COURT OF APPEALS DECISION DATED AND FILED August 3, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
APPEAL
from an order of the circuit court for
¶1 BRUNNER, J.[1] Northern States Power Company d/b/a Xcel Energy, Inc., appeals an order dismissing its small claims action against Deborah Graupner to recover for damage to its equipment caused by Graupner’s minor daughter. We conclude we lack sufficient facts to determine whether the circuit court properly exercised its discretion, and therefore reverse and remand to the circuit court for additional factfinding.
¶2 On August 18, 2007, a vehicle driven by Graupner’s fifteen-year-old daughter crashed into an Xcel utility pole, causing $5,989.63 in damage. Graupner was uninsured and refused to pay for the repairs. Xcel then filed this small claims action.
¶3 Robert Italiano, a claims investigator who is not a licensed attorney, appeared at trial on Xcel’s behalf. After the circuit court scolded Italiano for asking Graupner, his first witness, about settlement discussions, the court stated it was “not going to waste any more time with this stuff.” It directed Italiano to provide legal authority for Xcel’s claim, but Italiano was unable to cite a specific statute. The circuit court then dismissed Xcel’s action with prejudice:
I know you are a lay person. We will dismiss it. You can step down. Maybe you can get an attorney to help you.
Northern States Power or Excel Energies [sic] has enough money that if it felt an attorney is needed they can get one. All right. Go back. They must have counsel or something. I asked how she is obligated for the damages of her daughter, and you didn’t show that.
¶4 Xcel did obtain counsel, as the circuit court directed, and filed a timely motion for reconsideration, which cited legal authorities purportedly establishing Graupner’s liability. The circuit court did not act on Xcel’s motion, which was consequently deemed denied after ninety days. See Wis. Stat. § 805.17(3).
¶5 We first address whether the circuit court properly directed
Xcel to obtain counsel. The circuit
court, not Graupner, raised the issue of Italiano’s competency, but failed to
conduct a complete analysis before dismissing Xcel’s claim. Ordinarily, a party need not be represented
by counsel in a small claims action. See Wis.
Stat. § 799.06(2). A
corporation, however, “is considered to be acting in … its own proper person if
the appearance is by a full-time authorized employee ….”
¶6 While the record establishes that Italiano is not an attorney, the circuit court failed to inquire whether he was a full-time Xcel employee authorized to prosecute Xcel’s action under Wis. Stat. § 799.06(2).[2] If Italiano was a full-time employee, and therefore capable of representing Xcel, the circuit court improperly dismissed Xcel’s claim. If Italiano was not, the circuit court properly dismissed Xcel’s claim for what was essentially a failure to appear.
¶7 We therefore reverse and remand for additional factfinding on Italiano’s employment status at the time of the small claims hearing. If on remand the circuit court determines Italiano is not a “full-time authorized employee” under Wis. Stat. § 799.06, it is directed to enter judgment in Graupner’s favor. If the circuit court determines Italiano is such an employee, it is directed to hold further proceedings to determine whether Graupner is liable under the authorities cited in Xcel’s reconsideration motion.[3]
¶8 We must also address one final issue. Xcel requests that we direct the circuit
court enter judgment against Graupner, claiming she is liable to Xcel as a
matter of law under Wis. Stat. § 895.035(2)(a). That statute imposes parental liability for
property damage caused by a minor child, but does so only for that damage
“attributable to a willful, malicious, or wanton act of the child.”
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The record does contain a document signed
by Xcel’s Vice President and Deputy General Counsel purporting to appoint
Italiano as an attorney-in-fact to “commence, prosecute, defend, satisfy or
settle any claim or cause of action” brought by or against Xcel in
[3] If Italiano is a “full-time authorized
employee” of Xcel, and therefore allowed to prosecute Xcel’s action under Wis. Stat. § 799.06(2), we
conclude the circuit court erroneously exercised its discretion by failing to
reconsider dismissal. By failing to
respond to authority under which Graupner could arguably be found liable, after
specifically requesting it, the circuit court did not provide Xcel an
opportunity to fairly present its claim.
See
[4] Citing First Bank Southeast, N.A. v.
Bentkowski, 138