good cause was shown why the order should not take effect.

¶ 6. S.S.'s parents informed Attorney Kremkoski of the court's order after searching the Wisconsin Circuit Court Access (WCCA) Web site for information about the status of the case. S.S.'s parents located a process server and served the defendants well after the 90-day period specified by statute.

¶ 7. On October 24, 2003, the circuit court granted the defendants' motion to dismiss without prejudice, because service had not been accomplished within the statutory period and because the matter had not been diligently prosecuted. Attorney Kremkoski appeared at the hearing but failed to notify S.S. of the dismissal of the case.

¶ 8. Attorney Kremkoski indicated he would redraft the pleadings and refile the case, but the case was not refiled and Attorney Kremkoski never spoke with S.S. or his parents again. On February 2, 2004, S.S. terminated Attorney Kremkoski's representation.

¶ 9. The OLR's complaint alleged the following counts of misconduct with respect to Attorney Kremkoski's handling of the S.S. matter:

COUNT ONE — By failing to file the lawsuit for seven months after he was retained, and by failing to serve the defendants, resulting in a dismissal of the suit, Kremko-ski failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
COUNT TWO — By'failing to inform S.S. that his lawsuit was dismissed due to Kremkoski's failure to timely serve the defendants and by failing to respond to the S.S.' telephone calls, Kremkoski failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a).

¶ 10. The other client matter detailed in the OLR's complaint involved Attorney Kremkoski's representation of S.A., who retained Attorney Kremkoski in November 2000 to represent him on a charge of disorderly conduct that resulted from an altercation with J.V S.A. pled guilty to the charge.

¶ 11. On May 10, 2002, J.V filed a civil lawsuit against S.A. due to alleged injuries from the altercation. S.A. retained Attorney Kremkoski to represent him in the lawsuit. One of the issues in the case was whether J.V had a pre-existing medical condition.

¶ 12. On June 14, 2002, S.A. paid Attorney Kremkoski a $500 retainer. On March 17, 2003, S.A. paid Attorney Kremkoski an additional $500.

¶ 13. On June 20, 2002, Attorney Kremkoski filed an answer and affirmative defenses on S.A.'s behalf. He also served J.V's attorney with interrogatories. Due to J.V's failure to answer the interrogatories, Attorney Kremkoski filed a motion to compel production on September 30, 2002. Attorney Kremkoski withdrew the motion when J.V agreed to produce the responses by the end of that day.

¶ 14. On October 3, 2002, J.V, through his attorney, served Attorney Kremkoski with interrogatories. Attorney Kremkoski failed to answer them.

¶ 15. On November 27, 2002, J.V's attorney designated expert witnesses, provided proof of permanency and itemized J.V's special damages. Attorney Kremko-ski failed to depose any of J.V's experts, did not obtain an independent medical examination of J.V, and did not obtain certified medical records from the medical providers to substantiate whether J.V had a pre-existing medical condition.

¶ 16. On January 21, 2003, J.V's attorney filed a motion to compel production of S.A.'s responses to interrogatories. On January 23, 2003, J.V's attorney noticed the deposition of J.V's treating physician for February 19, 2003. Attorney Kremkoski did not attend the deposition despite a summary prepared by the treating physician on October 18, 2002, indicating that J.V initially sought treatment from the doctor on June 13, 2002, and told him the pain began without any antecedent events. The physician noted it was not until a later visit that J.V related his recurrence of back pain to the altercation with S.A.

¶ 17. On February 3, 2003, the circuit court issued an order requiring S.A. to produce answers to the interrogatories and requests for production of documents. The court also ordered S.A. to appear for a deposition at J.V's attorney's office.

¶ 18. On February 6, 2003, Attorney Kremkoski faxed answers to the interrogatories to J.V's attorney. Attorney Kremkoski informed J.V's counsel that, due to a prior commitment, he would not be appearing at the deposition with his client.

¶ 19. S.A. appeared at the deposition without counsel and refused to answer any questions. The deposition was rescheduled and Attorney Kremkoski appeared at the deposition with SA.

¶ 20. Although the scheduling order required S.A. to designate expert witnesses by January 30, 2003, on February 26, 2003, Attorney Kremkoski wrote to J.Vs counsel indicating he might call two expert witnesses at the hearing. Attorney Kremkoski also reported that he had obtained a new trial date of April 15, 2003. The trial had previously been scheduled for March 4, 2003. On March 7, 2003, Attorney Kremkoski forwarded notice of the new trial date to S.A. with a note saying, "Please note new date. Come see me. We need to work on this."

¶ 21. On April 9, 2003, the circuit court adjourned the trial to June 10. Attorney Kremkoski sent the notice of the adjournment to S.A. with a note saying, "Just got this in the mail. We will be the #1 trial that day."

¶ 22. Beginning April 1, 2003, S.A. and/or his wife called Attorney Kremkoski 10 to 15 times requesting information about the status of the lawsuit. S.A. also stopped at Attorney Kremkoski's office and told him he wanted to meet to go over the status of the case. Attorney Kremkoski admits that he failed to speak to or meet with S.A. in the weeks prior to the trial.

¶ 23. On June 5, 2003, Attorney Kremkoski wrote to S.A. reminding him that the trial was the following week. S.A. received the letter on June 7 and said that before receiving the letter he was unaware of the trial date.

¶ 24. Attorney Kremkoski did not speak with S.A. about the trial until June 9,2003. On that date, at S.A.'s request, Attorney Kremkoski faxed a request for an adjournment of the trial. At a hearing on the request S.A. expressed his desire to terminate Attorney Kremkoski's representation. The circuit court allowed Attorney Kremkoski to withdraw and gave S.A. the choice to proceed with the trial or pay $2500 to opposing counsel for expenses in preparing for trial. S.A. reluctantly elected to pay the $2500 and hired new counsel to represent him in the lawsuit.

¶ 25. S.A. filed a small claims action against Attorney Kremkoski to recover the $2500 payment as well as the $1000 in legal fees he had paid to Attorney Kremkoski. Attorney Kremkoski counterclaimed seeking $1343.75 in additional fees. After a court trial in February 2004 S.A. was awarded a judgment against Attorney Kremkoski in the amount of $2607. Attorney Kremkoski satisfied the judgment in March 2004.

¶ 26. The OLR's complaint alleged the following counts of misconduct with respect to Attorney Kremkoski's handling of S.A.'s case:

COUNT THREE — By performing inadequate preparation for the lawsuit, by failing to conduct any depositions, by failing to attend the deposition of the plaintiffs expert witness, by failing to obtain certified medical records related to the plaintiffs pre-existing condition, by failing to arrange an independent medical examination of the plaintiff, by failing to subpoena any witnesses for trial, and by failing to meet with his client to prepare for trial, Kremkoski failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3.
COUNT FOUR — By failing to respond to S.A.'s telephone calls seeking information about the lawsuit, and by failing to meet with S.A. as he requested, Kremkoski failed to keep a client reasonably informed about the status of a matter and comply with reasonable requests for information, in violation of SCR 20:1.4(a).

¶ 27. On November 23, 2005, Attorney Kremko-ski filed an answer admitting all of the allegations of the OLR's complaint. Attorney Kathleen Callan Brady was appointed referee in the matter. Attorney Kremko-ski and the OLR subsequently entered into a stipulation for the imposition of a public reprimand. The stipulation stated that Attorney Kremkoski was aware of his right to be represented by counsel; that no promises were made concerning future discipline or lenience in the matter; that he understood the nature and consequences of the case and entered into the stipulation voluntarily and of his own free will.

¶ 28. The referee issued her report on January 20, 2006, and agreed that a public reprimand was the appropriate sanction for Attorney Kremkoski's admitted misconduct.

¶ 29. This court will adopt a referee's findings of fact unless they are clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction it sees fit regardless of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686. The referee's findings of fact are not clearly erroneous and we adopt them. We also agree with the referee's conclusions of law.

¶ 30. On March 16, 2006, this court ordered the parties to show cause why the discipline in the proceedings should not be a suspension rather than a public reprimand. Attorney Kremkoski did not file a response. The OLR responded by saying that Attorney Kremkoski's misconduct in this case occurred soon after or in the midst of the prior disciplinary proceeding that resulted in the 2004 public reprimand and in both cases he was retained by the clients in 2002.

¶ 31. The OLR said it did not consider Attorney Krexnkoski's prior public reprimand to be significantly aggravating when weighing its sanction recommendation and that it believed that due to the timing of the underlying misconduct a progressively more severe sanction need not be sought. The OLR further noted that its investigation had revealed that Attorney Krem-koski ran his office " 'on a shoestring,' lacking office support or a reliable system for tracking deadlines." It also pointed out there was no monetary harm given that in the S.S. case the lawsuit was dismissed without prejudice and in the S.A. case, although the client did have to pay a sanction, Attorney Kremkoski reimbursed the client. The OLR also noted that Attorney Kremko-ski was fully cooperative during the course of the disciplinary proceeding.

¶ 32. While this court generally adheres to the practice of progressive discipline, after careful review of the record and the OLR's response to the order to show cause, we conclude that a public reprimand is an appropriate sanction for Attorney Kremkoski's admitted misconduct.

¶ 33. IT IS ORDERED that Joe E. Kremkoski is publicly reprimanded for professional misconduct.

       SCR 20:1.3 states that "[a] lawyer shall act with reasonable diligence and promptness in representing a client."

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