author: BROWN, J.

text:
    E. C. Styberg Engineering Company, Inc. and Combined Specialty Insurance Co., c/o Cambridge Integrated Services Group, Plaintiffs-Appellants, v. Labor and Industry Review Commission and Richard Hetchler, Defendants-Respondents.
    Court of Appeals

      No. 04-1039.

      Submitted on briefs November 10, 2004.

    Decided December 22, 2004.

    2005 WI App 20
    (Also reported in 692 N.W.2d 322.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Joseph P. Danas, Jr. and Patrick D. McNally of Borgelt, Powell, Peterson & Frauen, S.C. of Milwaukee.
    On behalf of the defendant-respondent Labor and Industry Review Commission, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Lowell E. Nass, assistant attorney general.
    On behalf of the defendant-respondent Richard Hetchler, the cause was submitted on the brief of Thomas W Durkin of Becker, French & DeMatthew of Racine.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review denied 5-11-2005.

   BROWN, J.

¶ 1. In this case, an employer and its insurance company challenge the Labor and Industry Review Commission's determination that an employee who sustained a knee injury while playing softball during a paid break period deserved worker's compensation benefits. We reject the challenge. The factual scenario in this case may be one of first impression, but LIRC had to make a value judgment about what constituted employment and its incidents in making its determination. Because LIRC employed its special expertise in making this value judgment, we accord its decision great weight deference. We hold that the agency made its decision based on reason. The employee's activity was a momentary and insubstantial departure from his duties, so the result LIRC reached is consistent with prevailing case law. The major case the respondents cite in support of their proposition that LIRC acted improperly is factually distinguishable and, at least arguably, was overruled by later case law. Accordingly, there was nothing improper about LIRC's inherently value-laden decision to adopt a rule from Professor Larson's treatise on worker's compensation. We affirm.

¶ 2. In 1998, Richard Hetchler began his employment at E.C. Styberg Engineering Company, Inc. He worked in Styberg's service department as a material handler, and his work involved operating a forklift and shipping duties, such as checking parts for rust and packing them. His normal workday included three break periods, including one twenty-minute, paid break that began at 11:55 a.m.

¶ 3. In the early months of 2000, Styberg implemented a nonsmoking policy. Employees could no longer smoke on Styberg's premises during their breaks. Otherwise, Styberg's employees could do as they wished on the paid breaks.

¶ 4. At the beginning of May, the weather became fair enough to spend the break outdoors. Styberg set up a basketball hoop and posted a notice on a bulletin board for work-related announcements that the hoop was available for employees to use during their break periods. Beginning at that time, employees, including Hetchler, frequently played basketball while on break with no objections from Styberg.

¶ 5. Employees also began regularly to play softball on their breaks "when the weather broke nice." They provided the softball equipment themselves and played in the area of the basketball hoop. Hetchler joined in these games on two occasions, once on May 25, during his 11:55 break, and once prior to that date. On the May 25 occasion, Hetchler slipped while swinging the bat and fell to the ground, sustaining a patellar dislocation of his right knee.

¶ 6. Hetchler missed eight weeks and five days of work as a result of his injury. When he returned, the basketball hoop was gone. He learned that Styberg no longer permitted sports of any kind on its premises during the break periods.

¶ 7. On August 20, 2002, Hetchler appeared at a worker's compensation hearing before an administrative law judge (ALJ) at the Worker's Compensation Division of the Department of Workforce Development, where he sought a finding of compensability for his injuries. He also sought temporary total disability benefits from May 26, 2000 to July 21, 2000 and four additional days in August, four percent partial disability to the right knee, and the payment or reimbursement of more than $4700 in medical expenses. Hetchler argued that at the time of his injury, he was performing service growing out of and incidental to his employment at Styberg and that the injury arose from his employment.

¶ 8. Hetchler based his argument that he was engaged in service to Styberg on Bruns Volkswagen, Inc. v. DILHR, 110 Wis. 2d 319, 328 N.W.2d 886 (Ct. App. 1982), and Nigbor v. DILHR, 120 Wis. 2d 375, 355 N.W.2d 532 (1984). According to Hetchler, both cases stood for the proposition that momentary, insubstantial deviations from employment duties did not take the employee's conduct out of the scope of employment and employed a four-part test for determining the substan-tiality of a deviation. Hetchler contended that like the employee in Bruns Volkswagen, Inc., who got hurt while wrestling with another employee, he became injured while engaged in horseplay that was of short duration, impulsive, and which occurred during a natural lull in service for the employer.

¶ 9. Hetchler also concluded that his injury arose out of his employment because he was on Styberg's premises and Styberg had set up the basketball hoop and encouraged employees to use it. He concluded that in doing so, Styberg had thereby encouraged employees to play sports on company property during their breaks. Thus,

As succinctly stated in [Village of Butler v. Industrial Commission, 265 Wis. 380, 385, 61 N.W.2d 490 (1953)], "all that is required is that the obligations or conditions of employment create the 'zone of special danger' out of which the injury arose." Clearly, the obligations or conditions [of] Hetchler's employment created the "zone of danger" out of which his injury arose.

¶ 10. Styberg countered as follows: Hetchler was engaged in recreational activity when he sustained his injuries, not horseplay. It maintained that although Bruns Volkswagen, Inc. departed from State Young Men's Christian Ass'n v. Industrial Commission, 235 Wis. 161, 292 N.W. 324 (1940) (hereafter YMCA) (reversing an award of compensation to an on-call, off-duty medical student employee who sustained an eye injury while playing ténnis on camp recreational facilities), in the realm of horseplay in the workplace, horseplay and recreational activity were distinguishable. Styberg maintained that YMCA was still the lead case for injuries resulting from recreational activity. It quoted the following language from YMCA:

In determining whether an injury suffered while playing a game is to be compensated, the deciding factor must be found in facts showing the act to have been performed for the exclusive benefit of the employee so as to be a personal privilege or an act which the employer permits the employee to undertake for some cause apart from the employer's own interests.

Id. at 163.

This excludes injuries sustained when off duty and while the relation of employment does not operate upon [the employee] by requiring him [or her] to do anything or be in a particular place. He [or she] then conducts himself [or herself] according to his [or her] own wishes, sets the stage himself [or herself], and controls the elements that constitute the hazard. Where there is no evidence that at the time the injury was received the claimant was engaged in any work for his [or her] employer, a finding is not warranted that the injury arose out of and in the course of his [or her] employment.

Id. at 165-66 (citation omitted). Styberg concluded that because Hetchler was free to do as he wished on his break and his participation in a softball game conferred no benefit on Styberg, this case was analogous to YMCA.

¶ 11. The ALJ issued a decision on November 4, 2002, favoring Styberg and its insurance carrier, Combined Specialty Insurance Co. The decision accepted Styberg's position that Bruns Volkswagen, Inc. and Nigbor were horseplay cases and hence not on point. Instead it relied upon language in Schwab v. DILHR, 40 Wis. 2d 686, 162 N.W.2d 548 (1968) (a post-YMCA case), that social and recreational activities do not come within the course of one's employment simply because the employer receives some benefit in the form of increased employee morale and efficiency. The ALJ quoted the portion of the Schwab court's opinion that adopted Professor Larson's treatise on worker's compensation:

"Controversy is encountered also when the benefit asserted is the intangible value of increased worker efficiency and morale. Basically, the trouble with this argument is not that such benefits do not result, but that they result from every game the employee plays whether connected with his [or her] work or not. In this respect, the argument is reminiscent of the same view sometimes heard in connection with the personal comfort cases: eating, resting, and the like do indeed improve the efficiency of the employee, but this is equally true (and even more true) of the sleeping and eating which he [or she] does at home. And so, just as in the sleeping and eating cases some arbitrary time and space limitations must circumscribe the area within which the 'benefit' establishes work-connection, the recreation cases must submit to some similar limitation, since otherwise there is no stopping point which can be defined short of complete coverage of all the employee's refreshing social and recreational activities. It can be taken as the distinctly majority view that these morale and efficiency benefits are not alone enough to bring recreation within the course of employment."

See Schwab, 40 Wis. 2d at 692 (footnote omitted).

¶ 12. Hetchler filed a timely petition for review, and LIRC issued a decision on August 28, 2003 reversing the ALJ. It cited our decision in Bruns Volkswagen, Inc., in which we concluded that our supreme court implicitly overruled YMCA, at least

to the extent that it implied that any deviation to "exercis[e] a personal privilege apart from any interest of the employer, the nature of which cannot be considered as being for the benefit of the employer ... [does] not arise out of and in the course of employment."

See Bruns Volkswagen, Inc., 110 Wis. 2d at 323-24. LIRC noted that in Bruns Volkswagen, Inc. we instead followed the "momentary deviation" test that the supreme court announced in Maahs v. Industrial Commission, 25 Wis. 2d 240, 130 N.W.2d 845 (1964), which permitted payment of compensation in "curiosity cases." LIRC's opinion pointed out that the supreme court agreed with Bruns Volkswagen, Inc.'s extension oí Maahs when it decided Nighor, 120 Wis. 2d at 384 ("[We] moved away from the harsh rule that any deviation from employment would prevent an award of benefits and adopjted the rule that an impulsive, momentary, and insubstantial deviation will not bar recovery." (Citation omitted; quoted by LIRC)). LIRC pointed out that both Bruns Volkswagen, Inc. and Nighor relied on Professor Larson's treatise for this rule.

¶ 13. LIRC also observed that the courts have sometimes allowed compensation for injuries employees incur while on break. It noted the personal comfort doctrine, which employs a similar rule to that in Bruns Volkswagen, Inc. and Nigbor, when employees are on smoking, restroom, and coffee breaks. LIRC mentioned that Marmolejo v. DILHR, 92 Wis. 2d 674, 680, 285 N.W.2d 650 (1979), adopted this rule from Professor Larson's treatise.

¶ 14. Having observed that Schwab, Marmolejo, Bruns Volkswagen, Inc., acaá. Nigbor adopted rules from the Larson treatise, LIRC elected, in light of that fact, to follow § 22.03 of Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law (2004), which established a rule for injuries incurred from recreational activities on the employer's premises during lunch and break periods. LIRC summarized Larson & Larson as follows. First, most such injuries are compensable. See id. § 22.03[1], at 22-5. Second, there are three alternative conditions that can satisfy the "within the course of employment test," the one relevant to this case being whether the activity has gone on long enough for a reasonable employer to become aware of the activity. See id. §§ 22.01, 22.03[2], at 22-8-22-9. Third, therefore, recreational activities are within the course of employment when they have gone on long enough to become an incident of employment. See id. § 22.01, at 22-2.

¶ 15. Applying this treatise rule to the instant case, LIRC determined that compensation was appropriate. First, Styberg had put up the basketball hoop on its premises and invited employees to use it. Second, credible testimony in the record established that after this time workers frequently played basketball and softball. LIRC concluded that based on its affirmative actions with regard to the hoop, Styberg should have become aware by the time of Hetchler's injury that employees were playing sports during their breaks.

¶ 16. Styberg and Combined Specialty sought review in the Racine County Circuit Court. On February 27, 2004, the circuit court upheld LIRC's decision and dismissed the complaint. It determined that the administrative decision was entitled to great deference. It further concluded that LIRC's conclusions, which were based on its application of Professor Larson's treatise views, were reasonable. Styberg and Combined Specialty now appeal.

¶ 17. We first turn to the proper standard of review. We note that the conduct of Hetchler and Styberg involves factual determinations. See Ide v. LIRC, 224 Wis. 2d 159, 164, 589 N.W.2d 363 (1999). LIRC's findings of fact are conclusive so long as credible and substantial evidence exists to support them. Id. at 165; Wis. Stat. § 102.23(1) and (6) (2001-02). With respect to weight and credibility determinations, this court will not substitute its determination for that of LIRC. Ide, 224 Wis. 2d at 165; § 102.23(6). Our role involves the narrow task of searching the record for evidence that would support LIRC's findings. Ide, 224 Wis. 2d at 165.

¶ 18. As to LIRC's application of statutory concepts to the facts of this case, it matters little whether we characterize them as questions of fact or law. See Nigbor, 120 Wis. 2d at 383. In Nigbor, the supreme court stated that when the agency's determination calls for a value judgment and the agency employs significant expertise in reaching that determination, the courts give weight to that decision. Id. at 383-84. We will defer to the agency's conclusions so long as they are reasonable, even if we might have decided differently. Id. at 384.

¶ 19. The Nigbor standard of review clearly applies here. In that case, the supreme court specifically acknowledged that "[LIRC] has developed significant expertise in determining when an employee is acting within the scope of his [or her] employment...." Id. Significantly, Nigbor involved the interpretation of the same provisions relevant in this case, namely, Wis. Stat. § 102.03(l)(c) and (e). See Nigbor, 120 Wis. 2d at 382-83. Moreover, determining whether an employee "is performing service growing out of and incidental to his or her employment," § 102.03(l)(c), and whether "the accident ... causing injury arises out of the employee's employment," § 102.03(1)(e), involves a value judgment as to what constitutes employment and its incidents.

¶ 20. Styberg and Combined Specialty cite two cases in support of their argument that great weight deference is inappropriate and in favor of de novo review: Honthaners Restaurants, Inc. v. LIRC, 2000 WI App 273, 240 Wis. 2d 234, 621 N.W.2d 660, and Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29, reconsideration denied, 2004 WI 131, 276 Wis. 2d 32, 689 N.W.2d 59 (Wis. Oct. 29, 2004) (No. 02-1582). They cite Honthaners Rests., Inc. for the proposition that while great weight deference is appropriate when the four conditions set forth in Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995), are present, two of them are absent here. First, the respondents contend that LIRC's interpretation is not one of long standing. They state that LIRC "cannot assert that it has any level of expertise in determining the com-pensability under [Wis. Stat. ch. 102] of an employee's injury while engaging in a recreational activity on the employer's premises while on a break from his [or her] duties" because it has not applied or interpreted YMCA since our supreme court decided the case. Second, they argue that because LIRC did not follow YMCAs rule that an employee's injuries are noncompensable when the employee engages in a recreational activity for his or her own purposes, in violation of stare decisis, LIRC's decision does not provide for uniform and consistent application of the law.

¶ 21. We reject both arguments. With respect to the respondents' argument that LIRC's interpretation here is not one of long standing, Honthaners Rests., Inc. makes clear that it is irrelevant whether LIRC has previously considered similar factual situations. Honthaners Rests., Inc., 240 Wis. 2d 234, ¶ 12. Therefore, it does not matter whether LIRC has considered any cases since YMCA involving injuries arising out of on-premises, on-break recreational activity. The relevant inquiry is whether LIRC "has experience in interpreting a particular statutory scheme." Honthaners Restaurants, Inc., 240 Wis. 2d 234, ¶ 12 (emphasis added). As we stated above, our supreme court in Nigbor determined that it does, at least with respect to the provisions relevant to the instant appeal.

¶ 22. We also conclude that LIRC's decision introduces no inconsistency into the law. First, LIRC's decision to apply the treatise rule is entirely consistent with Nigbor. Engaging in sporting activity during a twenty-minute, paid break can be a momentary and insubstantial deviation from employment. Moreover, while we do not purport to decide whether it is appropriate to extend Nigbor to other factual situations , not before us, we do observe that Nigbor's "momentary deviation" test potentially explains the results in many of the worker's compensation cases we cited above. We cite Schwab as a particularly useful example because it was a post-YMCA, pre-Bruns Volkswagen, Inc. case. The injury in Schwab occurred hours after the workday had ended while the injured employee drove home from a work-related social event. See Schwab, 40 Wis. 2d at 687-88. Arguably, his drive was not a momentary, impulsive, and insubstantial deviation from work activity. Indeed, he was finished with work for the night. Even YMCA itself is fairly explainable based on the Nigbor test. One could easily conclude that being off duty, rather than merely on a short break as in the instant case, was not a momentary and insubstantial deviation from employment.

¶ 23. Alternatively, there is a strong argument that YMCA is no longer good law. We stated as much in Bruns Volkswagen, Inc., and the supreme court cited our decision's interpretation of Maahs with approval in Nigbor when it stated that the courts have moved away from the harsh rule that all deviations from employment preclude recovery of worker's compensation benefits. See Bruns Volkswagen, Inc., 110 Wis. 2d at 323-24; Nigbor, 120 Wis. 2d at 384. Although Styberg and Combined Specialty continue to distinguish these precedents as "horseplay cases," Bruns Volkswagen, Inc. does not support such a distinction. Indeed, adopting for one moment the respondents' classification of the various cases, Maahs was a "curiosity case," not a "recreational activity" case. Thus, we could not have concluded that Maahs and YMCA were inconsistent with one another had we deemed such distinctions legally significant. See Bruns Volkswagen, Inc., 110 Wis. 2d at 324.

¶ 24. We further reject the respondents' assertion that Beecher requires us to review this case de novo. They state that Beecher requires independent review when LIRC has interpreted an appellate decision. Here, as in Beecher, they claim that instead of interpreting the relevant statutes or any administrative rule, LIRC based its decision on its interpretation of case law and the Larson treatise, specifically Larson & Larson, supra, at §§ 22.01 and 22.03.

¶ 25. We disagree that Beecher is on point. In Beecher, LIRC relied on a section of the Larson treatise to modify case law, and its resulting interpretation of the relevant precedent disposed of the case. See Beecher, 273 Wis. 2d 136, ¶¶ 24, 26, 26 n.7. Here, LIRC simply concluded that YMCA did not control this case. It then asked "whether it [was] reasonable to follow Professor Larson's lead on the issue" to determine whether that rule should apply instead. It looked to appellate case law merely to support its value judgment that such a course was proper. Although its decision to follow the treatise rule must be reasonable, it was nonetheless a value judgment, and the Nigbor standard of review therefore applies.

¶ 26. Having determined the appropriate standards of review, we now examine LIRC's decision. We note first that Styberg and Combined Specialty contest the agency's findings of fact. Specifically, they assert that LIRC erred when it found that Styberg employees had been playing softball since early May. Despite the fact that Hetchler answered affirmatively when asked whether employees had been playing basketball and softball frequently on their breaks, the respondents claim that the question was ambiguous. Moreover, they contend that this answer was not credible evidence in light of the following exchange between Hetchler and his counsel:

Q: And this is the first time that you had played softball?
A: No, like the second time I said — we were there.

The respondents interpret this exchange as an admission by Hetchler that the employees had only played softball once prior to Hetchler's injuries.

¶ 27. We disagree. Even if Hetchler's affirmative answer was ambiguous, the exchange the respondents rely upon is equally ambiguous. "[F]irst time that you had played softball" could easily have referred to Hetchler individually. Such an interpretation would be entirely reasonable in light of the question immediately preceding it, namely, "In playing softball you were playing with other employees?" Thus, the respondents cannot rely on the exchange they cite to "clarify" the other testimony. Indeed, the equally plausible alternative reading constitutes substantial and credible evidence in support of LIRC's findings.

¶ 28. We also disagree with the respondents' assertion that LIRC erred in finding that softball had become a regular incident of employment at Styberg pursuant to the treatise rule — i.e., recreational activity becomes an incident of employment when it has persisted long enough for a reasonable employer to become aware of it, Larson & Larson, supra, § 22.03[2], at 22-8-22-9. Despite what respondents imply, the agency did not find Styberg liable for every conceivable type of sporting activity that might potentially occur on its premises merely because it put up a basketball hoop. Rather, it inferred that because Styberg affirmatively encouraged some sporting activity on its premises, this action hastened the point at which it should have discovered the employees' frequent softball games. Again, LIRC placed special emphasis on the fact that the employees had been "playing softball on the employer's premises for some time." We see nothing unreasonable in LIRC's determination that the softball games had persisted long enough for Styberg to become aware of them by the time of Hetchler's injury. Certainly one could reasonably conclude that when an employer invites some sporting activity on its premises, the employer will discover how employees are using the designated area sooner than if the employer attributed no particular significance to a part of the premises not set aside for any special, sports-related purpose.

¶ 29. Now that we have concluded that LIRC reasonably found the treatise rule satisfied in this case, the only remaining issue is whether it was reasonable for the agency to apply the treatise rule in the first instance. In order to be unreasonable, LIRC's decision must directly contravene the words of the statute or be clearly contrary to legislative intent or otherwise without rational basis. See Heritage Mut. Ins. Co. v. Larsen, 2001 WI 30, ¶ 27, 242 Wis. 2d 47, 624 N.W.2d 129. We conclude that the decision was reasonable in light of its consistency with Nigbor and the statutory language and intent.

¶ 30. As we explained in our discussion above, LIRC's decision clearly comported with Nigbor. Like using the restroom, taking a breath of fresh air or a smoke break, or engaging in a bit of horseplay with other employees, playing softball is an inconsequential way to spend a twenty-minute, paid break. Moreover, the fact that the break was paid despite the fact that the employees were not at the moment engaged in productive work supports the inference that the deviation from employment was momentary and insubstantial enough in Styberg's opinion as not to warrant requiring them to punch out. This inference is particularly understandable in light of LIRC's findings that Styberg knew or should have known that its employees were playing basketball and softball on their breaks.

¶ 31. It was also not unreasonable for LIRC to depart from YMCA. It is not crystal clear from LIRC's opinion whether it declined to follow that case because it believed Maahs overruled it or because it was not factually on point. In either case, this departure was based on reason. First, our language in Bruns Volkswagen, Inc. could fairly be read to say the Maahs decision overruled YMCA. We said, "Neither [YMCA] nor [another case] has been expressly overruled... Bruns Volkswagen, Inc., 110 Wis. 2d at 323 (emphasis added). Following a discussion of Maahs and our observation that the case was inconsistent with YMCA, we further stated, "Accordingly, we agree with DILHR that [YMCA] ... [is] no longer controlling." Bruns Volkswagen, Inc., 110 Wis. 2d at 324.

¶ 32. Second, we note an observation we made above, namely, that being on call but off duty, like the employee in YMCA, potentially indicates a deviation from employment that was not momentary or insubstantial. LIRC may have relied on a similar observation in distinguishing on-call from on-break injuries. If so, it could fairly have concluded that the factual scenario in YMCA was qualitatively different from that presented in this case. See United Wisconsin Ins. Co. v. LIRC, 229 Wis. 2d 416, 423, 600 N.W.2d 186 (Ct. App. 1999) (each worker's compensation case is governed by its own facts and circumstances; language in an opinion must .be considered in connection with the particular facts of the case).

¶ 33. We further conclude that LIRC's decision here comported both with the statutory language and purpose. Wisconsin Stat. § 102.03(l)(c) requires that "at the time of the injury, the employee is performing service growing out of and incidental to his or her employment." The treatise rule specifically addresses when on-break, on-premises recreational activity is an "incident of employment," namely, when the activity has gone on long enough for a reasonable employer to have become aware of it. See Larson & Larson, supra, § 22.03[2], at 22-8-22-9.

¶ 34. Wisconsin. Stat. § 102.03(l)(e) mandates that the injury also "arise [] out of the employee's employment." We said in Bruns Volkswagen, Inc. that all that is required to meet that standard is that the " 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose[]." Bruns Volkswagen, Inc., 110 Wis. 2d at 326 (citation omitted; emphasis added). LIRC clearly contemplated several conditions, including the fact that Styberg had erected the hoop and encouraged the employees to use it during their breaks. Certainly, nothing in LIRC's decision plainly contradicts the statutory language.

¶ 35. In addition to its consistency with the statutory language, LIRC reached a decision consistent with the purpose of the statute. The legislature intended a liberal construction of the statutory provisions. UFE Inc. v. LIRC, 201 Wis. 2d 274, 288, 548 N.W.2d 57 (1996). We find no error in the decision on the basis that it went beyond a permissibly liberal construction. It is irrelevant that the courts have not adopted the precise sections of the treatise that LIRC relied upon. Having rejected YMCA as controlling, LIRC was faced with a factual scenario of first impression. Faced with the dearth of factually comparable case law, LIRC reasonably relied upon a treatise the courts have found authoritative numerous times in the past. Indeed, LIRC discussed several cases that have adopted various parts of Professor Larson's treatise. No matter what rule LIRC adopted, it had no way of knowing for certain whether the courts would accept that rule. The best the agency could do was to make a reasoned choice, which it did.

¶ 36. In reaching its decision, LIRC was faced with a value judgment about whether the injury Hetchler sustained while engaging in sporting activity during a paid break period fell within the scope of compensable injuries covered by Wis. Stat. § 102.03. Therefore, we must accord that decision great weight deference. The decision was entirely reasonable, in that it had a rational factual basis, comported with the statutory language and purpose, and was consistent with other case law. Accordingly, we affirm the order of the circuit court upholding that decision.

By the Court. — Order affirmed.

        Schwab v. DILHR, 40 Wis. 2d 686, 692 n.4, 162 N.W.2d 548 (1968) cites, "1 Larson, Law of Workmen's Compensation, p. 375, sec. 22.30" as the source of this quoted language. We note that the language, with few minor exceptions, is identical to that in the latest version of Professor Larson's treatise. See ArthuR Laeson & Lex K. Laeson, Laeson's Workers' Compensation Law § 22.05[3] at 22-35-22-36 (2004).

       In Maahs v. Industrial Commission, 25 Wis. 2d 240, 130 N.W.2d 845 (1964), the employee had momentarily deviated from his duties to satisfy an idle curiosity.

       LIRC also factually distinguished Schwab and State Young Men's Christian Ass'n v. Industrial Commission, 235 Wis. 161, 292 N.W. 324 (1940). It observed that in YMCA the employee was on call, not on a twenty-minute paid break, and in Schwab, the injury was from off-duty, off-premises activity, namely, driving home from a supervisory social gathering to which the employee's personnel manager had invited him.

       In Marmolejo v. DILHR, 92 Wis. 2d 674, 680, 285 N.W.2d 650 (1979), the supreme court stated, "Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred ... ." (Quoted by LIRC).

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
      We review LIRC's decision, not that of the circuit court. Honthaners Rests., Inc. v. LIRC, 2000 WI App 273, ¶ 8, 240 Wis. 2d 234, 621 N.W.2d 660.

       The four conditions are as follows: (1) the legislature has charged the agency with the administration of the statute; (2) the agency's interpretation is one of long standing; (3) in reaching its interpretation of the statute, the agency employed its expertise and specialized knowledge; and (4) the agency's decision will provide for uniform and consistent application of the statute. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995).

       If we assume Bruns Volkswagen, Inc., 110 Wis. 2d 319, 328 N.W.2d 886 (Ct. App. 1982), was correct in its assumption that Maahs implicitly overruled YMCA, then YMCA was no longer good law even before we decided Bruns Volkswagen, Inc. Thus, Bruns Volkswagen, Inc. is significant not for the abrogation of the YMCA rule but for filling the void left by Maahs, i.e., determining what new rule should apply to the fact situation before the court. LIRC was faced with the same task here of deciding what new rule ought to apply in the present factual context.
      Therefore, we disagree with the respondents' statement that "if [the distinction between horseplay, curiosity, and recreational activity cases] was 'merely a convenient way to label the facts of the case' as Hetchler attempts to argue ... then there would have been no reason whatsoever for the Court of Appeals in Bruns to even address, in a published decision, the issue of whether Wisconsin should extend the adoption of the Larson treatise view on curiosity cases to horseplay cases." It is well known that each worker's compensation case is "governed by its own facts and circumstances." See United Wisconsin Ins. Co. v. LIRC, 229 Wis. 2d 416, 423, 600 N.W.2d 186 (Ct. App. 1999) (emphasis added).
      Because of this principle, "the language of an opinion must be considered in connection with the particular facts involved. Applying language pertinent to one state of facts to a different state of facts is seldom warranted." Further, "[a] quotation from an opinion in a prior case is of no value as a precedent without a review of all of the facts and circumstances there present."

        Id. (citations omitted; alteration in original). Thus, just because Bruns Volkswagen, Inc. concluded that Maahs implicitly overruled YMCA does not necessarily mean that the court was obligated to adopt the new standard the supreme court employed in Maahs. Deviating from one's duty to satisfy an idle curiosity is factually distinct from wrestling with a colleague during a lull in activity.
      Moreover, even if we assume that YMCA was not overruled but merely distinguishable on its facts, the language in United Wisconsin Insurance Co. belies the respondents' argument that
        Bruns Volkswagen, Inc. would not have merited publication without a legal distinction between curiosity, horseplay, and recreational activity cases.

       While arguably LIRC could have employed YMCA regardless of its continued validity or factual dissimilarity, we see no reason why it had to do so.


source: Caselaw Access Project

author: HOOVER, RJ.

license: Public Domain

text:
    John Kruczek and Kruczek Construction, Inc., Petitioners-Appellants-Cross-Respondents, v. Wisconsin Department of Workforce Development, Respondent-Respondent-Cross-Appellant.
    Court of Appeals

      No. 04-0090.

      Submitted on briefs September 27, 2004.

    Decided December 28, 2004.

    2005 WI App 12
    (Also reported in 692 N.W.2d 286.)

      On behalf of the petitioners-appellants-cross-respondents, the cause was submitted on the briefs of Mitchell W. Quick of Michael, Best & Friedrich, LLP of Milwaukee.
    On behalf of the respondent-respondent-cross-appellant, the cause was submitted on the briefs of William H. Ramsey, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Cane, C.J., Hoover, RJ., and Peterson, J.

       Petition to review denied 3-8-2005.

   HOOVER, RJ.

¶ 1. John Kruczek and Kruczek Construction, Inc. (collectively, Kruczek), appeal a judgment affirming the Department of Workforce Development's debarment of Kruczek from municipal and state public works projects for six months. Kruc-zek contends among other things that DWD failed to abide by certain mandatory timelines, invalidating Kruczek's debarment. The court upheld DWD's interpretation of the time frame as directory. We agree with DWD's interpretation and therefore affirm that portion of the judgment. Kruczek's additional arguments will be discussed below. DWD cross-appeals the portion of the judgment determining it could only debar Kruczek from municipal, not state, projects. We conclude the circuit court lacked jurisdiction to consider that issue, and we therefore reverse that portion of the judgment.

Background

¶ 2. Kruczek is a contractor that works primarily on municipal sewer and water projects. Municipal projects are subject to the "prevailing wage" rules of Wis. Stat. § 66.0903. On January 7,1999, a prevailing wage complaint was filed with DWD on behalf of Kruczek's former employee Justin Francken. Francken complained Kruczek had improperly paid him for three projects by paying him at the lower "flagman" rate instead of the "topman" rate and by neglecting to pay overtime. The complaint was amended on April 8,1999, to correctly identify the projects at issue.

¶ 3. According to Kruczek, it initially attempted to settle the claim. When that was unsuccessful, Kruc-zek responded to the complaint on August 6, 1999, denying any wrongdoing. Kruczek stated it correctly paid Francken at the flagman rate.

¶ 4. In January 2000, M.J. Dixon was assigned as a new investigator on the claim. On February 3, 2000, Kruczek sent information at Dixon's request. On February 23, Dixon issued preliminary findings that Kruc-zek failed to pay Francken the correct amounts, resulting in a deficiency of over $4,400.

¶ 5. On February 29, Kruczek requested an informal hearing, essentially appealing Dixon's findings. The hearing was scheduled for June 27, 2000, with Robert Anderson presiding as the examiner. During the hearing, Kruczek proposed a settlement of just under $3,800.

¶ 6. As part of the settlement, Kruczek drafted a release for Francken to sign. The release asked Francken to give up claims under various federal acts as well as the right to sue in tort or contract. DWD, by Anderson, objected to the initial draft because Francken was entitled to his wages under the statutes regardless of any other claim. Additionally, that language had not been approved at the hearing.

¶ 7. A revised release was ultimately executed on August 24, 2000. It contained an explicit denial of wrongdoing by Kruczek and a statement that the wage complaint was to be "withdrawn and dismissed with prejudice." The release was signed only by Francken. Once Francken signed the release, DWD accepted the settlement and closed the case.

¶ 8. On August 24, 2001, DWD sent Kruczek a "Notice of Proposal to Debar," signed by Anderson and based on the wage violations in Francken's complaint. Debarment is governed by Wis. Admin. Code ch. DWD 294 under rule-making authority granted by Wis. Stat. §§ 66.0903(12)(e) and 103.49(7)(e). The notice incorporated by reference the findings of investigator Dixon from the wage complaint.

¶ 9. Kruczek replied to the notice on September 17, and Anderson issued proposed findings of fact and a proposed order on October 3. On October 22, 2001, Kruczek responded to the proposed order. On February 28, 2003, DWD issued a final decision by Howard Bernstein, debarring Kruczek from bidding on state and municipal projects for six months.

¶ 10. Kruczek appealed to the circuit court, which essentially upheld DWD's final decision. However, the court agreed with Kruczek that because Francken's claim arose from an alleged violation of the prevailing wage laws for municipal, not state, projects, DWD exceeded its authority in debarring Kruczek from state projects. Kruczek appeals the part of the judgment affirming DWD, raising seven main arguments: (1) DWD took too long to issue its debarment decision under the administrative code; (2) this delay violated due process; (3) claim and issue preclusion prevent DWD's debarment action; (4) the "withdrawal" of the wage complaint left insufficient evidence on which DWD could base a debarment decision; (5) DWD did not provide an impartial decision maker; (6) DWD failed to find a major violation of the wage law; and (7) DWD failed to find Kruczek's debarment was in the public interest. DWD cross-appeals the circuit court's determination that it could not debar Kruczek from state projects.

Discussion

I. Whether the code is mandatory or directory

¶ 11. Wisconsin Admin. Code § DWD 294.05(5)(b) says that upon appeal of proposed findings of fact, the department's representative "shall issue a findings of fact and final order within 30 calendar days of the receipt of the last argument filed." Kruczek maintains that this thirty-day time frame is mandatory and the debarment is therefore invalid because it took DWD fifteen months to issue its determination. DWD maintains the time frame is directory.

¶ 12. Interpretation of an administrative rule or regulation, like statutory interpretation, is a question of law this court reviews de novo. Trott v. DHFS, 2001 WI App 68, ¶ 4, 242 Wis. 2d 397, 626 N.W.2d 48. We review the agency’s determination, not the trial court's. Id. We are not bound by the agency's legal conclusions although we generally give great weight deference to an agency's interpretation of its own rules unless it is inconsistent with the language of the regulation or clearly erroneous. Irby v. Bablitch, 170 Wis. 2d 656, 659, 489 N.W.2d 713 (Ct. App. 1992).

¶ 13. When interpreting administrative regulations, we generally use the same rules as those for statutory construction. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 904 (1998). "The general rule is that the word 'shall' is presumed mandatory when it appears in a statute." Karow v. Milwaukee Cty. Civ. Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978). When the words "shall" and "may" appear in the same section of a statute, we can infer the author was aware of the different denotations and intended the words' precise meanings. Id. at 571.

¶ 14. However, statutes specifying a time period in which an agency is to act are directory unless the statute denies the exercise of power after such time or the nature of the action or the statutory language shows the time was meant to be a limitation. State ex rel. St. Michael's Ev. Luth. Church v. DOA, 137 Wis. 2d 326, 336, 404 N.W.2d 114 (Ct. App. 1987). Ultimately, there are four factors we consider when determining whether the word "shall" is mandatory or directory. We consider: (1) the objectives to be accomplished by the statute or regulation; (2) the statute's history; (3) consequences of an alternate interpretation; and (4) whether a penalty is imposed for the violation of the time limit. State v. Perry, 181 Wis. 2d 43, 53-54, 510 N.W.2d 722 (Ct. App. 1993).

A. Code's Objective and History

¶ 15. The objective of Wis. Admin. Code ch. DWD 294 is straightforward, set out § 294.01(2):

(a) Every state agency or local governmental unit shall solicit bids from, negotiate with, award contracts to, and approve or allow subcontracts with only responsible contractors. Debarment is an appropriate means to effectuate this policy.
(b) Debarment is a serious action imposed only to protect the public interest.

Although Kruczek contends that the statutory objective is immediate prevailing wage compliance under Wis. Stat. § 66.0903(12), it points us to no language to support that interpretation against the clearly stated policy of the administrative code.

¶ 16. Wisconsin Admin. Code ch. DWD 294 was created in response to rule-making authority granted to DWD under Wis. Stat. §§ 66.0903(12) and 103)49(7). These sections require municipal (§ 66.0903) and state (§ 103.49) agencies to grant public works contracts only to contractors who abide by prevailing wage laws. The applicable statutes were created in 1985 and the administrative code was developed in 1987, although nothing in the code's history guides our interpretation.

¶ 17. While it might be preferable for DWD to act as quickly as possible in a debarment proceeding — to protect the public interest by preventing contracts from being awarded to irresponsible contractors — it is also important that DWD be convinced debarment is appropriate. That is, DWD must be convinced that a contractor has actually violated prevailing wage laws.

¶ 18. Moreover, expediency might be necessary if debarment were a permanent punishment — the sooner the case is adjudicated, the sooner an irresponsible contractor would be banned from public projects. However, the maximum period for debarment is three years. Wis. Admin. Code § DWD 294.05(7). Thus, even the most unscrupulous contractors might return to bid on public projects at some point. We therefore see no pressing need for exigency in a debarment proceeding. Protection of the public interest is effected at whatever time debarment begins. It is therefore unnecessary to construe § DWD 294.05(5)(b) as mandatory to achieve the objectives of the code.

B. Alternate Interpretations and Penalties for Noncompliance

¶ 19. When evaluating the consequences of an "alternate interpretation" we essentially compare the differences between interpreting "shall" as mandatory or directory. As such, we have said that time limits may be construed as directory if allowing something to be done after the time prescribed does not result in injury. Karow, 82 Wis. 2d at 572. Conversely, when failure to act within the prescribed time frame works to create an injury, we construe the time limit as mandatory. Id.

¶ 20. Thus, in Karow, where an employee was suspended without pay pending action by the Civil Service Commission, the supreme court interpreted the applicable time period to he mandatory because any delay in adjudication forced Karow to continue on unpaid suspension. Id. at 573. By contrast, the nursing home under investigation in St. Michael's was allowed to continue operating pending a hearing, thereby suffering no economic loss, and we construed the applicable time frame as directory. St. Michael's, 137 Wis. 2d at 337-38.

¶ 21. Here, Kruczek shows no injury resulting from the fifteen-month delay. He was not prohibited from working or bidding on projects pending the determination by DWD. Therefore, we need not construe the time frame as mandatory in order to avoid injury.

¶ 22. Finally, nothing in the administrative code suggests that DWD loses jurisdiction or competence to proceed in the event it fails to render a debarment decision in the time frame specified in the code. See id. at 336.

¶ 23. Because Kruczek suffers no harm from a directory interpretation and because nothing suggests a penalty is imposed for DWD's noncompliance, we conclude the thirty-day time limit is directory. Although a fifteen-month delay in issuing a determination is not an example of government efficiency, it is not fatal to DWD's debarment order.

II. Due Process

¶ 24. Kruczek contends the fifteen-month delay was "arbitrary, capricious, unreasonable, a violation of due process, and an abuse of [DWD's] discretion." It implies it was arbitrarily deprived of its right to engage in its business, because contractors need to plan and, arguably, will not do so with the threat of debarment hanging over them. We disagree.

¶ 25. Due process determinations are questions of law we decide de novo. State v. Sorenson, 2002 WI 78, ¶ 25, 254 Wis. 2d 54, 646 N.W.2d 354. Kruczek does not identify whether it is raising a substantive or procedural due process complaint. However, this is ultimately of no import because " '[a]bsent a mandatory requirement, administrative delay in issuing a decision is not reversible error' on due process grounds." See Seebach v. PSC, 97 Wis. 2d 712, 729, 295 N.W.2d 753 (Ct. App. 1980) (five-year delay) (citing Chicago & N.W. R.R. v. LIRC, 91 Wis. 2d 462, 480, 283 N.W.2d 603 (Ct. App. 1979)). Moreover, because Kruczek was not prohibited from working or bidding pending the debarment decision, it has failed to show any injury. Even its complaint about the need to plan is hypothetical — that some contractors will not hid on projects while a debarment decision is pending. Rruczek did not argue that it stopped bidding during the fifteen months.

III. Claim and Issue Preclusion

¶ 26. Rruczek complains DWD should be es-topped from its debarment action by application of either claim or issue preclusion. It reasons that because an alleged wage violation is the basis for the debarment proceedings and the Wis. Stat. § 109.09 wage claim was resolved, DWD cannot now use it against Rruczek. We disagree.

¶ 27. Whether a preclusion doctrine applies presents a question of law we review de novo. State v. Parrish, 2002 WI App 263, ¶ 14, 258 Wis. 2d 521, 654 N.W.2d 273. Under claim preclusion, a final judgment is conclusive in subsequent actions between the same parties or their privies involving all matters that could have been litigated in the first proceedings. Id. Thus, for claim preclusion to apply, there must be: (1) identity between the parties; (2) identity between the causes of action; and (3) a final judgment on the merits in the first action. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995).

¶ 28. Under issue preclusion, a final judgment bars relitigation of a factual or legal issue actually litigated and decided in an earlier action. Parrish, 258 Wis. 2d 521, ¶ 14. To apply issue preclusion, (1) the issue in both actions must be the same and have been actually litigated, and (2) the party against whom preclusion is asserted must have been a party, in privity with a party, or had an identity of interest with the party to the previous litigation. State v. Miller, 2004 WI App 117, ¶ 19, 274 Wis. 2d 471, 683 N.W.2d 485. If both criteria are satisfied, the court must determine whether application of issue preclusion would be fundamentally unfair, considering some or all of several factors. See Jensen v. Milwaukee Mut. Ins. Co., 204 Wis. 2d 231, 237-38, 554 N.W.2d 232 (Ct. App. 1996). We conclude neither doctrine applies because there is neither privity between the parties nor is there an identity between the causes of action.

¶ 29. A wage claim under Wis. Stat. § 109.09 involves a question of whether wages are owed to an employee, and the employee, not DWD, is the complainant. While DWD is authorized to investigate a claim, attempt to adjust the wage claim, commence an action in the circuit court, or refer the case to a district attorney, these actions are all on behalf of the employee. See Wis. Stat. § 109.09(1). Indeed, an aggrieved employee need not even ask DWD to resolve the wage dispute — the employee can bring his or her own claim in circuit court. See Wis. Stat. § 109.03(5). DWD has no interest in the outcome of a wage claim except to the extent it has been charged by the legislature to investigate and attempt to settle claims; it receives no payment from a wage settlement beyond costs. See Wis. Stat. § 109.03(6). The objective of a § 109.09 wage claim is to pay an employee the full wages he or she has earned and is owed. The only penalties specified in Wis. Stat. § 109.11 are monetary damages. Ultimately if there is no settlement, the circuit court — not DWD— will adjudicate the dispute. See Wis. Stat. § 109.11(l)(c).

¶ 30. Under Wis. Admin. Code § DWD 294.05 debarment actions, DWD is a complainant in its own right, enforcing its rules as directed by the legislature. The objective under the administrative code is to prevent contractors who violate Wis. Stat. § 66.0903 from working for municipal government entities. Section DWD 294.05 is used against public works contractors; a wage claim under Wis. Stat. § 109.09 can be against any type of employer. An aggrieved employee with a wage claim has absolutely no interest in the outcome of a debarment proceeding; he or she gains nothing and the debarment is not ordered to benefit the employee. While an aggrieved employee who made a wage claim might come into play as a witness in a debarment proceeding, he or she is not a party to the action. DWD is authorized to make the debarment determination, not the circuit court. Wis. Admin. Code § DWD 294.05.

¶ 31. Because of different objectives between a wage claim and debarment, we conclude that there is no identity between causes of action. Because the interests of an aggrieved employee and DWD differ in both types of actions, we further conclude there is no privity between the parties — DWD and Francken — to the wage claim on the one hand and the debarment proceeding on the other.

I\£ Sufficiency of the Evidence

¶ 32. Kruczek argues that the wage claim was supposed to be "withdrawn and dismissed" under Francken's release, and DWD accepted this settlement. Thus, Kruczek argues the record of any findings from that proceeding were eliminated and could not be used in the debarment proceedings. It contends the record "was, in essence, expunged by the withdrawal and dismissal of the wage complaint under the terms of the Release." We know of no law, and Kruczek cites none, that provides the facts constituting the record evaporate once a claim is settled or withdrawn. We need not consider arguments unsupported by reference to legal authority. State v. Shaffer, 96 Wis. 2d 531, 545-46 n.3, 292 N.W.2d 370 (Ct. App. 1980).

¶ 33. Further, there is no indication DWD intended to make the release binding on itself. Rather, its "acceptance" letter suggests that it considered Kruczek's settlement to fully compensate Francken, thereby absolving DWD of any further need to investigate the wage claim or to refer the case to the district attorney for further action. See Wis. Stat. § 109.11(l)(a). In other words, it "accepted" a satisfactory action by the employer to make the employee whole. It did not bind itself to specific terms of a settlement or release. Kruczek was allowed by the release to maintain that it committed no wage violation, but the record of the dispute and its settlement remain.

V Impartial Decision Maker

¶ 34. Kruczek complains it was denied the right to an impartial decision maker because Robert Anderson, who investigated the wage complaint, also issued the notice of the proposal to debar Kruczek and the proposed findings of fact. Kruczek also complains Anderson acted as Francken's attorney by insisting on changes to the proposed release.

¶ 35. Kruczek is indeed entitled to a fair hearing by an unbiased decision maker. See Withrow v. Larkin, 421 U.S. 35, 46-47 (1975). However, the

contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that... conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

Id. at 47. Moreover, the Supreme Court noted it could "find no warrant for imposing upon administrative agencies a stiffer rule, whereby examiners would be disentitled to sit because they ruled strongly against a party in the first hearing." Id. at 49.

¶ 36. While Anderson did participate in some fact-finding for the wage claim, Kruczek neglects in its argument to mention that Dixon completed the initial investigation. Moreover, although Anderson issued the debarment notice and prepared the proposed findings of fact and the order, it was Bernstein who issued the final debarment decision, modifying Anderson's proposed order and factual findings. We are therefore unconvinced that Anderson's participation in both the wage claim and debarment proceedings was constitutionally impermissible.

VI. Department Error

¶ 37. Under Wis. Stat. § 66.0903(12)(c), debarment does not apply to a contractor "who in good faith commits a minor violation" of the section. Kruczek argues DWD erred in its debarment because it never found, and there is no evidence of, a bad faith major violation. Kruczek, however, is simply taking issue with DWD's inferences from the facts.

¶ 38. An agency's factual findings will not be overturned if supported by substantial evidence in the record. Wis. Stat. § 227.57(6); Hutson v. State Pers. Comm'n, 2003 WI 97, ¶ 29, 263 Wis. 2d 612, 665 N.W.2d 212. Weight and credibility are for the agency to determine, not this court. See Wis. Stat. § 227.57(6). When more than one reasonable inference can be drawn, the agency's finding is conclusive. VTAE Dist. 13 v. ILHR Dept., 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977).

¶ 39. Anderson, preparing the proposed findings, noted that Francken worked for Kruczek for four months and was underpaid by almost $4,000, or $1,000 per month. Anderson did not believe that Francken's "accidental" classification as a flagman instead of a topman was an innocent mistake, considering the time records indicated on their face that Franken was a topman and because Kruczek has worked on prevailing wage rate projects since 1995.

¶ 40. Bernstein made similar determinations in the final order. He noted that Franken was substantially underpaid, was not paid overtime in a week when Francken worked more than ten hours per day, was not paid within thirty-one days, and was not issued a pay statement when given his check. Bernstein believed "[I]t is highly unlikely [Kruczek] mistakenly considered a top man like Mr. Franken [sic] a flag person . . . highly unlikely they mistakenly forgot to pay him his overtime, to give him a pay statement with his pay or to pay him within 31 days." DWD is not required to make an explicit finding on the magnitude of the violation. Its inference that the multiple errors demonstrated bad faith errors of a major magnitude is reasonable and supported by the record. We defer to it.

VII. Public Interest

¶ 41. Wisconsin Admin. Code § DWD 294.05(l)(a) notes that debarment is done for the public interest. Kruczek complains DWD erred by debarring it because there is no evidence to support a finding that its debarment is in the public interest.

¶ ,42. In the first place, Kruczek fails to show that DWD is required to make such a finding. Moreover, DWD has succinctly explained in its brief why debarment for violating the wage rules is in the public interest:

the purpose of the prevailing wage laws is "to stimulate and protect the economic position of individual workers whose jobs are in execution of... [public works projects.]". . .[] That interest is clearly harmed when a contractor intentionally underpays even one worker with conscious disregard of the law. Further, taxpayers expect that their money will be used for what it was intended to be used for... . [That is,] to pay the wages provided for in the contracts, not skimmed off the top by underpaying contractors. Third, there is no way of knowing whether other contractors bidding for the contracts at issue might have won those contracts if Kruczek costed them to include the proper wages. A level playing field in public works bidding is clearly an additional public interest that is served by debarring those who consciously ignore the law.

We agree with DWD's argument and reject Kruczek's complaint.

VIII. Cross-Appeal

¶ 43. At the time of the underlying wage violation, Kruczek was working on a municipal project and the prevailing wage requirements would have therefore been governed by the municipal project regulations in Wis. Stat. § 66.0903, not the state project regulations under Wis. Stat. § 103.49. For that reason, Kruczek contends it was error for DWD to debar it from both municipal and state projects. The circuit court agreed the debarment was too broad and reversed the debarment from state projects. DWD cross-appeals.

¶ 44. DWD contends that Wis. Admin. Code ch. DWD 294 is a response to both Wis. Stat. §§ 66.0903 and 103.49. Indeed, the code encompasses both statutes, defining debarment as an action taken "to exclude a contractor from performing work.. . for any state agency or local government," Wis. Admin. Code § DWD 294.02(5), and providing that "no state agency or local governmental unit may . .. [hire] a debarred contractor." Wis. Admin. Code § DWD 294.04(1).

¶ 45. Kruczek contends, however, that it is not challenging Wis. Admin. Code ch. DWD 294, only the power of DWD to debar it from state projects based on a violation of Wis. Stat. § 66.0903. Kruczek fails to appreciate that DWD has no enforcement power under § 66.0903 and instead was instructed by the legislature to create administrative rules for the statute's enforcement. This resulted in ch. DWD 294. That chapter essentially provides that regardless which statutory violation results in debarment of a contractor, neither a state agency nor a local governmental unit can hire that contractor.

¶ 46. By necessity, Kruczek is challenging Wis. Admin. Code ch. DWD 294 but has failed to follow Wis. Stat. ch. 227 procedures for challenging the validity of a rule. Kruczek failed to serve the joint committee for review of administrative rules in accordance with Wis. Stat. § 227.40(5). Failure to serve the committee deprives the court of jurisdiction to hear a challenge to the rule. Richards v. Young, 150 Wis. 2d 549, 558, 441 N.W.2d 742 (1989). The portion of the judgment holding DWD could not bar Kruczek from state projects is accordingly reversed.

By the Court. — Judgment affirmed in part; reversed in part. No costs to either party.

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

       DWD states, and Kruczek does not dispute, that the claim was processed as a Wis. Stat. § 109.09 wage claim.

       There are lower levels of deference. We give due weight consideration when an agency determination is" 'very nearly' one of first impression." See Sauk County v. WERC, 165 Wis. 2d 406, 413-14, 477 N.W.2d 267 (1991) (citation omitted). We give no weight, reviewing the interpretation entirely de novo, when the agency has no special experience determining an issue or it is completely a question of first impression. See id. at 414. Contrary to Kruczek's assertion, however, the question of first impression in this set of standards refers to the agency's opportunity to interpret and apply its regulations, not to the courts' opportunity to judicially review the agency's actions. For this reason, we reject Kruczek's suggestion to apply a de novo standard of review. Interpretation of Wis. Admin. Code § DWD 294.05 may be a question of first impression for the courts, but Kruczek provides no evidence to show it was a question of first impression for DWD.

       Both Wis. Stat. §§ 66.0903(12) and 103.49(7) are subsections regarding debarment. Section 66.0903(12)(e) says "The department shall promulgate rules to administer this subsection." The language of § 103.49(7)(e) is identical.

       Even after the debarment, Rruczek would have been allowed to complete projects on which it had begun bidding or working prior to the debarment decision.

       We also question whether the settlement of the wage claim in this case constitutes a valid, final judgment. While a settlement may so operate, the case on which Kruczek relies was one in which the settlement was approved by the court. See Great Lakes Trucking Co. v. Black, 165 Wis. 2d 162, 168, 477 N.W.2d 65 (Ct. App. 1991). Moreover, as DWD points out, it has no adjudicatory powers under the wage claim statute, Wis. Stat. § 109.09(1). However, we need not resolve this issue because application of either doctrine fails on other grounds.

       Or state entities under Wis. Stat. § 103.49.

       To the extent Kruczek complains about Anderson's changes to its proposed release, we disagree he did so as Francken's advocate. DWD's authority in a wage claim extends solely to investigating how much the employee is lawfully owed. Kruczek wanted to limit other remedies Francken might have had. It was not inappropriate for DWD to have considered those limitations beyond the scope of a wage claim.

       DWD misquotes Green v. Jones, 23 Wis. 2d 551, 559, 128 N.W.2d 1 (1964). However, the actual language applies equally. "[T]he legislature intended to generally stimulate economic activity by increasing and reinforcing the purchasing power of individual workers who performed tasks in execution of the highway improvement [public works projects]."


author: FINE, J.

text:
    Paul McGee and Barbara McGee, Plaintiffs, Cincinnati Insurance Company, Intervening Plaintiff, v. Carlos R. Bates, Defendant, Reliance in Liquidation and Wisconsin Insurance Security Fund, Subrogated Parties. Philadelphia Indemnity Insurance Company, Plaintiff-Appellant, v. Cincinnati Insurance Company, Defendant-Respondent.

    Court of Appeals

      No. 04-0824.

      Submitted on briefs December 7, 2004.

    Decided December 28, 2004.

    2005 WI App 19
    (Also reported in 691 N.W.2d 920.)

      On behalf of the plaintiff-appellant Philadelphia Indemnity Insurance Company, the cause was submitted on the briefs of Todd A. Becker and David P. Renovitch of Coyne, Niess, Schultz, Becker & Bauer, S.C., of Madison.
    On behalf of the defendant-respondent Cincinnati Insurance Company, the cause was submitted on the brief of Michael S. Murray of Kasdorf, Lewis & Swiet-lik, S.C., of Milwaukee.
    Before Fine, Curley and Kessler, JJ.

       Petition to review granted 3-8-2005.

   FINE, J.

¶ 1. Philadelphia Indemnity Insurance Company appeals from a summary judgment dismissing its complaint against Cincinnati Insurance Company. Philadelphia Indemnity sought reimbursement of all or some of what it paid to settle claims of passengers injured when the driver of a van leased by Philadelphia Indemnity's insured, SIVA Truck Leasing, Inc., to the driver's employer ran the van into a barrier on an interstate highway. Cincinnati Insurance insured the driver's employer, Milwaukee Careers Cooperative. The trial court held that Philadelphia Indemnity could not recover under any of Philadelphia Indemnity's subrogation/contribution theories because Philadelphia Indemnity and SIVA had defaulted in an action brought against them by the injured passengers. We reverse.

I.

¶ 2. SIVA Truck Leasing leased a multi-passenger van to Milwaukee Careers Cooperative for the latter's use in its business of taking people to their jobs. This appeal concerns the action filed by four of the injured passengers. Their lawsuit originally named Milwaukee Careers Cooperative, its insurer Cincinnati Insurance, the van's driver, Carlos Bates, and another Milwaukee Careers Cooperative insurance carrier that is not a party to this appeal. Some four months later, the passengers added SIVA Truck Leasing and Philadelphia Indemnity as defendants, alleging that by insuring SIVA Truck Leasing, Philadelphia Indemnity undertook to pay damages that might have been caused by the negligence of anyone who drove SIVA's van with SIVA's consent, and that this included Bates. Neither SIVA Truck Leasing nor Philadelphia Indemnity answered this complaint timely, and default judgment was entered against them. The validity of this default judgment is not an issue on this appeal. The plaintiffs dismissed with prejudice and by stipulation the defendants Cincinnati Insurance, Milwaukee Careers Cooperative, and Bates.

¶ 3. After default judgment was entered against them, SIVA Truck Leasing and Philadelphia Indemnity settled with the passenger/plaintiffs for more than $500,000, and then, as noted, Philadelphia Indemnity brought this action seeking reimbursement from Cincinnati Insurance, whose insurance policy covered Bates, the Milwaukee Careers Cooperative van driver. Philadelphia Indemnity's complaint against Cincinnati Insurance set out a map for relief with many roads: Wis. Stat. ch. 113, the Uniform Joint Obligations Act; common-law contribution; equitable subrogation; and indemnification based on a clause in the lease contract between SIVA Truck Leasing and Milwaukee Careers Cooperative. As we have seen, the trial court held that none of these routes were available to Philadelphia Indemnity because Philadelphia Indemnity had defaulted.

II.

¶ 4. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). In assessing whether summary judgment is appropriate, we first determine whether the complaint states a claim, and, if so, whether there are any genuine issues of material fact for trial. Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580, 582-583 (Ct. App. 1983). Summary judgment is not appropriate if the complaint states a claim and there are genuine issues for trial. Wis. Stat. Rule 802.08(2).

¶ 5. It is paradigm in our law that persons who are liable to another should, if possible, pay only their fair share of that liability, and, variously, the mechanism to ensure this can be "subrogation," General Accident Insurance Co. of America v. Schoendorf & Sorgi, 202 Wis. 2d 98, 107, 549 N.W.2d 429, 433 (1996), "contribution," State Farm Mutual Automobile Insurance Co. v. Schara, 56 Wis. 2d 262, 266, 201 N.W.2d 758, 760 (1972), or "indemnification," Teacher Retirement System of Texas v. Badger XVI Ltd. Partnership, 205 Wis. 2d 532, 546-547, 556 N.W.2d 415, 421 (Ct. App. 1996). As Philadelphia Indemnity recognized by its alternative-claims complaint against Cincinnati Insurance, these are different paths to the same destination. For simplicity, we focus on "contribution," which, as we explain, is dispositive. Accordingly, we do not discuss Philadelphia Indemnity's alternative contentions. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

¶ 6. "When no express agreement confers a right of contribution, a party's right to seek contribution against another is premised on two conditions: (1) the parties must be liable for the same obligation; and (2) the party seeking contribution must have paid more than a fair share of the obligation." Kafka v. Pope, 194 Wis. 2d 234, 242-243, 533 N.W.2d 491, 494 (1995). Although, as Cincinnati Insurance points out, some of the cases add that the parties be "joint tortfeasors," see Fire Insurance Exchange v. Cincinnati Insurance Co., 2000 WI App 82, ¶ 8, 234 Wis. 2d 314, 321-322, 610 N.W.2d 98, 103, Cincinnati Insurance's contention, adopted by the trial court, that Philadelphia Indemnity and Cincinnati Insurance are not "joint tortfeasors" and that thus Philadelphia Indemnity has no viable claim for contribution, is without merit. Insurance companies stand in the shoes of their insureds, Estate of Capistrant v. Froedtert Memorial Lutheran Hospital, Inc., 2003 WI App 213, ¶ 8, 267 Wis. 2d 455, 462-463, 671 N.W.2d 400, 403, and, for the purposes of the summary-judgment record, Bates is the "insured" of both Philadelphia Indemnity and Cincinnati Insurance, and their liability, if any, is based on what he did. Stated another way, there is only one alleged tortfeasor from whom flows the insurance companies' potential liability to those passengers who settled with Philadelphia Indemnity. Accordingly, only the two Kafka factors are material here.

¶ 7. Further, neither the plaintiffs' dismissal of Cincinnati Insurance, nor Philadelphia Indemnity's settlement with the plaintiffs stands in the way of Philadelphia Indemnity's claim for contribution. As Fire Insurance Exchange recognizes, contribution "can also be based on a settlement of what is contended to be joint liability, with the settling party being required to prove that: (1) both parties were obligated to the payee; (2) the amount of the payment was reasonable; and (3) the proportionate fault with negligent tortfea-sors, or other apportionment method when negligence is not the basis for mutual liability [sic]." Id., 2000 WI App 82, ¶ 8, 234 Wis. 2d at 322, 610 N.W.2d at 103; see also Teacher Ret. Sys., 205 Wis. 2d at 545, 556 N.W.2d at 420 ("whether 'common liability' exists is determined at the time the damages were sustained and cannot be extinguished by one or more of those allegedly responsible for the plaintiffs damages subsequently settling with the plaintiff'). Here, of course, Bates's alleged negligence is "the basis for mutual liability" asserted by Philadelphia Indemnity, and thus the third Fire Insurance Exchange element does not apply.

¶ 8. We now turn to the Kafka criteria. Both are satisfied here.

A. Liability for same obligation.

¶ 9. Philadelphia Indemnity's liability for the injuries suffered by Bates's passengers was based on Bates's alleged negligence, which Philadelphia Indemnity cannot contest because it defaulted. As we have seen, Cincinnati Insurance also provided coverage for Bates's alleged negligence. Thus, as noted, the liability of both insurance companies stems from the same obligation — insurance coverage for Bates's alleged negligence. Philadelphia Indemnity's liability-by-default does not change the calculus. A claim for contribution "is unaffected by the underlying transaction," Schara, 56 Wis. 2d at 267, 201 N.W.2d at 760 (contribution claim timely even though statute of limitations for underlying tort expired), and the requisite commonality of liability "is determined at the time the damages were sustained," Teacher Retirement System, 205 Wis. 2d at 545, 556 N.W.2d at 420. It is thus immaterial that Philadelphia Indemnity's settlement was spurred by the default rather than an active lawsuit against it; if it paid more than its fair share for damages caused by Bates's alleged negligence, it is entitled to recompense from Cincinnati Insurance if Cincinnati Insurance paid less than its fair share of the damages caused by Bates's alleged negligence.

B. Unequal payment.

¶ 10. Whether Philadelphia Indemnity's payment of more than $500,000 to settle the passengers' claims was more than its fair share depends on whether Bates was negligent so as to trigger Cincinnati Insurance's liability to the plaintiffs for his negligence. As we have seen, Philadelphia Indemnity's default determined that Bates was negligent insofar as its liability to the passengers was concerned. The record is not clear whether Bates's negligence has also been determined in an action that might affect Cincinnati Insurance's liability. See Jensen v. Milwaukee Mut. Ins. Co., 204 Wis. 2d 231, 235, 554 N.W.2d 232, 233-234 (Ct. App. 1996) (discussing who is bound under the related doctrines of claim preclusion and issue preclusion). If it has been determined, the apportionment appears to be fairly simple —Cincinnati Insurance's liability turns on whether and to what extent Bates was negligent. If Bates's negligence has not been determined in such an action, there must be a trial on that issue.

¶ 11. We reverse the judgment and remand for further proceedings to give Philadelphia Indemnity the chance to prove, if it can, that Bates was negligent, that what it paid in settlement was reasonable, and that it bore more than its fair share of Bates's responsibility for the plaintiffs' injuries. See Fire Ins. Exch., 2000 WI App 82, ¶ 8, 234 Wis. 2d at 322, 610 N.W.2d at 103.

By the Court. — Judgment reversed and cause remanded.

       The recognition by State Farm Mutual Automobile Insurance Co. v. Schara, 56 Wis. 2d 262, 267, 201 N.W.2d 758, 760 (1972), that a claim "for contribution is unaffected by the underlying transaction" was in the face of its concern that the resulting six-year "lengthy period within which to bring suit" for contribution in tort actions did not "serve[] the public interest." Id., 56 Wis. 2d at 268, 201 N.W.2d at 761. Accordingly, Schara suggested that the legislature require "that actions for contribution based on tort be brought within one year of the accrúal of the cause of action." Ibid. The legislature apparently followed that suggestion. See Wis. Stat. § 893.92 ("An action for contribution based on tort, if the right of contribution does not arise out of a prior judgment allocating the comparative negligence between the parties, shall be commenced within one year after the cause of action accrues or be barred.") (created by 1977 Wis. Laws, ch. 180).


author: ANDERSON, PJ.

text:
    Roger W. Alswager, Plaintiff-Appellant, v. Roundy's Inc. and Gerald F. Lestina, Individually and as agent for Roundy's Inc., Defendants-Respondents.
    Court of Appeals

      No. 03-2274.

      Submitted on briefs November 10, 2004.

    Decided December 29, 2004.

    2005 WI App 3
    (Also reported in 692 N.W.2d 333.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Roger W. Alswager, pro se.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Gary A. Marsack, James R. Scott and Oyvind Wistrom of Lindner & Marsack, S.C., Milwaukee.
    Before Anderson, PJ., Brown and Nettesheim, JJ.
   ANDERSON, PJ.

¶ 1. Roger W. Alswager appeals from an order awarding Roundy's Inc. taxable costs in the amount of $5625.35 and a protective order prohibiting him from communicating with any person regarding the substance of his lawsuit against Roundy's, the circumstances surrounding his employment and/or termination from Roundy's and his opinions relative to the management of Roundy's. He argues that the trial court erred in awarding costs to Roundy's for "exploded trial exhibits" and the "transcription of discovery materials on disk." He further maintains that the trial court erred in issuing, and later failing to vacate, the protective order.

¶ 2. We hold that Roundy's is not entitled to costs for the "transcription of materials on disk" because such costs are not specifically authorized by Wis. Stat. § 814.04(2) (2001-02), but we decline to address the questions concerning the costs associated with the "exploded trial exhibits" because Alswager has inadequately briefed the issue. We also hold that even if the trial court did err in issuing the protective order or in failing to vacate the order, such error was harmless and that, in any event, the order expires upon its own weight once this case is remitted back to the trial court.

BACKGROUND

¶ 3. In March 2001, Roundy's terminated Alswa-ger, an employee of Roundy's for over twenty-five years. In June 2001, Alswager commenced the lawsuit underlying his appeal. In his complaint, he advanced several legal theories, all of which related to the events surrounding his termination. In June 2002, the trial court granted summary judgment in favor of Roundy's on three of Alswager's claims, but permitted the fourth claim, defamation, to proceed.

¶ 4. In late December 2002, Roundy's filed a motion for sanctions, alleging that Alswager had

harassed and otherwise sought to influence potential witnesses and parties to the above-captioned action by directly contacting them, as well as their relatives, neighbors, business associates, and social acquaintances, making statements suggesting that Defendants' participation in and/or defense of this litigation has been unethical, immoral, improper, or otherwise of a socially unacceptable nature, and thus embarrassed the witness or party who was the subject of such communication.

Following briefing and a hearing, the trial court granted the motion and issued a protective order against Alswa-ger. The order, filed February 25, 2003, stated:

It is hereby Ordered that Plaintiff, Roger Alswager, shall not communicate in any manner with any person regarding the substance of the lawsuit; the circumstances surrounding the Plaintiffs termination from employment, or any opinions Plaintiff has relative to the management of Roundy's, Inc. The Order does not extend to communications with counsel for Plaintiff or Defendants, state agencies, nor any web site Plaintiff may operate.

Motions to vacate the order were subsequently denied by the court. In denying the motion on February 11, 2004, the court stated that the order remains in place "[ujntil the appeal has run its course."

¶ 5. After a short trial on the defamation claim, the jury found against Alswager on April 9, 2003. On May 29, 2003, Roundy's filed a Bill of Costs seeking the taxation of costs incurred in the defense of the action. Roundy's sought taxable costs for "exploded trial exhibits including] three 2' X 3' expanded exhibits used during the trial of Plaintiffs defamation suit" and for the transcription from cd-rom of hours of conversations Alswager had secretly recorded during his tenure with Roundy's. Alswager filed an objection to the Bill of Costs. After Roundy's revised its original Bill of Costs, Adswager renewed his objections, arguing as he does on appeal, that the "transcription of discovery materials on disk" and the "exploded trial exhibit[s]" were not permissible taxable costs pursuant to Kleinke v. Farmer's Coop. Supply & Shipping, 202 Wis. 2d 138, 549 N.W.2d 714 (1996).

¶ 6. Costs were initially taxed by the Clerk of Courts in the amount of $5625.35. At a hearing at which it considered Alswager's objections to the costs, the trial court ordered Alswager to file a motion to review the taxation of costs. On July 9, the trial court filed a judgment dated simply "23rd, 2003" in which it awarded Roundy's costs equaling the amount assessed by the Clerk of Courts. On July 11, Alswager filed a motion to review the taxation of costs and the motion hearing was set for August 28. On August 25, concerned that he would not be able to file an appeal within the statutory time limits if he waited until after the trial court issued a decision on August 28, Alswager filed a notice of appeal. The notice of appeal stated that Alswager was appealing from the February 25, 2003 protective order, the order entered on July 9 and "costs and fees if awarded by the circuit court at a hearing to be held on August 28, 2003."

¶ 7. At the August 28 motion hearing, the trial court acknowledged that a notice of appeal had been filed, but proceeded to rule on the issue of costs and fees given the circumstances. The court denied Alswager's motion to review the taxation of costs, but did allow a reduction of $84.97 in the costs, which Roundy's conceded was improperly taxed. In a written order filed September 11, 2003, the trial court amended the judgment to reflect the reduction in costs, awarding Roundy's $5540.38. Alswager now appeals.

TAXABLE COSTS

¶ 8. As noted at the outset, Alswager challenges the trial court's award of costs on two grounds. We address each cost in turn. First, relying on our supreme court's decision in Kleinke, Alswager maintains that the trial court lacked the statutory authority to award costs for the "transcription of discovery materials" because Roundy's simply decided to have the conversations provided on cd-rom transcribed for its own convenience. Roundy's counters that the transcripts of discovery material provided on disk were "necessary disbursements" within the scope of Wis. Stat. § 814.04(2) and were properly allowed by the trial court in its discretion pursuant to § 814.04(2) and Wis. Stat. § 814.036.

¶ 9. A trial court may, in its discretion, determine that the requested item of cost was a "necessary" disbursement and grant a party costs on that basis. See DeWitt Ross & Stevens, S.C. v. Galaxy Gaming and Racing Ltd. P'ship, 2004 WI 92, ¶ 54, 273 Wis. 2d 577, 682 N.W.2d 839. We will uphold the trial court's exercise of discretion, so long as it examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, arrived at a conclusion that a reasonable judge could reach. Id.

¶ 10. In State v. Foster, 100 Wis. 2d 103, 106, 301 N.W.2d 192 (1981), our supreme court stated:

The terms "allowable costs" or "taxable costs" have a special meaning in the context of litigation. The right to recover costs is not synonymous with the right to recover the expense of litigation. This right is statutory in nature, and to the extent that a statute does not authorize the recovery of specific costs, they are not recoverable. Many expenses of litigation are not allowable or taxable costs even though they are costs of litigation. (Citations omitted.)

Therefore, any award of a "cost" which is not specifically authorized by a Wisconsin statute constitutes an error of law that must be reversed. Kleinke, 202 Wis. 2d at 146-47.

¶ 11. The authority of the trial court to tax costs to the prevailing party is governed by Wis. Stat. § 814.04. Section 814.04 provides, in pertinent part, that when allowed costs shall be as follows:

(2) DISBURSEMENTS. All the necessary disbursements and fees allowed by law; the compensation of referees; a reasonable disbursement for the service of process or other papers in an action when the same are served by a person authorized by law other than an officer, but the item may not exceed the authorized sheriffs fee for the same service; amounts actually paid out for certified copies of papers and records in any public office; postage, telegraphing, telephoning and express; depositions including copies; plats and photographs, not exceeding $50 for each item; an expert witness fee not exceeding $100 for each expert who testifies, exclusive of the standard witness fee and mileage which shall also be taxed for each expert; and in actions relating to or affecting the title to lands, the cost of procuring an abstract of title to the lands. Guardian ad litem fees shall not be taxed as a cost or disbursement.

Furthermore, pursuant to Wis. Stat. § 814.036, the omnibus costs provision, "If a situation arises in which the allowance of costs is not covered by ss. 814.01 to 814.035, the allowance shall be in the discretion of the court."

¶ 12. In Kleinke, our supreme court addressed the question of what costs may be taxed when Wis. Stat. § 814.04(2) or Wis. Stat. § 814.036 are relied upon. The court rejected our statutory interpretation in Zintek v. Perchik, 163 Wis. 2d 439, 476-77, 471 N.W.2d 522 (Ct. App. 1991), overruled on other grounds, Steinberg v. Jensen, 194 Wis. 2d 439, 534 N.W.2d 361 (1995), whereby we read § 814.04(2) together with § 814.036 and concluded that they grant the trial court complete discretion regarding what costs may be taxed against a party. Kleinke, 202 Wis. 2d at 148-49. It was in this context that the Kleinke court made the statement relied upon by Alswager;

The omnibus costs provision, therefore, only gives the court discretion as to when it may allow costs, not as to what costs may be allowed. Neither the omnibus cost provision nor the catch-all provision in Wis. Stat. § 814.02 grants the trial court the power to allow costs which are not explicitly authorized by statute.

Kleinke, 202 Wis. 2d at 149.

¶ 13. We interpret the Kleinke court's holding to mean that the omnibus statute grants no substantive rights to recover costs not listed as recoverable elsewhere in the costs statutes; it simply sets the times and circumstances when such costs are recoverable. This holding is confusing and we are concerned that it has the effect of emasculating the omnibus cost provision and urge the supreme court to revisit Kleinke. However, we are bound by the court's decision and apply it to the matter at hand. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

¶ 14. Consideration of Kleinke and its teachings on Wis. Stat. §§ 814.04 and 814.036 convinces us that the trial court erred in awarding Roundy's costs for the transcription of the secretly recorded conversations. As explained, Kleinke instructs that the trial court's discretion is limited to "when" the court may allow costs and not "what" costs are allowed. Kleinke, 202 Wis. 2d at 149. Section 814.04(2) authorizes imposition of costs for "[a]ll the necessary disbursements . .. allowed by law." Here, the record demonstrates that Roundy's was provided with the surreptitiously recorded conversations as audio files — a perfectly useable format. Roundy’s obtained the transcripts of the secretly recorded conversations merely for its own convenience; the record demonstrates that Roundy's simply thought that it could find the relevant material quicker. It has long been the law that costs may not be allowed for such reasons. Wisconsin Sulphite Fibre Co. v. D.K. Jeffris Lumber Co., 132 Wis. 1, 36, 111 N.W. 237 (1907) (transcripts obtained solely for the convenience of counsel are not taxable costs). Accordingly, we hold that the trial court erred in awarding Roundy's costs for the transcription of the cd-roms.

¶ 15. We now turn to the question of the "exploded trial exhibits." The parties dispute whether these trial exhibits constitute photographs or photocopies. See Wis. Stat. § 814.04(2) (permitting costs for photographs); Kleinke, 202 Wis. 2d at 148 (upholding Ramsey v. Ellis, 163 Wis. 2d 378, 386, 471 N.W.2d 289 (Ct. App. 1991), in which we held that photocopies could not be taxed as photographs)). However, neither party directs us to examples in the record of these exhibits and it is impossible for us to render a determination as to whether the costs for all the exhibits are allowable under the pertinent statutes without knowing how to characterize the exhibits. In particular, we do not know if the mechanism employed in "blowing up" one exhibit included making a photo of the exhibit or whether the blowing up process was straight photocopying. Wisconsin Stat. Rule 809.19(l)(e) requires parties' briefs to contain "citations to the ... parts of the record relied on," and we have held that where a party fails to comply with the rule, "this court will refuse to consider such an argument.... [I]t is not the duty of this court to sift and glean the record in extenso to find facts which will support an [argument]." Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990) (citation omitted). Alswager, as the party objecting to the taxable costs, has not met the condition precedent necessary to pursue this appeal and has not adequately developed or supported his arguments. We therefore affirm the trial court on this issue.

PROTECTIVE ORDER

¶ 16. Alswager challenges the protective order essentially on the following grounds: (1) that the protective order was tantamount to a temporary restraining order or an injunction and he was entitled to, but not afforded, due process protections as a result; (2) that the protective order was unnecessarily overbroad; and (3) that the order violates his First Amendment rights. We need not address the substance of his claims for two reasons.

¶ 17. First, even if Alswager is correct that the trial court somehow erred in issuing the protective order or in failing to vacate the order at a later date, such error was harmless. An error is harmless if there is no reasonable possibility that it contributed to the result reached at trial. State v. Patricia A.M., 176 Wis. 2d 542, 556, 500 N.W.2d 289 (1993). Alswager has failed to demonstrate how the protective order has had a negative impact upon the judgment against him or his ability to further prosecute his claims.

¶ 18. Second, as noted by Roundy's and the trial court, once this case is remitted to the trial court, there is no further need for the protective order and it will expire upon its own weight. Therefore, the questions Alswager raises concerning the protective order are moot. We do warn Alswager, however, that once the protective order has expired, he does not have free reign to harass or defame the individuals associated with his claim against Roundy's. Wisconsin has both criminal and civil harassment statutes, see Wis. Stat. §§ 813.125 and 947.013, and his First Amendment rights to free speech do not include the right to defame a private individual. See State v. Douglas D., 2001 WI 47, ¶ 17, 243 Wis. 2d 204, 626 N.W.2d 725 (right to free speech does not include libel and defamatory speech).

CONCLUSION

¶ 19. In sum, we reverse the trial court's award of costs for the "transcription of materials on disk" because the trial court lacked the authority to award such costs. We decline to address the parties' arguments concerning the "exploded trial exhibits" because the issue has been inadequately briefed. Finally, we affirm the trial court's protective order, but hold that it expires upon its own weight when this case is remitted to the trial court.

By the Court. — Order affirmed in part and reversed in part; order affirmed.

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

       We acknowledge that Wis. Stat. § 814.04 was recently amended and now specifically references photocopying. See 2003 Wis. Act 138, § 13. However, the amended version was not enacted until after the trial court issued its order pertaining to the costs and, therefore, does not apply.

       We do note that this court has carefully reviewed the record and has not been able to locate all the exhibits that are the subject of the appeal. The Kinko's receipts found in the record do not sufficiently describe the exhibits for our purposes.