author: ANDERSON, J.

text:
    Robert Kopfhamer and Margaret Kopfhamer, Plaintiffs-Respondents-Cross-Appellants, v. Madison Gas and Electric Company, Defendant-Cross-Respondent, Wisconsin Power and Light Company, ABC Company and DEF Insurance Company, Defendants, Wisconsin Public Service Corporation, Defendant-Appellant-Cross-Respondent.
    Court of Appeals

      No. 01-1384.

      Submitted on briefs August 8, 2002.

    Decided October 2, 2002.

    2002 WI App 266
    (Also reported in 654 N.W.2d 256.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Bruce A. Schultz of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.
    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Mark W. Andrews of Winner, Wixson & Pernitz, Madison.
    On behalf of the defendant-cross-respondent, the cause was submitted on the briefs of Bruce D. Huibregtse and Barbara A. Neider of Stafford Rosen-baum LLP, Madison.

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

       Petition to review denied 12-10-02.

   ANDERSON, J.

¶ 1. This is a personal injury tort action arising out of an industrial accident that occurred during the course and scope of Robert Kopfhamer's employment. On appeal, Wisconsin Public Service Corporation (WPSC) contends that the trial court erred when it ruled that WPSC was equitably and judicially estopped from invoking the exclusivity provisions of the Worker's Compensation Act (WCA) in order to seek protection from Robert and Margaret Kopfham-ers' tort claim. WPSC is correct. We reverse and hold that, as a matter of law, WPSC is entitled to summary judgment and is dismissed from the case.

¶ 2. On cross-appeal, the Kopfhamers make two claims. First, they argue that the trial court erred when, at the close of trial, it dismissed Madison Gas and Electric Company (MGE) from the case. The Kopfham-ers contend that the evidence showed that WPSC was MGE's agent and that therefore MGE was vicariously liable for WPSC's tort. The trial court disagreed and found that MGE was not vicariously liable because WPSC was an independent contractor, not an agent of MGE. On this issue, the trial court is correct; therefore, we affirm.

¶ 3. The Kopfhamers also cross-appeal the trial court's decision to apply the collateral source rule. They argue that information concerning collateral sources of wages and benefits should not have been utilized to reduce their loss of earnings claims. Given our decision to dismiss WPSC from the case, the collateral source issue is moot.

Facts

¶ 4. Robert's injury occurred on April 27, 1994, at the Kewaunee Nuclear Power Plant (KNPP). The KNPP is owned by three Wisconsin public utilities— WPSC, MGE, and Wisconsin Power and Light Company (WPL). Pursuant to written agreements among the owners, WPSC was the utility responsible for the operation of the plant. WPSC and WPL entered into an agreement (Peaker Agreement) wherein WPL would provide skilled employees to WPSC to perform maintenance work during scheduled shutdowns, at the KNPP The Peaker Agreement specifically provided that WPSC "shall assign specific tasks to the Employees after arrival at the KNPP and shall in all respects direct and control such Employees in their performance of the assigned tasks .... Each Employee shall continue to be an employee of WPL." It further provided that "WPL shall have exclusive responsibility for the payment of salary, wages, workers' compensation, payroll taxes and all employee benefits for the Employees" and that WPL will bill WPSC for the employees' wages plus a loading factor.

¶ 5. WPL employees assigned to work at the KNPP for WPSC during these scheduled plant shutdowns were known as "peakers." While remaining employees of WPL, the peakers were to be under the direct supervision and control of WPSC during the periods they worked at the KNPP

¶ 6. Robert was working as a peaker at the KNPP when his accident occurred. After his accident, Robert made a claim under the WCA and received compensation from his employer, WPL, for injuries sustained in his accident.

¶ 7. In addition to Robert's worker's compensation claim, the Kopfhamers filed a civil action against MGE, WPL and WPSC. In response, two summary-judgment motions were filed — one by MGE and one jointly by WPL and WPSC.

¶ 8. MGE. MGE's summary judgment motion was granted with the exception of the Kopfhamers' claim that MGE was negligent in the original design of the KNPP At the close of the Kopfhamers' case, MGE moved for dismissal pursuant to Wis. Stat. § 805.14(3) (1999-2000). That motion was granted and MGE was dismissed entirely from the case.

¶ 9. The Kopfhamers cross-appeal MGE's dismissal arguing that (1) MGE should be held vicariously liable for the damages suffered by the Kopfhamers and (2) information concerning collateral sources of wages and benefits should not have been utilized to reduce the plaintiffs loss of earnings claims.

¶ 10. WPL. For context, we briefly discuss WPL's procedural status, though it is not a party on appeal or cross-appeal. The summary judgment motion filed jointly by WPL and WPSC was based upon the exclusive remedy provision of the WCA, Wis. Stat. § 102.03(2), and argued that both WPL and WPSC were protected from the Kopfhamers' claim. The trial court granted the motion with regard to WPL. No appeal was taken. Accordingly, WPL's interest — reimbursement pursuant to Wis. Stat. § 102.29(1) for compensation paid to Robert — is not before us.

¶ 11. WPSC. In WPSC and WPL's joint motion for summary judgment, they specifically argued that WPSC was protected pursuant to either Wis. Stat. § 102.29(6) or (7). From the beginning, WPSC admitted that Robert was an employee of WPL and asserted that it nonetheless was protected by the exclusive remedy rule of the WCA.

¶ 12. In addressing the motion for summary judgment as it pertained to WPSC, the trial court did not reach the merits and instead held that WPSC was estopped from asserting that it was Robert's employer. However, the record reveals that WPSC never asserted that it was Robert's employer. Rather, WPSC consistently asserted the affirmative defense that it was protected by the WCA pursuant to either the temporary help agency (Wis. Stat. § 102.29(6)) or the loaned employee (§ 102.29(7)) sections of that statute.

¶ 13. To support its estoppel decision, the trial court relied on statements it had made at an earlier hearing. The subject of that hearing was a motion by the Kopfhamers to reconsider the court's dismissal of WPL from the case. WPSC did not appear at the hearing, believing that it did not have an interest at stake. The court believed otherwise and determined that because WPSC did not appear, it could not later claim the protection of the WCA. Specifically, the court stated:

I can assure you that because [WPSC and/or others] haven't jumped in here, there is no way this Court's going to grant the fact that [any of them] are the employers of Mr. Kopfhamer because they had the opportunity to come in now and do so and they didn't. I mean they could have, but they haven't.
I think that's a good sign to me. that they're not considering themselves to be the employer, and I can assure you if they come in now and try to use that tactic, it's not going to work because they have certainly had that — it's almost like a preclusion on the estoppel time situation.

¶ 14. Thereafter, WPSC continued to assert the exclusive remedy defense. First, WPSC filed an interlocutory appeal; at that time, we declined to review the merits of the trial court's ruling. Next, WPSC filed a motion with the trial court for reconsideration, which was denied. Then WPSC filed an amended answer, again raising the exclusive remedy defense. WPSC filed a second motion for summary judgment on the same grounds as the first. The trial court denied this motion as well.

¶ 15. At the close of the Kopfhamers' case, WPSC again asserted its affirmative defense. In response, the trial court stated that its earlier rulings were unclear because the law of judicial estoppel is "all over the place." The trial court then stated that WPSC had waived the exclusivity defense. At the close of evidence, WPSC brought a similar motion asserting its affirmative defense. This motion was summarily denied.

¶ 16. Finally, after having been found causally negligent by the jury, which awarded damages of over $1.3 million to the Kopfhamers, WPSC filed a motion after verdict again raising its defense. WPSC's motion was denied. Again the court ruled that WPSC was barred from asserting the exclusivity defense because of judicial and equitable estoppel. The court entered its final judgment. WPSC appeals and the Kopfhamers cross-appeal.

Standard of Review

¶ 17. On appeal, we review the trial court's decision to employ estoppel in response to WPSC's motion for summary judgment; we also interpret portions of the WCA.

¶ 18. Summary Judgment. The material facts underlying the trial court's decision are undisputed. Although we employ the same methodology set forth in Wis. Stat. § 802.08(2) as the circuit courts, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987), we review the application of legal principles to undisputed facts in a summary judgment disposition without deference to the lower courts. See Estate of Hegarty ex rel. Hegarty v. Beauchaine, 2001 WI App 300, ¶ 14, 249 Wis. 2d 142, 638 N.W.2d 355. Under § 802.08(2), summary judgment shall be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

¶ 19. Statutory Interpretation. We perform the task of statutory interpretation without deference to the circuit court. DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986). Only when statutory language is ambiguous may we examine other construction aids, such as legislative history, context, and subject matter. State v. Waalen, 130 Wis. 2d 18, 24, 386 N.W.2d 47 (1986). A statute is ambiguous if reasonable persons could disagree as to its meaning. Williquette, 129 Wis. 2d at 248. The application of a statute to undisputed facts is a question of law which we review de novo. State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989).

Discussion

¶ 20. Appeal. The question on appeal is whether the exclusive remedy rule of the WCA bars the Kopfhamers' claim against WPSC. We hold that under Wis. Stat. §§ 102.29(6) and 102.01(2)(f), WPL was a "temporary help agency" and Robert was placed with WPSC by WPL, thereby affording WPSC the protection of the exclusive remedy rule. This protection bars the Kopf-hamers' claim against WPSC. This holding comports with the goal of the exclusive remedy rule:

The exclusive remedy rule is critical to the balance that the Worker's Compensation Act strikes between the interests of employers and employees. Under the act, employers are held strictly liable for all work-related injuries that befall their employees in return for immunity from tort action. In turn, employees recover less than potentially available in a tort action in return for coverage of all work-related injuries regardless of fault.

Bauernfeind v. Zell, 190 Wis. 2d 701, 713, 528 N.W.2d 1 (1995) (citations omitted). In Bauernfeind, our supreme court specifically explained the purpose of the temporary help agency statutes as a means to "simplify the determination of whether an employee who was injured in the workplace may maintain a tort action against a temporary employer." Id. at 710-11. Section 102.29(6) provides:

No employee of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any employer who compensates the temporary help agency for the employee's services.

¶ 21. Thus, "in order for a special employer to be immune from tort liability under sec. 102.29(6), Stats., the general employer must be a 'temporary help agency' under sec. 102.01(2)(f), Stats." Bauernfeind, 190 Wis. 2d at 711. Under § 102.01(2)(f), a "temporary help agency" is defined as

an employer who places its employee with or leases its employees to another employer who controls the employee's work activities and compensates the first employer for the employee's services, regardless of the duration of the services.

The application of the temporary help agency provisions is not limited to employers such as Manpower, Inc. or Kelly Services that are "in the business" of placing temporary help. Gansch v. Nekoosa Papers, Inc., 158 Wis. 2d 743, 748-49, 463 N.W.2d 682 (1990).

¶ 22. The Peaker Agreement entered into and acted upon by WPL and WPSC created a "temporary help agency" under the WCA. The Peaker Agreement specifically provided that WPSC "shall assign specific tasks to the Employees after arrival at the KNPP and shall in all respects direct and control such Employees in their performance of the assigned tasks .... Each Employee shall continue to be an employee of WPL." It further provided that "WPL shall have exclusive responsibility for the payment of salary, wages, workers' compensation, payroll taxes and all employee benefits for the Employees" and that WPL will hill WPSC for the employees' wages plus a loading factor.

¶ 23. In other words, under Wis. Stat. §§ 102.29(6) and 102.01(2)(f), WPL was a "temporary help agency" because it was an employer who placed its employee (Robert) with an employer (WPSC) who controlled the employee's work activities and compensated the first employer (WPL) for the employee's services. As such, Robert’s claim for and recovery of compensation under the WCA was his exclusive remedy. Section 102.29(6) bars him from making a claim or sustaining an action in tort against an employer who compensated a temporary help agency for his services. WPSC controlled Robert's work activities and compensated WPL for Robert's services; therefore, Robert's claim is barred.

¶ 24. Moreover, WPSC's actions would not have merited the application of judicial estoppel even if its application were an option. Judicial estoppel is an equitable rule applied at the discretion of the court to prevent a party from adopting inconsistent positions in legal proceedings. State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996). The purpose of judicial estoppel is to preserve the integrity of the judicial system and prevent litigants from playing "fast and loose" with the courts. Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994). WPSC asserted a consistent position throughout the proceedings and hardly played fast' and loose by not attending a motion hearing in which it was not a named party.

¶ 25. Cross-appeal. The Kopfhamers argue that the trial court erred when it granted MGE's motion for summary judgment and dismissed MGE from the case. The Kopfhamers contend that the evidence showed that WPSC was MGE's agent and that therefore MGE was vicariously liable for WPSC's tort. The trial court disagreed and found that MGE was not vicariously liable because WPSC was an independent contractor, not an agent of MGE.

¶ 26. It is well established that "one who contracts with an independent contractor is not liable to others for the torts of the independent contractor." Snider v. N States Power Co., 81 Wis. 2d 224, 232, 260 N.W.2d 260 (1977). Thus, if WPSC is an independent contractor, MGE would not he vicariously liable to the Kopfhamers for the torts of WPSC.

¶ 27. The determinative issue is whether WPSC is an independent contractor. We hold that the facts establish that WPSC operated the KNPP as an independent contractor and that therefore the trial court correctly held that MGE was not vicariously liable to the Kopfhamers.

¶ 28. The operating agreement among the three owners shows that MGE and WPL contracted with WPSC to operate and maintain the KNPP and that WPSC's performance of this undertaking was not subject to control by MGE or WPL. Pertinent portions of this agreement state:

The Nuclear Plant will be directly operated and maintained by the "Operating Company" in accordance with good utility operating practices and the general policies to be established by the Operating Committee. Until otherwise agreed by all of the Companies, Service Company [WPSC7 shall be the Operating Company, and the Atomic Energy Commission licensee. It shall operate and maintain the Nuclear Plant in the same manner as if it were one of its own generating stations, utilizing its own employees and supervisory personnel as required in the performance of this Agreement, and any independent technical advisors which it may select, and otherwise acting in all respects as though it were an independent contractor engaged by the Companies to be responsible for the result to be attained, i.e., generation of power and energy at the Nuclear Plant, as economically as possible, and delivery thereof to the connected 345 KV transmission system for transmission to the Companies, the Operating Company having sole responsibility for the specific manner of attaining that result. (Emphasis added.)

¶ 29. This agreement expressly reveals that WPSC was to "operate and maintain" the KNPP acting as "an independent contractor engaged by the Companies to be responsible for the result to be attained" — the generation of power and energy at the KNPP as economically as possible. WPSC was given "sole responsibility for the specific manner of attaining that result" and was to "operate and maintain the . .. Plant... as if it were one of its own."

¶ 30. In Bulgrin v. Madison Gas & Electric Co., 125 Wis. 2d 405, 407, 373 N.W.2d 47 (Ct. App. 1985), we interpreted an operating agreement that Was substantially identical to the agreement at issue here. There, an employee of WPL was injured on the job at the Columbia Energy Center (CEC). Id. The CEC was also owned by MGE, WPL and WPSC, except that WPL was the operating company. Id. at 410. The issue was whether the non-operating companies had made a prima facie showing that the injured employee was their employee, thus entitling them to the protection of the exclusive remedy rule. Id. at 407. We held that based on the operating agreement, the non-operating companies surrendered to WPL their right to supervise and control the employees at the CEC and that therefore the injured employee was not an. employee of the non-operating companies. Id. at 411-12.

The 1975 Unit will be directly operated and maintained by the "Operating Company" in accordance with good utility operating practices and the general policies to be established by the Operating Committee. Power Company shall be the Operating Company.

¶ 31. In Bulgrin, we noted that the primary test to determine whether a person is an employee is whether the employer has the right to control the details of that person's work. Id. at 412-13. Bulgrin governs because the same test is used to determine whether a person is an independent contractor. See Snider, 81 Wis. 2d at 232.

¶ 32. .Under this test and upon the record before us, we conclude, as we did in Bulgrin, that the non-operating company surrendered to the operating company its right to supervise and control the employees at the plant. See Bulgrin, 125 Wis. 2d at 411-12. Specifically, MGE surrendered to WPSC its right to supervise and control the employees at the KNPP As such, WPSC was not an agent of MGE; it was an independent contractor. Thus, as a matter of law, MGE cannot be held vicariously liable for the damages sustained by the Kopfhamers.

¶ 33. Finally, as stated earlier, because we reverse the trial court's holding on appeal and dismiss WPSC from the case, the collateral source issue is moot.

By the Court. — Judgment reversed; cross-appeal affirmed.

       The first four causes of action alleged that Robert was an employee of WPL. Count One alleged safe-place violations against WPSC and MGE. Count Two alleged ordinary negligence against WPSC and MGE. Count Three alleged negligence against WPL and MGE in the selection of WPSC to operate the KNPP Count Four alleged negligence against WPL in the operation of the KNPP and alleged that WPSC and MGE are vicariously liable as joint venturers for the negligence of WPL.
      The next three causes of action alleged that Robert was an employee of WPSC. Count Five alleged safe-place violations against WPL and MGE. Count Six alleged ordinary negligence against WPL and MGE. Count Seven alleged negligence against WPSC in the operation of the KNPP and that WPL and MGE are vicariously liable as joint venturers for the negligence of WPSC in the operation of the KNPP and that WPL and MGE are vicariously liable as joint venturers for the negligence of WPSC.
      Counts Eight and Nine were product liability claims against the unknown manufacturer of the allegedly defective equipment involved in Robert's injury and against the unknown manufacturer's liability insurer. The parties were not able to identify the manufacturer or its insurer and thus, the claims against these entities were not pursued. Count Ten is a derivative cause of action seeking damages for loss of consortium on behalf of Margaret Kopfhamer.

       Wisconsin Stat. § 805.14(3) provides:
      (3) Motion at close op plaintiff's evidence. At the close of plaintiffs eyidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence. If the court determines that the defendant is entitled to dismissal, the court shall state with particularity on the record or in its order of dismissal the grounds upon which the dismissal was" granted and shall render judgment against the plaintiff.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 102.03 provides in pertinent part:
      (1) Liability under this chapter shall exist against an employer only where the following conditions concur:
      (a) Where the employee sustains an injury.
      Ob) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.
      (c) 1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.

        4. The premises of the employer include the premises of any other person on whose premises the employee performs service.
      (2) Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the worker's compensation insurance carrier .... (Emphasis added.)

       Wisconsin Stat. § 102.29(1) provides in pertinent part:
      (1) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employee shall not affect the right of the employee, the employee's personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a 3rd party; nor shall the making of a claim by any such person against a 3rd party for damages by reason of an injury to which ss. 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employee or the employee's dependents to recover compensation. The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall have the same right to make claim or maintain an action in tort against any other party for such injury or death ....

       Wisconsin Stat. § 102.29(6) and (7) provide:
      (6) No employee of a temporary help agency who makes a claim for compensation may make a claim or maintain an action in tort against any employer who compensates the temporary help agency for the employee's services.

        (7) No employee who is loaned by his or her employer to another employer and who makes a claim for compensation under this chapter may make a claim or maintain an action in tort against the employer who accepted the loaned employee's services.

       The pertinent portions of the operating agreement in Bulgrin v. Madison Gas & Electric Co., 125 Wis. 2d 405, 410, 373 N.W.2d 47 (Ct. App. 1985), stated:
      It shall operate and maintain the 1975 Unit in the same manner as if it were one of its own generating stations, utilizing its own employees and supervisory personnel as required in the performance of this Agreement, and any independent technical advisers which it may select, and otherwise acting in all respects as though it were an independent contractor engaged by the Companies to be responsible for the result to be attained, i.e. generation of power and energy at the 1975 Unit, as economically as possible, and delivery thereof to the connected 345 KV transmission system for transmission to the Companies, the Operating Company having sole responsibility for the specific manner of attaining that result. During operation conditions which the Operating Company in its sole judgment deems abnormal, the Operating Company shall take such action as it deems appropriate to safeguard equipment and to maintain service of the 1975 Unit.

       The Kopfhamers also advance another theory of vicarious liability. They assert that "pursuant to federal law” MGE had a nondelegable duty regarding the operation of the plant. They argue that, based on this nondelegable duty, MGE should be held vicariously liable for WPSC's tort. This theory incorrectly assumes that the Kopfhamers have a private right of action to maintain such a claim. However, a private cause of action does not exist in light of Congress' express prohibition against private enforcement of the Atomic Enforcement Act in 42 U.S.C. § 2271(c), which provides that: "No action shall be brought against any individual or person for any violation under this chapter ... except by the Attorney General of the United States . ..." Brown v. Northeast Nuclear Energy Co., 48 F. Supp. 2d 116,121-22 (D. Conn. 1999). In light of this explicit language, the Kopfhamers cannot state a private cause of action claiming a violation of the federal nuclear safety regulations. See id.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    David J. Carmain, Plaintiff-Respondent, v. Affiliated Capital Corporation, a Wisconsin corporation, Chestnut Ridge Apartments I, LLP, and Chestnut Ridge Apartments II, LLP, Defendants-Appellants.
    Court of Appeals

      No. 01-3077.

      Submitted on briefs August 21, 2002.

    Decided October 2, 2002.

    2002 WI App 271
    (Also reported in 654 N.W.2d 265.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Daniel W Krueger of Godfrey, Leibsle, Conover, Blackbourn & Howarth, S.C., Elkhorn.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert E. Mahoney of The Mahoney Law Firm, LLC, Delavan.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Affiliated Capital Corporation (ACC) and Chestnut Ridge Apartments I, LLP and Chestnut Ridge Apartments II, LLP (collectively, Chestnut Ridge) appeal from a default judgment granted to David J. Carmain awarding him damages in the amount of $12,000. ACC and Chestnut Ridge first argue that the circuit court erred in concluding that service upon Chestnut Ridge was sufficient. In addition, ACC and Chestnut Ridge argue that a letter filed by ACC's director of property management, a nonlawyer, constituted an answer sufficient to amend the pleadings and allow joinder of issue; in the alternative, ACC and Chestnut Ridge argue that if the letter does not constitute an answer, their failure to file an answer is the result of excusable neglect. Finally, ACC and Chestnut Ridge argue that the circuit court erred in prohibiting them from presenting evidence on the issue of damages.

¶ 2. We agree that Chestnut Ridge was not properly served and ACC should have been allowed to present evidence on the issue of damages. However, we also conclude that ACC's letter was not a proper answer and ACC has not demonstrated excusable neglect.

FACTS

¶ 3. In fall 2000, Carmain was a resident of an apartment building complex owned by Chestnut Ridge and managed by ACC. ACC had hired Carmain to perform occasional maintenance tasks; Carmain was to be compensated for this work. At some point, ACC terminated its relationship with Carmain.

¶ 4. Carmain filed suit on February 15, 2001, alleging breach of contract against ACC and Chestnut Ridge, requesting damages "in an amount in excess of $12,000." On February 22, 2001, two separate copies of the summons and complaint, one for Chestnut Ridge I and another for Chestnut Ridge II, were delivered by a Walworth county deputy sheriff to "Jerry Mann, Employee in charge" at 433 Autumn Drive, Delavan, Wisconsin, the office for Chestnut Ridge. Mann was a maintenance man for ACC.

¶ 5. Service was made on March 1, 2001, by personal service upon Fred H. Loeb, the registered agent of ACC and a nonpracticing attorney. Loeb apparently gave Lisa R. Barkelar, director of property management for ACC, the complaint; Barkelar, who is not an attorney, prepared a letter dated March 25, 2001, and forwarded a copy of this letter to Carmain's attorney and the circuit court.

¶ 6. On June 4, 2001, Carmain filed a motion for default judgment. A copy of this motion for default judgment and other supporting materials were mailed to and received by Loeb. In this motion for default judgment, Carmain asserted that ACC had been served on March 1, 2001, and was therefore required to file an answer no later than April 16, 2001. The motion stated that ACC

has failed to file an Answer or other appropriate responsive pleading as required by statute. Rather, Defendant merely mailed a copy of a letter dated March 25, 2001 to the Clerk of this Court and the undersigned counsel for the Plaintiff. The Defendant Affiliated is in default as a result of its failure to file a responsive pleading or response in accordance with the applicable statute.

¶ 7. On June 13, 2001, ACC and Chestnut Ridge filed a document labeled "Amended Answer," along with a motion to dismiss for lack of personal jurisdiction over Chestnut Ridge and a response to Carmain's motion for default judgment. ACC and Chestnut Ridge asserted that Chestnut Ridge had been improperly served, that they had the right to amend their prior "answer" (the March 25, 2001 letter) and that they demonstrated excusable neglect for not filing a prior, original answer.

¶ 8. On June 20, 2001, the circuit court tentatively ruled against ACC and Chestnut Ridge on Carmain's motion for default judgment. The circuit court held that the substituted service of process on Chestnut Ridge was sufficient, that ACC was barred from amending the March 25, 2001 letter when no legally sufficient answer was made by a legally competent person and that excusable neglect was not exhibited under the circumstances. The circuit court gave ACC and Chestnut Ridge two weeks to respond to its tentative ruling and allowed additional filings but only as to the issues of service and excusable neglect.

¶ 9. The circuit court held a second motion hearing on August 3, 2001. The circuit court held that proper service was made on Chestnut Ridge and there was no excusable neglect. The circuit court did not allow Chestnut Ridge and ACC to contest damages resulting from the default judgment but instead limited damages to the $12,000 amount Carmain had set forth in the complaint. An order for judgment was filed on August 23, 2001, reflecting these determinations. ACC and Chestnut Ridge appeal.

DISCUSSION

Service on Chestnut Ridge

¶ 10. The manner for service of a summons is set forth at Wis. Stat. § 801.11 (1999-2000) ; however, ACC and Chestnut Ridge argue this general service statute does not apply in this instance because Wis. Stat. § 179.04 contains specific, and hence exclusive, requirements for service on a Wisconsin limited partnership. Therefore, according to ACC and Chestnut Ridge, the circuit court erred when it concluded that service upon Chestnut Ridge was proper.

¶ 11. We examine the circuit court's decision to grant a default judgment under the erroneous exercise of discretion standard. See Kerans v. Manion Outdoors Co., 167 Wis. 2d 122, 130, 482 N.W.2d 110 (Ct. App. 1992). However, this particular issue involves questions of statutory interpretation which we decide de novo. See State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶ 11, 238 Wis. 2d 393, 617 N.W.2d 201. We agree that Chestnut Ridge was not properly served but not for the reasons proffered.

¶ 12. Wisconsin Stat. § 179.04 states as follows:

Record office and agent. (1) Each limited partnership shall continuously maintain in this state the following:
(a) A record office at which shall be kept the records required under s. 179.05.
(b) An agent for service of process on the limited partnership, which agent must be an individual resident of this state, a domestic corporation or limited liability company, or a foreign corporation or limited liability company authorized to do business in this state.
(2) If a limited partnership fails to maintain an agent for service of process in this state or if the agent cannot with reasonable diligence be found, substituted service may be made on the department by delivering duplicate copies of the process, together with a fee of $10. The department shall forward one copy by registered mail, addressed to the limited partnership at its record office.

¶ 13. The plain language of Wis. Stat. § 179.04 does not provide an exclusive means for service on a limited partnership but merely mandates that a limited partnership maintain an agent for service in the state and provides for substitute service in case the limited partnership fails to comply.

¶ 14. Service is governed by Wis. Stat. § 801.11. Both Chestnut Ridge I and II are limited partnerships and are identified as such in the notice of retainer filed by Chestnut Ridge's attorney. Section 801.11(1) addresses service upon a natural person, not a limited partnership. Section 801.11(2) provides for service upon a natural person with a disability. Section 801.11(3) and (4) supply service methods for the state and other political corporations or bodies politic, respectively. Section 801.11(5) applies to service upon domestic or foreign corporations or limited liability companies, not limited partnerships.

¶ 15. Wisconsin Stat. § 801.11(6) addresses service on partnerships and states:

A summons shall be served individually upon each general partner known to the plaintiff by service in any manner prescribed in sub. (1), (2) or (5) where the claim sued upon arises out of or relates to partnership activities within this state sufficient to subject a defendant to personal jurisdiction under s. 801.05(2) to (10). A judgment rendered under such circumstances is a binding adjudication individually against each partner so served and is a binding adjudication against the partnership as to its assets anywhere.

Subsection (6) requires service upon all the general partners known to Carmain; here, the only person served was a maintenance man. Service did not conform to the requirements of § 801.11(6).

¶ 16. While we do not agree with ACC and Chestnut Ridge that Wis. Stat. § 179.04 provides the exclusive means for service upon a limited partnership, a limited partnership may be served by serving the partnership's registered agent under § 179.04(l)(b) or by substituted service upon the Department of Financial Institutions pursuant to § 179.04(2). Neither of these procedures was followed.

¶ 17. In short, service upon the maintenance man did not comply with any of the requirements of Wis. Stat. §§ 801.11 or 179.04. Because service was improper, the circuit court did not have personal jurisdiction over Chestnut Ridge and erred in denying the motion to dismiss Chestnut Ridge from the proceedings and granting Carmain default judgment agáinst Chestnut Ridge.

ACC's March 25, 2001 Letter

¶ 18. ACC argues that the March 25, 2001 letter was a proper answer and the circuit court erred when it refused to allow it to file an amended answer. We disagree that the March 25, 2001 letter was a proper answer.

¶ 19. Again, we examine the circuit court's decision to grant a default judgment under the erroneous exercise of discretion standard. See Kerans, 167 Wis. 2d at 130. Here, the March 25, 2001 letter was prepared, signed and filed by Barkelar, director of property management for ACC and a nonlawyer. However, the Wisconsin Supreme Court has unequivocally stated that under Wisconsin rules and statutes, only lawyers can appear on behalf of or perform legal services for corporations in legal actions in Wisconsin courts. Jadair Inc. v. U.S. Fire Ins. Co., 209 Wis. 2d 187, 202, 562 N.W.2d 401 (1997). The only exception to this rule is small claims court. Id. Carmain requested relief "in an amount in excess of $12,000," an amount which places this action outside of the small claims arena. Thus Barkelar, as a nonlawyer, could not legally appear on behalf of ACC and her letter was not a legally valid answer.

¶ 20. ACC vainly attempts to distinguish Jadair, arguing that the Jadair court only considered the consequences of a nonlawyer representing a corporation by filing a notice of appeal, not whether a party could amend the notice of appeal and have a lawyer file the notice of appeal on behalf of the corporation in order to correct the prior defects. This is not entirely true. The Jadair court specifically stated that "an appellate court will not permit amendment of a fundamentally defective notice of appeal to save jurisdiction" and held that a notice of appeal filed by a nonlawyer was fundamentally defective. Id. at 211-13.

¶ 21. In addition, the Jadair court did not limit its holding to notices of appeal but specifically stated, "Under the plain language of the rules and statutes, we conclude that only lawyers can appear on behalf of, or perform legal service for, corporations in legal proceedings before Wisconsin courts." Id. at 202. Furthermore, other courts have since affirmed Jadair's holding, stating, "The Wisconsin Supreme Court has ruled that nonlawyers such as officers, directors, and shareholders may not represent corporations in Wisconsin courts. The supreme court ruled that corporations may appear in Wisconsin courts only by means of a lawyer licensed to practice law in Wisconsin. . . ." Life Sci. Chur. v. Shawano County, 221 Wis. 2d 331, 333, 585 N.W.2d 625 (Ct. App. 1998) (citation omitted). Barkelar is not a lawyer and thus her letter was not a legally recognizable answer, a nullity; ACC cannot amend a nullity.

¶ 22. ACC argues that if the March 25, 2001 letter does not constitute a legally recognizable answer, its failure to file an answer constitutes excusable neglect. Again, we disagree.

¶ 23. A party is entitled to relief from the default judgment if the judgment was the product of mistake, inadvertence, surprise or excusable neglect. Wis. Stat. § 806.07(l)(a). The burden is on the defendant to show that one of these requisite conditions exists. Hansher v. Kaishian, 79 Wis. 2d 374, 389, 255 N.W.2d 564 (1977). Excusable neglect is that neglect which might have been the act of a reasonably prudent person under similar circumstances. Id. at 391. The circuit court should consider whether the defaulting party acted promptly, whether the default judgment imposes excessive charges, and whether or not the default judgment would result in a miscarriage of justice. Dugenske v. Dugenske, 80 Wis. 2d 64, 68-69, 257 N.W.2d 865 (1977).

¶ 24. A circuit court's discretion contemplates an exercise of judicial judgment based on three factors: (1) the facts of record; (2) logic; and (3) the application of proper legal standards. Shuput v. Lauer, 109 Wis. 2d 164, 177-78, 325 N.W.2d 321 (1982). We will not reverse a discretionary determination by the circuit court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision. Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372 (Ct. App. 1987).

¶ 25. ACC argues that its failure to file a proper answer constitutes excusable neglect because it acted promptly after being notified of the possibility of a default judgment, the damages imposed were excessive and a vacation of the default judgment prevents a miscarriage of justice. ACC argues that Barkelar's March 25, 2001 letter responded in a timely fashion and because there was no response to the letter, ACC believed the letter response was adequate.

¶ 26. ACC relies heavily on the fact that once notified of the possibility of a default judgment, it responded quickly. "However, promptness does not of itself require an affirmative result; the matter remains in the trial court's discretion, to be exercised upon the totality of the circumstances." Hansher, 79 Wis. 2d at 392.

¶ 27. Here the circuit court stated:

This court believes under all the circumstances that ACC's letter response by a nonlawyer was not the act of a reasonably prudent person under all the circumstances and, therefore, was not excusable. The legally educated president of ACC did not act reasonably when he failed to carefully read the summons and complaint and then instead gave it to a legally ignorant lay employee of- the corporation, and then without checking, left it to that employee to do what was required without directing her in any way. That is not the actions of a reasonable — reasonably prudent person.
It is clear that the president of the corporation . .. although he was referred to Chapter 802 statutes in the complaint, if he had read it, never bothered to look at that chapter much less warn his lay employee Barkelar to do so.
Further, incredibly, he seemed unaware that this was not a small claims case even though the complaint clearly showed it was not; and he seemed totally unaware that a corporation cannot, except in small claims cases, act before the court except through an attorney.

We agree. Barkelar, as the director of property management for a substantial, sophisticated real estate management corporation, herself with significant academic and professional qualifications, was certainly able to understand the summons. Loeb, as an attorney, should be more than adept at understanding the practical and legal implications of a summons. No explanation was provided as to why Loeb, president of the corporation and a nonpracticing lawyer, gave the complaint to Barkelar, a nonlawyer who "deals" only with small claims cases on behalf of ACC. No explanation was provided as to why, despite the fact that the clearly worded summons informed ACC of its legal obligations and responsibilities and contained a request for relief well beyond the limits of a small claims court, Barkelar thought a letter would suffice. Finding no excusable neglect was a proper exercise of the circuit court's discretion.

Damages

¶ 28. Finally, ACC argues that the circuit court erred in prohibiting it from presenting evidence regarding damages. We agree.

¶ 29. Upon entry of a default judgment, the circuit court may hold a hearing or inquiry to determine damages. Smith v. Golde, 224 Wis. 2d 518, 530, 592 N.W.2d 287 (Ct. App. 1999). Here, Carmain asked for damages "in an amount in excess of $12,000." Wisconsin Stat. § 806.02 distinguishes between default judgments on liquidated damages and unliquidated damages claims. Section 806.02(4) grants the clerk authority to enter a default judgment only in actions "on express contract for recovery of a liquidated amount of money." This authority is not granted for recovery of unliqui-dated damages.

¶ 30. Wisconsin courts have declared that when determining damages for an unliquidated claim, a circuit court requires additional proof beyond the complaint. Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 387, 577 N.W.2d 23 (1998). If the defendant contests the amount of damages, he or she may appear at a hearing to assess damages, cross-examine the plaintiffs witnesses and present evidence to mitigate or be heard as to the diminution of damages. Smith, 224 Wis. 2d at 530. A defendant has a substantial and fundamental right to participate and present evidence on his or her behalf as to the issue of damages. See id. at 530-31. The circuit court erred when it denied ACC this right.

CONCLUSION

¶ 31. Chestnut Ridge was not properly served because the provisions of Wis. Stat. § 801.11 were not followed and the circuit court erred when it ruled otherwise; the circuit court therefore did not have jurisdiction over Chestnut Ridge. However, the circuit court was well within its discretion when it concluded that ACC's March 25, 2001 letter was not a proper answer and that ACC has not demonstrated excusable neglect. Finally, we conclude that the circuit court erred when it denied ACC the opportunity to present evidence on the issue of damages. We reverse the portion of the judgment holding that Chestnut Ridge was properly-served and that portion of the judgment relating to damages. We affirm that portion of the judgment holding that the March 25, 2001 letter was not a proper answer and that ACC did not demonstrate excusable neglect. We remand for a hearing on damages.

¶ 32. Costs are denied to all parties.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 179.04 has been amended by 2001 Wis. Act 44, § 17 but said amendment is immaterial to the issue before us.

       We do find it significant that Loeb, in his affidavit in opposition to the default judgment, failed to inform the circuit court that, in addition to being the registered agent and president of ACC, he is also a lawyer.


author: VERGERONT, RJ.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Vernell T. Williams, Defendant-Respondent.
    Court of Appeals

      No. 02-0384-CR.

      Submitted on briefs August 9, 2002.

    Decided October 3, 2002.

    2002 WI App 306
    (Also reported in 655 N.W.2d 462.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of David J. O'Leary, district attorney, and Scott H. Dirks, assistant district attorney, Janesville.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael A. Haakenson of Haakenson & Haakenson, Janesville.
    Before Vergeront, PJ., Dykman and Lundsten, JJ.
   VERGERONT, RJ.

¶ 1. The State appeals from the trial court's order granting Vernell Williams's motion to suppress evidence discovered in his vehicle and statements he made after he was stopped by a police officer. The State contends the trial court erred in concluding that the officer who stopped him did not have the requisite reasonable suspicion for an investigative detention. We conclude the officer had the requisite reasonable suspicion to stop Williams's vehicle to determine if he was the suspect in a domestic abuse incident. We also conclude that, because the initial detention was lawful, the officer could properly ask Williams his name and for identification even if she had already decided he was not the suspect. However, we do not agree with the State that we can decide on the present record whether the officers unlawfully prolonged the detention to obtain Williams's consent to search his vehicle, whether he consented to the search, whether the consent if given was voluntary, and whether there are grounds to suppress Williams's statements. Findings of fact must be made before these issues can be decided. We therefore reverse and remand for further proceedings.

BACKGROUND

¶ 2. Officer Mary Garcia of the Beloit Police Department testified as follows at the hearing on Williams's motion to suppress. On June 16, 2001, she responded to a domestic abuse incident in Beloit. The complainant told Officer Garcia that her boyfriend, Demetrius Phillips, had a handgun and had been disorderly at the house. The complainant described Phillips as a black male in his twenties, approximately five feet six inches, weighing 150 or 160 pounds, and stated that he was driving a dark blue Chevrolet Euro 90's model with a red pinstripe and tinted windows. Officer Garcia had never met Phillips, but by June 20, 2001, she had seen a 1999 photo of him.

¶ 3. On the afternoon of June 20, while on duty, Officer Garcia observed a young black male driving a four-door blue Chevrolet Euro with a red pinstripe at an intersection a few blocks from the scene of the domestic abuse incident. The vehicle had a temporary registration plate. Officer Garcia could not remember at the hearing, but she did not think this vehicle had tinted windows. Officer Garcia activated her squad car lights and pulled the vehicle over to see if the driver was Phillips. The driver identified himself as Vernell T. Williams and gave his date of birth, 9-02-84, but he did not have a driver's license or any other identification to prove his identity. At the time Officer Garcia stopped him, she did not think she had seen Williams before, but by the time of the hearing she had realized she had had prior contact with him.

¶ 4. Officer Garcia called Officer Henderson over the police radio to ask if he would be able to identify Vernell Williams, and Officer Henderson said yes. Officer Garcia called Officer Henderson because he had a lot of contacts and knew a lot of people. Officer Henderson arrived at the scene and confirmed that the person in the vehicle was Williams. Officer Garcia had Williams's name and birth date run through the dispatcher and learned that Williams did not have a valid driver's license. Officer Garcia asked Williams to step out of the car. Officer Henderson patted Williams down. At some point Officer Garcia asked Williams if she could search his car, and Williams said "yes." Officer Garcia found nothing in the interior of the vehicle, but in the trunk she found a substance she believed to be cocaine.

¶ 5. Officer Garcia testified that at no time did Williams indicate that she could not search the vehicle and he was never upset with her searching the vehicle. She testified initially that, when she asked him if she could search his car, Williams was standing next to his car. She testified later that she asked if she could look in his trunk, and he said yes; she asked him this after he was put in one of the squad cars. Officer Garcia acknowledged that she did not issue Williams a citation for having an invalid driver's license.

¶ 6. Williams did not testify, but he called Can-neta Baumann, who lived on the street where Williams was stopped. She testified that she was outside and saw the car being pulled over across the street. She heard a female police officer say "get out of the car" and saw a man get out. She did not know the man, but she identified him as Williams, who was sitting in the courtroom. She saw him get out of the car, and he talked with the officer briefly, but she could not hear. She then saw them walk to the squad car and saw Williams get into the squad car. The female officer walked back to the blue car, stuck her head in and went back to the squad car and talked to Williams with the door open. Baumann could not hear what the officer was saying, but she heard Williams yell "why are you in the fucking car without my permission." Baumann went in and out of her house a couple of times during the incident. She did not see the officer searching the car.

¶ 7. Officer John Fahrney of the Beloit Police Department also testified. When he learned on the police radio that Williams had been pulled over, he told Officer Garcia over the radio to attempt to obtain consent to search Williams's vehicle. When Officer Fahrney later arrived at the scene, Williams was already in the squad car and drugs had been found in his vehicle. Officer Fahrney believed Williams had been sitting in the squad car for less than ten minutes before Officer Fahrney arrived at the scene. Officer Fahrney read Williams his Miranda rights. Williams agreed to talk to him. Williams told the officer the cocaine found in the car belonged to him and he intended to sell it. Officer Fahrney had talked to Baumann and she showed him where she was standing in her yard when she saw the incident. It was about 100 yards from the cars, and it was his opinion it would be hard to hear a conversation at that distance at that busy intersection. Baumann's statement to Officer Fahrney on what she saw and heard was similar to her testimony at the hearing. On cross-examination Officer Fahrney acknowledged that he did not have Williams sign a waiver of rights form the department has, and did not type up Williams's statement and give it to him to read.

¶ 8. The trial court granted Williams's motion to suppress, concluding that the initial stop violated the Fourth Amendment. The court decided that the description of a 90's blue Chevrolet Euro with a red pinstripe was too generic, and that was all the information Officer Garcia had at the time of the stop, other than that a black male was operating the vehicle. The court also found that the focus of the stop quickly switched from locating Phillips to Williams, and that a search of the vehicle had nothing to do with disorderly conduct that occurred four days ago. The court stated it was obvious to everyone that the officers were not going to release Williams once they determined he was not Phillips.

¶ 9. In reciting the testimony regarding the stop, the court observed that the sequence of events of identifying Williams, learning his driver's license was not valid, asking for consent to search his vehicle, and asking consent to search the trunk was not clear. However, the court did not make specific findings on these occurrences. The court indicated that it appeared Williams was asked to step out of the car so Officer Garcia could search it after she received the communication from Officer Fahrney. The court did not make any findings on why or when Williams was placed in the squad car.

¶ 10. The court stated it "had some real concerns with the consent to search," but decided it was not necessary to resolve those because of its conclusion that the initial stop was unlawful. The court did say that it did not "think the defendant was really given any alternatives in regard to his being released even after it was determined that he was not Demetrius Phillips."

DISCUSSION

¶ 11. The State contends that the trial court erred in concluding that Officer Garcia did not have reasonable suspicion to make the initial stop. In addition, the State contends the undisputed evidence establishes that the officers' conduct after the initial stop was lawful, Williams consented to the search of his vehicle, he waived his Miranda rights, and his statement to Officer Fahrney was freely and voluntarily given. Williams contests each of these propositions.

¶ 12. We address first the issue of the lawfulness of the initial stop. In executing a valid investigative stop consistent with the Fourth Amendment prohibition against unreasonable searches and seizures, a law enforcement officer needs to reasonably suspect, in light of his or her experience, that some kind of criminal activity has taken or is taking place. State v. Richardson, 156 Wis. 2d 128, 139, 456 N.W.2d 830 (1990). Reasonable suspicion must be based on specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Id. In determining what facts are sufficient to authorize police to stop a person, the court must take the totality of the circumstances into account. Id. The essential question is whether the action of the law enforcement officer was reasonable under all the facts and circumstances present. Id. "It is a common sense inquiry, which strikes a balance between the interests of society in solving crime and the members of that society to be free from unreasonable intrusions.'" (Citations omitted.) Id.

¶ 13. In reviewing a trial court's order suppressing evidence, we uphold a trial court's findings of fact unless they are clearly erroneous. State v. Mitchell, 167 Wis. 2d 672, 428 N.W.2d 364, 368 (1992). Whether the facts as found by the trial court meet the constitutional standard is a question of law, which we review de novo. State v. Krier, 165 Wis. 2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991).

¶ 14. We conclude that Officer Garcia did have knowledge of facts sufficient to provide a reasonable suspicion that the driver of the vehicle had been involved in the domestic abuse incident. The vehicle she stopped was sufficiently similar to that described by the complainant, and a young black male was driving the vehicle. The fact that she saw the car within a few blocks of the scene of the domestic abuse incident was an additional relevant factor: it was reasonable to infer that Phillips frequented the neighborhood where his girlfriend lived. Finally, stopping the vehicle to determine if Phillips was the driver was a means to quickly find that out with minimal intrusion.

¶ 15. Williams contends that his car did not completely match the description of the suspect's vehicle because his car had four doors, not two, and did not have tinted windows, and therefore Officer Garcia should have known immediately it was not Phillips's car. Officer Garcia did testify Williams's car had four doors, but her answer to the question whether she recalled the complainant telling her Phillips's car had two doors was "offhand no." Her testimony therefore does not establish that the complainant told her Phillips's car had two doors. As for the discrepancy over the windows, Officer Garcia could reasonably have concluded that the complainant witness may have made a mistake on this detail, given the match of the model and detail of the red pinstripe.

¶ 16. Williams also argues that Officer Garcia could see only that a young black male drove the car and that was insufficient to reasonably believe the driver matched the description of Phillips. However, what Officer Garcia observed of the driver, though very general, was consistent with the description of Phillips and that, together with the similarity of the car to the description of Phillips's car and the proximity to the scene of the domestic abuse, made it reasonable for Officer Garcia to stop the car to see if Phillips was the driver.

¶ 17. Williams also contends that the stop was unreasonable because four days had passed since the domestic abuse incident. While the proximity in time to the crime is a relevant factor in determining the constitutionality of an investigative detention of a suspect, there is no fixed requirement of how soon after the crime the stop must occur. State v. Guzy, 139 Wis. 2d 663, 677, 407 N.W.2d 548 (1987). Given that this was a domestic abuse incident and Phillips was the boyfriend of the complainant, it was reasonable to suspect he would be in the area of the incident several days later.

¶ 18. Having concluded that Officer Garcia had reasonable suspicion to stop Williams's vehicle to investigate whether the driver was Phillips, we next consider whether the conduct of the officers subsequent to the initial stop made the stop unlawful, as Williams contends. Williams asserts that, as soon as Officer Garcia saw the driver, she had to terminate the stop because she had seen a photograph of Phillips and would have known the driver was not Phillips. The State counters that Officer Garcia may not have been sure because Phillips's picture was two years old. However, Officer Garcia did not testify whether she recognized that the driver was not Phillips, and there is no evidence of Williams's appearance other than that he was a young black male. Thus, the parties are, in effect, disputing the proper inferences to draw from the evidence. However, that is the role of the trial court, not this court, and the trial court made no findings on this point. In any event, we conclude that, even if Officer Garcia realized that the driver was not Phillips before she asked his name and requested identification, it was reasonable for her to do this.

¶ 19. In State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990), we held that a request for a driver's license from a driver whose vehicle was disabled, and a status check on the license, did hot transform a lawful "motorist assist" into an unlawful seizure. We noted first the reasons that a report by the officer and identification of the motorist may be necessary: the officer may be required to record citizen contact; the information may be helpful to the officer in the event of later citizen complaints against the officer; and the information may aid in an investigation of a crime, such as theft of a car, even though at the time the activity — refueling a disabled vehicle as in Ellenbecker —may be innocuous. Id. at 97, 464 N.W.2d at 430.

¶ 20. We next stated that Wis. Stat. § 343.18(1) (1999-2000) gives law enforcement officers the authority to require a driver of a motor vehicle to display his or her license on demand. While we recognized that officers do not have unfettered discretion to stop drivers and request display of their licenses, we pointed out that Ellenbecker had not been signaled out for a spot check of his license, but was already stopped under lawful circumstance. We concluded that the request for Ellenbecker's license was reasonable. We also concluded that the check on the license's validity was reasonable because the authority to demand the license would be meaningless without that, and would not promote the purpose of § 343.18(1), which is to deter persons from driving without a valid license. Ellenbecker, 159 Wis. 2d at 97-98, 464 N.W.2d at 430. We held that the public interest in requesting the license and running the check did not outweigh the very minimal intrusion on the driver. Id.

¶ 21. We recognize that Ellenbecker involved a motorist assist — where the vehicle was already stopped because it was disabled — while Williams was stopped to investigate whether he was the subject in a crime. However, we have already held that Williams was lawfully stopped. The issue here is therefore similar to that in Ellenbecker: whether the request for identification transforms that lawful stop into an unlawful seizure.

¶ 22. For the reasons we relied on in Ellenbecker, we conclude that it was reasonable for Officer Garcia to make a report of the incident, even if she had already decided that the driver was not Williams, and for that purpose it was reasonable for her to ask for Williams's name and identification. Once Williams stated that he had no identification, there was a reasonable ground for further detention. Under Wis. Stat. § 343.18(1), persons operating motor vehicles are required to have their licenses with them. The fact that Williams did not have identification was a violation of this statute and was a reasonable ground for suspecting that Williams was not authorized to drive. We conclude that Officer Garcia's calling Officer Henderson because he knew many people was a reasonable means of identifying Williams, and, further, that once she knew the man was Williams, it was reasonable for her to ask dispatch to determine whether he had a valid driver's license.

¶ 23. However, as the trial court pointed out, the sequence and timing of events from this point on is not clear from the testimony, and this hampers our analysis of the lawfulness of the stop after the point in time that Officer Garcia learned Williams did not have a valid driver's license. Once Officer Garcia knew Williams did not have a valid driver's license, she could at that point lawfully detain him further only for the purpose of giving him a citation for that violation, and, perhaps, for a violation of Wis. Stat. § 343.18(1), since the record discloses no basis for reasonably suspecting him of any other violation at that time.

¶ 24. It is true that when an officer has fulfilled the purpose of a lawful stop, the officer's request for permission to search the vehicle does not, in itself, transform the stop into an unlawful one. State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996). In Gaulrapp, the person detained answered yes immediately, and we concluded that his consent was voluntary. Id. at 603, 608. Under those circumstances, we held the request to search did not unreasonably prolong the stop. Id. at 609. However, in State v. Gammons, 2001 WI App 36, ¶ 24, 241 Wis. 2d 296, 308, 625 N.W.2d 623, we held that an officer acted unlawfully when he did not terminate the detention after the reason for the initial lawful stop was resolved, and the driver had answered no to the questions whether he had any drugs in the vehicle, and whether the officer could search the vehicle. In Gammons, upon being told the driver would not consent to a search, the officer said he would get a police dog to sniff the car, and if the dog indicated there were drugs in the car, he would search the vehicle; at that point the driver said the officer could search his vehicle. Id. at ¶ 3. We concluded that detaining the driver after he initially said no to the search transformed the stop into an unlawful detention, and the State could therefore not rely on the subsequent consent to search to justify the police actions. Id. at ¶ 24.

¶ 25. Accordingly, in order to determine whether a search of Williams's vehicle was lawful under Gaul-rapp, we need to know the circumstances, including: (1) whether Officer Garcia asked Williams for consent to search his vehicle; (2) when she did so; (3) what he responded; and (4) when the search took place. We do not agree with the State that the answers to these questions are undisputed. Although Officer Garcia testified that she asked Williams for his consent and he gave it, there are reasonable inferences from Baumann's testimony, if it is believed, that may conflict with Officer Garcia's testimony: that Officer Garcia did not ask for Williams's consent/ or she asked and he said no, or he objected initially and ultimately agreed. The State argues that it is unlikely Baumann heard the comment from Williams that she testified to because of Officer Fahrney's testimony about the distance, but that is a credibility issue for the trier of fact to resolve, not this court. The trial court's comments on its concerns about the consent to search suggest that the court did view the evidence as raising questions as to whether Williams gave consent and, if so, whether consent was voluntary. We conclude there is conflicting evidence on these points, which the trial court must resolve.

¶ 26. The State points out that even if Baumann's testimony is believed, she did not see the search, and what she did hear was very likely said after Williams consented to a search, after the search was carried out. We do not understand how this proposed timeline resolves the conflict in the testimony: the State does not explain why Williams would have made the comment Baumann testified to if he had already consented. The State may mean to suggest, as the prosecutor's questions to Baumann did, that the search could have occurred after Baumann heard Williams's objection, and he could have agreed after he made that objection. However, if the officers did not promptly ask for consent to search when they had completed the investigation on the driver's license status and promptly obtained a "yes," they could not lawfully detain Williams in order to attempt to obtain his consent through further discussion or persuasion. See Gammons, 241 Wis. 2d at ¶ 24. We also observe that it is not clear from the record, and the court made no findings, on why Williams was placed in the squad car before the search was conducted, if that is in fact what happened. There was no testimony that he was placed ip the squad car in connection with preparing a citation regarding the driver's license violations.

¶ 27. We conclude we must remand to permit the trial court to make the factual findings necessary to determine whether the request to search unreasonably prolonged the stop, whether consent for the search was given, and, if so, was the stop unreasonably prolonged in order to obtain consent, and, if consent was given, whether it was involuntary. The trial court will then be able to decide whether the search of Williams's vehicle was lawful.

¶ 28. Williams contends, as he did before the trial court, that he was not properly advised of his Miranda rights and his statements to Officer Fahrney were not freely and voluntarily given. Part of Williams's argument on this issue is premised on his view of the evidence concerning consent to the search, and part requires findings of fact the court did not make because it suppressed the statements on the ground the initial stop was unlawful. On remand, the court will have the opportunity to make any findings of fact necessary to decide whether Williams's statements to Officer Fahr-ney must be suppressed.

By the Court. — Order reversed and cause remanded.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       In State v. Guzy, 139 Wis. 2d 663, 667, 407 N.W.2d 548 (1987), the court considered whether the officers had reasonable suspicion to stop a vehicle they sighted one-half hour after a reported robbery in which the robber was described as "a white male, five feet five inches — five feet eight inches, dark shoulder-length hair and a beard, a slim build, wearing sunglasses and a blue vest with red stripes"; no description of a vehicle was given, nor was there an indication that more than one person was involved. The officers stopped a truck with Minnesota license plates heading toward Minnesota because the robber could have been in that area by that time, and the male occupants had unusually long hair. Id. The court concluded that these two factors, coupled with the fact that there were very few vehicles on the road at 2:30 a.m., justified the officers stopping the vehicle to see if one or the other occupant matched the description, in view of the circumstances that they had no other means of corroborating the physical description and might lose the opportunity to investigate once the vehicle crossed the border. In reaching this conclusion, the court cited with approval this list of factors, which, it said, are "helpful" and "must be considered in reaching the required determinations":
      (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

        Id. at 677.
      However, the court acknowledged that more was involved in a. proper analysis than going through this list of factors:
      We agree that these factors are helpful and conclude that these factors must be considered in reaching the required determination. But the presence of some or all of these factors frequently does not end the problem for the law enforcement officers or the courts because questions remain. How many facts must be present in a given stop? Whát weight do we give these facts? When does the presence of one or more of these factors cross the line from being a "hunch" into being a "reasonable" suspicion? In balancing the nature and quality of the intrusion on personal security against the importance of the societal interest, at what point does the scale tip to reasonably justify the stop even though there are insufficient facts to establish probable cause?

        Guzy at 677.
      In this case, the third and fourth factors are not relevant because the officer was not stopping a suspect who was fleeing from a crime that had just been committed, and there is no evidence pertaining to the fifth and sixth factors. We therefore focus in our analysis on the first and second factors, and others we have identified as relevant in this case.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We observe that under State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990), even if Williams had produced his driver's license, Garcia could have lawfully checked on the status of his license.

       A voluntary consent to search is one of the exceptions to the general rale that searches conducted without warrants violate the Fourth Amendment. State v. Matejka, 2001 WI 5, ¶ 17, 241 Wis. 2d 52, 621 N.W.2d 891 (2001).


author: HOOVER, PJ.

text:
    Crystal Lake Cheese Factory, Petitioner-Appellant,  v. Labor and Industry Review Commission and Susan Catlin, Respondents-Respondents.
    Court of Appeals

      No. 02-0815.

      Submitted on briefs September 16, 2002.

    Decided October 8, 2002.

    2002 WI App 290
    (Also reported in 654 N.W.2d 286.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Robert H. Duffy, Sean M. Scullen and Quarles & Brady LLP of Milwaukee.
    On behalf of the respondent-respondent Labor and Industry Review Commission, the cause was submitted on the brief of James E. Doyle, attorney general, and David C. Rice, assistant attorney general.
    On behalf of the respondent-respondent Susan Cat-lin, the cause was submitted on the brief of Monica Murphy and Wisconsin Coalition for Advocacy of Milwaukee.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 2-19-03.

   HOOVER, PJ.

¶ 1. Crystal Lake Cheese Factory appeals a circuit court order affirming a Labor and Industry Review Commission (LIRC) decision that reversed a Department of Workforce Development Equal Rights Division administrative law judge's (ALJ) findings. LIRC found that Crystal Lake violated the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31 through 111.395. Specifically, LIRC determined that Crystal Lake had discriminated against Susan Catlin by refusing to modify her job duties and make physical modifications to the workplace after an automobile accident left Catlin a quadriplegic confined to a wheelchair. LIRC ordered Crystal Lake to offer Catlin reinstatement and pay back wages. Crystal Lake petitioned the circuit court for judicial review, and the court affirmed LIRC's decision. Crystal Lake now appeals, arguing that LIRC erred by holding there were reasonable accommodations the factory could make for Catlin without creating a hardship for itself. We reject Crystal Lake's arguments and uphold the circuit court order affirming LIRC's decision.

Facts

¶ 2. Crystal Lake operates a cheese factory in Comstock. It processes milk into several varieties of cheese, which it packs and markets under its own and several other brand labels. Catlin began working there in August of 1995 as a cheese cutter but was promoted to department head/lead worker shortly after starting. Catlin worked in the wholesale department, which consisted of four positions: department head, cheese cutter, cryovacer (packager), and labeler.

¶ 3. As department head, Catlin's primary duties were to gather store orders and make a direction sheet for the cutter containing a list of sizes and types of cheese to be cut that day, although she would also assist with assembling and labeling boxes and weighing, pricing, and boxing cheese. The cutter would take the instruction sheet, remove the cheese from the cooler, cut it, and set the pieces on a table. The cryovacer would then bag the pieces and place them in the cryovac machine to remove the air from the packages. After removing the air, the cryovacer gave the packages a quick hot water bath to shrink the wrapper around the cheese. The pieces were then labeled, weighed, priced, boxed and loaded onto a palette for storage. The wholesale department workers would also occasionally take a load of cheese to the factory store or help load semi-trucks, although truck loading primarily occurred around Christmas. All four workers in the department were trained for all four positions and would assist each other as necessary if any person fell behind or if the department was busier than usual.

¶ 4. In November 1996, Catlin was in an automobile accident that left her a quadriplegic. Catlin's coworkers called her during her hospitalization. In one of these calls, company president Tony Curella told Catlin her job would be available "no matter what." After treatment, recovery, and rehabilitation, Catlin believed she was ready to return to work in September 1997 and contacted Crystal Lake. She asked to speak to Curella, although he never returned her calls.

¶ 5. Curella then received a phone call from the Rice Lake Vocational Rehabilitation Center to discuss Catlin's return to work. Curella was surprised by the call and contacted his insurance company, which suggested he have an analysis of the workplace completed to see if there were any accommodations that could be made. The insurer sent information on a company called "Job Accommodation Network."

¶ 6. Curella instead hired David Johnson from Genex Services. Johnson surveyed Crystal Lake to determine whether a person in a wheelchair could perform Catlin's job. The only information Johnson had about Catlin was that she was in a wheelchair. Johnson concluded that no accommodations could be made to the job site because Catlin would be unable to perform all of the functions of all four positions in the wholesale department. Curella had informed Johnson that the ability to perform all of the functions was a necessary component of Catlin's position. Johnson also noted Catlin would have difficulty pulling and stocking inventory because of its weight and storage up to seven feet above the floor.

¶ 7. On the basis of Johnson's report, Crystal Lake concluded that it could make no accommodations for Catlin. Crystal Lake never contacted Catlin, however, and she only realized her employment had been terminated when she received instructions for withdrawing funds from her retirement plan.

¶ 8. When Catlin sought reinstatement she was capable of performing most of her job-related duties. She could not, however, lift forty-pound blocks of cheese, load or unload the hand cart or truck for transporting the cheese, reach boxes or cheese stored at high levels, operate the cheese-cutting machine or give the packages the water bath.

¶ 9. To facilitate performance of her duties, some physical modifications to the plant would be required. The main entrance had a three-inch lip on the threshold that would have to be altered, or a ramp would have to be provided. The sanitizer area, through which employees normally walked, would have to be modified for the wheelchair to pass through. At the time Catlin sought reinstatement, she did not need a restroom because she was using a catheter, but by the time of the hearing, Catlin required an accessible restroom.

¶ 10. LIRC found that Crystal Lake's refusal to alter Catlin's job responsibilities to exempt her from certain tasks constituted a denial of a reasonable accommodation. LIRC also determined that the refusal to make physical alterations was a denial of a reasonable accommodation. The trial court affirmed, and Crystal Lake appeals.

Standard of Review

¶ 11. We review the decision of LIRC, not the subsequent decision of a trial court. Target Stores v. LIRC, 217 Wis. 2d 1, 11, 576 N.W.2d 545 (Ct. App. 1998). We will affirm LIRC's findings of fact if they are supported by substantial evidence. Id. We give LIRC's interpretation of a statute varying degrees of deference depending on LIRC's obligations in administering the statute, its experience in doing so, and the nature of the determination it made. Id. at 13.

¶ 12. In Target, we determined that we would give great weight to LIRC's interpretation of "reasonable accommodation" under Wis. Stat. § 111.34(1)(b). Target, 217 Wis. 2d at 13. This is because LIRC was charged with adjudicating appeals from the hearing examiner under the WFEA; LIRC has developed experience in interpretation of the WFEA since it was enacted in 1981; our deference will promote greater uniformity and consistency than if we did not defer; the interpretation of "reasonable accommodation" is mixed with fact-finding; and the interpretation involves value and policy judgments about the employers and employees when an employee is handicapped. Id. Under the great weight standard of review, we will uphold LIRC's interpretation of the statute if it is reasonable and not contrary to the clear meaning of the statute, even if we conclude that another interpretation is more reasonable. Id. at 13-14.

¶ 13. Target notwithstanding, Crystal Lake urges us to adopt a de novo standard of review because it claims the issue before LIRC was one of first impression or, in the alternative, because LIRC's interpretation of the WFEA is inconsistent with prior interpretations. See UFE, Inc. v. LIRC, 201 Wis. 2d 274, 285, 548 N.W.2d 57 (1996). However, LIRC has interpreted "reasonable accommodation" many times before; the unique facts here do not necessarily make the question one of first impression. See McMullen v. LIRC, 148 Wis. 2d 270, 276, 434 N.W.2d 830 (Ct. App. 1988) (what is reasonable depends on the specific facts in each case). Further, we are not convinced LIRC's interpretation of the statute is inconsistent with previous decisions.

LIRC's Rejection of the ALJ’s Findings

¶ 14. We address this issue first because Crystal Lake claims its due process rights were violated when LIRC rejected some of the ALJ's factual findings. If LIRC improperly rejected the ALJ's findings, the factual underpinnings of this case would change and could require a different result.

¶ 15. Crystal Lake claims LIRC erred in three ways. First, it argues that LIRC improperly changed the ALJ's finding that Catlin "regularly" performed certain functions to a finding that she performed them "not... very frequently." Second, Crystal Lake claims LIRC erred when it rejected other determinations of the ALJ, "including the quality of Catlin's testimony concerning the job functions she believed she was able to perform." Finally, it argues that LIRC erred when it rejected the testimony of the operations manager regarding a $47,000 estimate for creating a wheelchair accessible restroom.

¶ 16. Even if LIRC chooses to substitute its credibility determination for that of the ALJ, this does not always constitute a due process violation. Hoell v. LIRC, 186 Wis. 2d 603, 613, 522 N.W.2d 234 (Ct. App. 1994). LIRC may reject the ALJ's recommendation in making its final decision, provided it consults the ALJ to determine his or her impressions of the credibility of witnesses and explains in a memorandum opinion why it disagreed with the ALJ. Id. However, as explained below, none of LIRC's "reversals" in this case was based on credibility of witnesses; we therefore decline to say LIRC was required to consult with the ALJ to make its factual determinations and we conclude that there was no error.

¶ 17. The ALJ found Catlin's duties were to prioritize orders and pass them on to the cutter; help label, weigh, price, and pack the cheese; and help load and move pallets. Also, the workers in the wholesale department regularly assisted each other. The ALJ then found that Catlin could perform some, but not all, of the duties for each position. The ALJ did not, however, make specific findings regarding which of the duties of her own position she could or could not perform, except to note only that Catlin could no longer retrieve cheese stored at high levels. The ALJ concluded that to accommodate Catlin, her duties would have to be modified so that even when she was acting as the cutter, she would not be required to retrieve the cheese. The ALJ concluded that this was not a reasonable accommodation.

¶ 18. Crystal Lake suggested at the hearing, and continues to maintain, that Catlin's inability to perform all the functions of all the positions "is reasonably related to [her] ability to adequately undertake the job-related responsibilities. . . ." See Wis. Stat. § 111.34(2)(a). In other words, Crystal Lake contended that a "reasonable accommodation" is one that permits a disabled employee to perform all job responsibilities. It does not include creating a new job by modifying or eliminating pre-disability job responsibilities. Thus, Crystal Lake argued that it had a statutory defense to the duty to reasonably accommodate. The ALJ apparently agreed with this interpretation.

¶ 19. LIRC, contrary to Crystal Lake's proffered interpretation, considered "reasonable accommodation" under Wis. Stat. § 111.34(l)(b) to include some modification to the job responsibilities of a handicapped employee unless the employer could show the modification would cause hardship. LIRC's rejection of the ALJ's conclusion goes to statutory interpretation, not credibility of witnesses. LIRC is not required to consult the ALJ before it overturns the ALJ's legal conclusions.

¶ 20. Additionally, LIRC found that Catlin could perform most of the duties in the department. However, the tasks LIRC specifically mentioned Catlin could not perform — lifting and cutting blocks of cheese and giving the packages a water bath — were duties assigned to the cutter and the cryovacer respectively. Despite the fact that Catlin filled in for these positions when needed, LIRC's statement that Catlin performed these duties infrequently does not directly contradict the ALJ, who specified no shared tasks.

¶ 21. LIRC's rejection of the $47,000 restroom estimate was appropriate as well. LIRC concluded first that, when Catlin sought reinstatement, she did not require a bathroom because she was using a catheter. Thus, the $47,000 could not have been an issue at the time Catlin asked to return to work. However, by the time of the administrative hearing, Catlin no longer needed the catheter and could use an accessible restroom. The only testimony regarding the amount was from an operations manager who testified that a contractor gave him that estimate. There is no written estimate for modifications in the record.

¶ 22. Administrative bodies are not bound by the same formal rules of evidence as the courts. See Wis. Stat. § 227.45. Neither side disputes that the manager's testimony about the estimate is uncorroborated hearsay. Crystal Lake argues that because Catlin did not object, the evidence became part of the record. See Schlichting v. Schlichting, 15 Wis. 2d 147, 160, 112 N.W.2d 149 (1961) (hearsay evidence received without objection becomes part of the evidence of the case and may be used as proof).

¶ 23. The ALJ's sole finding based on the estimate was, "[t]o accommodate Catlin's disability would require . . . the addition of a bathroom at an approximate cost of $47,000.00." LIRC accepted the amount of the estimate, but had to further consider the estimate in the context of hardship to the employer, something the ALJ never explicitly addressed. It is the function of the commission to weigh and draw inferences from the evidence. See William Wrigley, Jr. Co. v. DOR, 153 Wis. 2d 559, 571, 451 N.W.2d 444 (Ct. App. 1989). LIRC explained in its opinion that it ultimately discounted the estimate because the bathroom was irrelevant at the time Catlin sought reinstatement and because the record as a whole did not support a finding of hardship to Crystal Lake. LIRC did not improperly reject or overrule any of the ALJ's findings relating to the estimate, because the AL J never made a finding beyond the actual dollar figure.

Reasonable Accommodation and the Job

A. Statutory Requirements

¶ 24. In a handicap discrimination suit under the WFEA, the complainant must show (1) that he or she is handicapped within the meaning of the WFEA and (2) that the employer took one of the enumerated actions based on that handicap. Target, 217 Wis. 2d at 9. In this case, no party disputes that Catlin is handicapped or that Crystal Lake took an action based on her handicap.

¶ 25. Once the complainant makes those two showings, the employer then has a burden of proving a defense under Wis. Stat. § 111.34. Section 111.34(l)(b) does not require an employer to make even a reasonable accommodation if the accommodation will impose a hardship on the employer. However, if an employer refuses to reasonably accommodate and is not able to demonstrate that the accommodation would pose a hardship, the employer violates the WFEA. Target, 217 Wis. 2d at 9-10. Under § 111.34(2)(a), it is not a violation of the WFEA to take a specified employment action such as firing an employee if "the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment. . .

¶ 26. Wisconsin Stat. § 111.34(2)(a), however, does not indicate whether an individual's disability must be related to his or her ability to undertake "some," "most," or "all" of the job-related responsibilities. This leaves § 111.34 as a whole open to multiple interpretations, and LIRC and Crystal Lake suggest conflicting interpretations.

¶ 27. Crystal Lake's interpretation is that under Wis. Stat. § 111.34(2)(a), there is no job discrimination when an employer fires a disabled employee if the employee is no longer able to undertake all of the former job-related functions. Thus, Crystal Lake argues, a modification of job duties eliminating some of the employee's prior duties is per se an unreasonable accommodation under § 111.34(l)(b).

¶ 28. LIRC interprets Wis. Stat. § 111.34(2)(a) as not necessarily requiring an employee be able to perform all of the job-related functions, only some or most. As long as the employee can perform some of the job responsibilities, modification of the duties may be a reasonable accommodation that the employer should make. The burden therefore shifts back to the employer to demonstrate that the accommodation of modifying the job would create a hardship for the employer.

¶ 29. We are required to give great weight to LIRC's interpretation of the statute unless the interpretation clearly contradicts the plain meaning of the statute. See ¶ 12, infra. Because LIRC's reading of Wis. Stat. § 111.34 is not inherently contradictory to the statute's plain meaning, we accept its interpretation and reject the meaning advanced by Crystal Lake.

B. Discussion

¶ 30. LIRC accepted Catlin's testimony that she could perform nearly all the functions she did prior to her accident and found that Crystal Lake's refusal to modify Catlin's duties to exempt her from the heaviest physical tasks constituted a denial of a reasonable accommodation, which we conclude is an acceptable interpretation of Wis. Stat. § 111.34(1)(b). Crystal Lake nonetheless maintains (1) that a finding Catlin could perform nearly all of her former tasks is unsupported by the record and (2) that, even so, a modification to her position amounts to creating a new job and is an unreasonable accommodation. Crystal Lake also suggests that this "new job" would create a hardship for the factory. However, the evidence supports a finding that Catlin could perform most of her duties, and we are unconvinced that the accommodation LIRC suggests is unreasonable or likely to create a hardship for Crystal Lake.

¶ 31. Catlin testified about what she thought she could do and what she knew she could not. There is no testimony that refutes this, other than Johnson's report and a report prepared by Jeffrey Annis, a vocational rehabilitation specialist. Johnson's report, see ¶ 6 infra, was based only on the information that Catlin was in a wheelchair. Annis' report, slightly more illuminating, concentrated primarily on physical modifications that would be necessary, although it did note some limitations Catlin would have. Annis noted that Catlin would be unable to lift the forty-pound blocks of cheese and that she would be unable to operate the cutter. He indicated that the cryovac might be difficult to reach, and that the tables seemed too high for Catlin to work comfortably. Catlin only disputed that the tables would be too high, stating she had done her own measurements at home and felt comfortable working at the table height. Because Catlin's testimony as to her ability is primarily uncontroverted, it is substantial enough for LIRC to have relied upon it.

¶ 32. Catlin testified, and Crystal Lake never disputed, that when she started there was little or no cross-training. This suggests that performance of all tasks in all positions by all workers was not previously a requirement. Thus, if Catlin, as supervisor or department leader was unable to perform the functions of, for example, the cutter, exempting her from the cutter's function is not a novel idea.

¶ 33. Moreover, the testimony suggests that when things were busy or backed up, each of the workers did whatever they could to get the department back on track. In other words, the position-specific job functions were pooled and no longer attributable to any one individual or position. Given this pooling, we see no reason why, as LIRC suggests under Wis. Stat. § 111.34(l)(b), Crystal Lake could not implement a new arrangement that required the other workers to cover the tasks Catlin could not, rather than allowing the random coverage that repeatedly occurred.

¶ 34. Although Crystal Lake hints that a modification like the one LIRC suggested would create a hardship thus exempting it from any accommodation, we see nothing in the record to support this contention. Crystal Lake merely asserts that the production process would have been slowed down when the cutter and cryovacer would have to help Catlin with the physical tasks. But Crystal Lake does not explain the consequences of a slowdown in this instance. Conceivably, the slowdown could result in incomplete orders, decreased output, or a loss of revenue and clients. But Crystal Lake does not argue, much less demonstrate, that these would be the results of modifying Catlin's job.

¶ 35. Moreover, testimony indicated that each worker helped out "whenever needed." We see no reason why the help Catlin would need with some tasks would be any different from another worker requiring assistance when production became backed up or the worker needed to step out for a moment. Because Crystal Lake has not proven hardship, it established no defense under Wis. Stat. § 111.34(l)(b).

Reasonable Accommodation and the Physical Plant

¶ 36. The Crystal Lake plant would need modifications to make the buildings accessible, such as altering a three-inch lip at the main entrance, redesigning the walk-through sanitizer to allow the wheelchair through, widening the halls and changing room, and installing an accessible restroom.

¶ 37. While we acknowledge that costs of changing the physical plant may sometimes constitute a hardship, Crystal Lake has provided no evidence that the required alterations would create a hardship. The evidence submitted — the $47,000 estimate for the bathroom — was properly rejected by LIRC. Even assuming this estimate were allowed, Crystal Lake made no showing of revenue and costs that would give us a context in which to consider whether $47,000 would create a hardship. Because Crystal Lake offered no evidence to show that modifications to the physical plant would create a hardship, we affirm LIRC's conclusion that failure to modify the building violated the WFEA.

¶ 38. We decline to remand this case to give Crystal Lake the opportunity to show hardship. It chose to proceed on the legal theory that LIRC required it to create a new job and that this was unreasonable under the statute. It could have opted to present alternative evidence regarding hardship, but it did not. We will not remand merely because a party's trial strategy backfires. See State v. McDonald, 50 Wis. 2d 534, 538, 184 N.W.2d 886 (1971). The order of the circuit court upholding LIRC's decision is affirmed.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Crystal Lake disputes this. However, as explained in this opinion, we uphold LIRC's factual findings if supported by the record. See ¶¶ 11 and 30, infra.

       WISCONSIN Stat. § 111.34(1)(b) states:
      (1) Employment discrimination because of disability includes, but is not limited to:
      (b) Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.

       The ALJ apparently thought this constituted a hardship for Crystal Lake, but he did not make a formal factual finding that the cost was prohibitive.

       We reiterate that LIRC makes its determination of what constitutes a "reasonable accommodation" on the facts of each case. See ¶ 13, infra. Therefore, the result in this case does not necessarily create a broad rule for subsequent cases.