COURT OF APPEALS DECISION DATED AND FILED October 7, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
2008AP1629 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Jennifer L. Fears and Brian Fears, Individually, and d/b/a Choices Family Education Services, S.C.,
Plaintiffs-Appellants, v. Ann Brill, Individually, and d/b/a Ann Brill, CPA,
Defendant-Respondent, John Doe Insurance Company, Defendant. |
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APPEAL
from a judgment of the circuit court for
Before
Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. Psychotherapist Brian Fears does business as Choices Family Education Services, S.C. (“Choices”). Choices, Brian Fears and his wife, Jennifer, (collectively, Fears) appeal from a summary judgment granted in favor of Ann Brill, a certified public accountant. Fears claimed that Brill was negligent and breached her fiduciary duty in performing her accountant responsibilities. We agree that Fears’ failure to provide expert testimony defeats his claims. We also agree that Fears’ and his attorney’s misrepresentations and dilatory conduct warrant Wis. Stat. § 802.05 (2007-08)[1] sanctions. We affirm.
¶2 Brill prepared Fears’ personal tax returns since 1994. In 1999, Fears retained her to help incorporate Choices and to assist as its accountant. In March 2007, Fears—acting pro se—filed suit against Brill. He alleged that Brill negligently performed her accounting duties and, as corporate treasurer, breached her fiduciary duty by failing to file tax forms for 2000 through 2003 and falsely representing that she had done so. He further alleged that Brill’s negligence was “unbeknownst” to him “until recently.” As a result, Fears alleged, the state and federal governments levied fees and penalties against him and Choices. Contending that Brill’s actions were malicious and in deliberate disregard of his rights, Fears also sought punitive damages.
¶3 Brill’s position is that she prepared the tax returns but was unable to file them because Fears provided incorrect financial information and was uncooperative with her many requests for accurate data. Brill also contends she could not prepare payroll tax returns because, after becoming aware of undelivered payroll checks, disputes between Fears and payees, and checks not clearing the bank, she was unsure of which payroll checks actually were delivered. Brill disputed Fears’ claim that he only recently learned that the returns had not been filed because she delivered the returns to him, prepared but unsigned, when she and Fears parted ways in 2003.
¶4 The litigation path was not smooth. Fears failed to respond to discovery requests, prompting a motion to compel. In the meantime, he retained Attorney Rebecca Gietman on June 28, 2007. Neither Fears nor Gietman appeared at the July 2 scheduling conference or advised that they would not appear. Fears’ discovery responses remained outstanding and the court entered an order to compel and to pay Brill’s attorney fees by August 24. Fears filed unsigned responses on August 27. He paid the ordered fees on September 18.
¶5 Fears named two expert witnesses, Thomas Dudley and Paul Lau.
The notice did not describe Dudley’s or Lau’s education, background or area of
expertise. It stated only that
¶6 Gietman did not comply with a written request to supply the reports. Brill filed a motion in limine to preclude the experts’ testimony, citing the missing reports and the difficulty contacting Gietman to confirm the experts’ availability for deposition.[2] A date for both depositions finally was set. On that day, shortly before the first was to start, Gietman informed the court reporter’s office that she would not be attending and the depositions should proceed without her. They did.
¶7 Dudley, an accountant who worked with Fears after Brill left,
testified that Gietman did not advise him about his role as an expert or what
opinions would be sought and had not prepared him for the deposition.
¶8 Similarly, Lau testified that someone from Gietman’s office contacted him only a week earlier to see if he would testify and just the day before informed him that the deposition was set. Gietman never spoke to him about the deposition or any analysis he should perform to prepare himself for it.[3] Despite the representation that he would opine as to Brill’s fiduciary duty, Lau testified that he understood the case dealt “mainly with payroll.” His sole criticisms of her were that “it appeared” that she was not filing certain payroll tax returns and unemployment forms in a timely manner. Asked whether he would prepare payroll tax returns if he did not know which employees were receiving payroll checks, Lau responded, “If I had a client like that, I would be gone.”
¶9 Brill moved for summary judgment and for Wis. Stat. § 802.05 sanctions. Her supporting affidavit recited that she could not file corporate and payroll tax returns due to the inaccurate financial information Fears provided, his uncooperativeness, the undelivered payroll checks and her lack of confidence in the records supplied to her. She asserted that sanctions were warranted because, besides the pattern of noncompliance, the complaint lodged baseless allegations, the experts’ opinions were falsely represented and, by not investigating, Gietman advocated the same misrepresentations.
¶10 Fears responded, late,[4]
to the summary judgment motion. He
asserted that Brill had oversight of and responsibility for all of Choices’
books and that he was “intensely shocked” by
¶11 The court concluded that summary judgment was proper because, given Brill’s defense, Fears’ allegations required, but lacked, expert testimony. It also granted the motion for sanctions and ordered that Gietman and Fears reimburse Brill her reasonable attorney fees incurred after October 1, 2007, the date the experts’ reports were due per the scheduling order and, thus, the date Gietman should have been aware of Dudley’s and Lau’s opinions. Fears appeals.
¶12 On appeal, Fears first argues that summary judgment was improper because factual issues exist as to the skill, judgment and care required of a reasonable accountant to prepare and timely file tax returns and payroll taxes and of a corporate treasurer to handle in good faith the corporation’s financial affairs. He contends that those matters fall within the ken of the average layperson and do not require expert testimony. He also contends that if the question is not whether Brill filed the forms but why she did not, then the issue is one of credibility, which should be put to a jury.
¶13 We review summary judgments de novo, using the same
methodology as the circuit court. Green
Spring Farms v. Kersten, 136
¶14 Here, the circuit court determined that Fears’ complaint stated claims for negligence and breach of fiduciary duties and that Brill’s submissions established the defense that she was unable to prepare the tax forms because she was provided inaccurate financial information. The court concluded that expert testimony was required to establish a CPA’s duty under such circumstances.
¶15 Whether expert testimony is necessary in a given situation is a
question of law. Grace v. Grace, 195
¶16 Fears also argues that Wis.
Stat. § 802.05 sanctions were unwarranted. He contends that the circuit court
erroneously concluded that no investigation was done before the experts were
named. Determining what and how much
investigation was done is a question of fact.
Belich v. Szymaszek, 224
¶17 Brill sought sanctions for misrepresentations in the complaint and in the naming of experts. The court deemed the lack of honesty in the complaint superfluous and insignificant to the gist of the claims. It felt differently about the experts, however. The court found that Gietman failed to establish their qualifications or summarize their testimony and that, because Gietman had no contact with them to speak of, neither expert “had any clue” what was expected of them at deposition. The court also found that the failure to submit the required reports unnecessarily lengthened the litigation. These findings, coupled with “the careless history of this prosecution,” convinced the court that Fears and Gietman had run afoul of Wis. Stat. § 802.05(2)(c)[5] and that an order was warranted directing Gietman and Fears to pay any reasonable attorney fees incurred since the date that the expert reports were due.
¶18 The circuit court’s findings are not clearly erroneous. Gietman argued at the motion hearing that she
was “not able” to talk to Lau about being an expert witness but that Fears
spoke with both Lau and Dudley. She also
told the court that Fears had done “a lot of this legwork” prior to her being
retained in June 2007. An attorney may
not simply rely on his or her client’s word, however. Belich, 224
¶19 Furthermore, resting on Fears’ earlier “legwork” does not explain Gietman’s and/or Fears’ failure to appear at the July scheduling conference, submit expert reports or attend the depositions. It also does not explain why Gietman did not take advantage of the twenty-one-day “safe harbor” opportunity to correct the offending matter. See Wis. Stat. § 802.05(3)(a)1.; see also Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶27, 302 Wis. 2d 299, 735 N.W.2d 1. Awarding reasonable attorney fees was a proper exercise of discretion.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless noted.
[2] The affidavit Brill’s counsel filed in support of the motion averred that faxes would not go through due to “poor line connection,” telephone calls to Gietman’s office were not answered, and messages could not be left because the voice mailbox was “full.”
[3] Lau’s professional background is not clear. He testified that he and Fears “barter” their services, Lau helping Fears with his books in exchange for Fears providing Lau free psychotherapy to address post-Vietnam issues.
[4] Gietman
defended the tardy filing in an unnotarized “affidavit” in support of the
memorandum of law opposing summary judgment.
Signed but unnotarized “affidavits” merit no consideration. See
Wisconsin
Hosp. Ass’n v. Natural Resources Bd., 156
[5] Wis. Stat. § 802.05(2)(c) provides:
(2) Representations to Court. By presenting to the court, whether by signing, filing, submitting, or later advocating a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following:
….
(c) The allegations and other factual contentions stated in the paper have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.