COURT OF APPEALS

DECISION

DATED AND FILED

December 6, 2023

Samuel A. Christensen

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 No. 2023AP1038 Cir. Ct. No. 2022SC1115

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

DANIELLE S. HUMSKI,

 PLAINTIFF-RESPONDENT,

 V.

OSHKOSH WELLNESS CENTER, RACHELLE LAUX AND JEFF SCHERER,

 DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Winnebago

County: TERESA S. BASILIERE, Judge. Affirmed. 

¶1 LAZAR, J.1 Oshkosh Wellness Center (“OWC”), Rachelle Laux,

and Jeff Scherer (collectively “Appellants”) appeal from a judgment entered 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2021-22). 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP1038

2

against them in favor of Danielle S. Humski. The trial court held that Appellants 

were liable under the doctrine of respondeat superior for certain payments Humski

made to their employee for treatment at their clinic that were actually, according to 

Appellants, stolen by that employee. For the reasons that follow, this court 

affirms.

¶2 Laux and Scherer are married to one another and are co-owners of 

OWC. Humski received counseling services from OWC over twenty-two months 

from 2019-21. Humski asserts that she paid $9,000 to the Appellants in cash and 

credit card payments over this time period.2 Humski made these “down 

payments” to Katie Niemuth, the front desk “secretary” of OWC to whom Humski 

says she was directed (by Laux) for making such payments. Scherer confirmed 

that Niemuth was indeed “trusted with the billing, ... trusted with the money.” 

According to Scherer, neither he nor his wife ever handled the money in the clinic. 

¶3 At some point, Humski learned that her insurance company had been 

over-billed for treatment from OWC; in some cases, the insurance company was 

billed for family members that never even went to the clinic. Immediately after

Humski called the clinic to ask questions about a denial of coverage by her 

insurance company, Scherer called her back and sought her cooperation in 

investigating Niemuth, who, he asserts, probably stole any cash that came in. As 

for Humski’s credit card payments, Scherer testified that Niemuth used a Square 

account that she opened in the name of OWC to take those payments; according to 

Scherer, the clinic did not use Square, and “that’s how [Niemuth] did the 

 

2

 Humski’s insurance company also made payments for these services—and for some 

appointments that never happened—totaling over $90,000. 
No. 2023AP1038

3

insurance fraud.” The actual legal name of the business, he testified, is Oshkosh 

Counseling Center Inc.—although most of the “statements” Humski received from 

the clinic and produced at trial are from “RaChelle Laux,”

3

the “route slips” filled 

out by the clinic detailing treatment given and a receipt for products purchased 

from the clinic show the name “Oshkosh Counseling Wellness Center,” and 

letterhead from the clinic refers to “Oshkosh Counseling Wellness Center” as “A 

Division of Oshkosh Counseling Center, Inc.” Humski claims that when she 

declined Scherer’s invitation to cooperate with him against Niemuth, all of her 

appointments were canceled. 

¶4 Humski brought a claim against Appellants seeking recovery of 

$8,000.

4

 In their answer, Appellants asserted as their sole defense that they “never 

told Danielle Humski to pay cash to anyone” and that they “never saw” payments

given to Niemuth, who was “being charged for theft.” After Humski and Scherer 

testified at trial as summarized above, Scherer called an employee who worked 

alongside Niemuth at the front desk as his witness. She confirmed that the clinic 

never used Square for billing, stated that “monthly billing was a mess,” and 

discussed some of the procedures at the front desk and the fact that she did not 

trust Niemuth. Finally, Humski called her mother, who testified that she had been 

present when Humski discussed cash payments for counseling services with Laux 

and had heard Laux tell Humski to “take [cash] to Katie at the front desk and Katie 

would know how to process that.” 

 

3

 These statements show charges, the amount of insurance checks, and an amount due, 

which was to be paid, apparently, to Laux at the clinic’s address. 

4

 It is unclear why Humski sought $8,000 in her complaint when she testified that she 

made payments to Niemuth totaling $9,000.
No. 2023AP1038

4

¶5 Noting the evidence the parties had presented regarding the 

Department of Justice’s investigation of Niemuth, the trial court stated its belief 

that Niemuth had engaged in “criminal behavior.” It then held Appellants liable 

for $6,000 (the amount of payments to Niemuth that Humski had proved to the 

court’s satisfaction) under the doctrine of respondeat superior. Under this 

centuries-old doctrine, “a supervisory party (such as an employer) bears [vicarious 

liability] for the actionable conduct of a subordinate or associate (such as an 

employee) because of the relationship between the two parties.” Kerl v. Dennis 

Rasmussen, Inc., 2004 WI 86, ¶17, 273 Wis. 2d 106, 682 N.W.2d 328 (quoting 

BLACK’S LAW DICTIONARY 927 (7th ed. 1999)).

¶6 Appellants raise four issues on appeal. The first three concern the 

identities of the Appellants as they relate to each other and to Niemuth—

appellants assert that the trial court erred: 1) in holding Laux and Scherer liable 

because no evidence showed that Niemuth was employed by them in their 

personal capacities; 2) in applying the doctrine of respondeat superior against 

Laux and Scherer as opposed to against Niemuth’s employer; and 3) in holding 

OWC liable when Niemuth’s actual employer is Oshkosh Counseling Center, Inc. 

Finally, they assert that respondeat superior is inappropriate because Niemuth’s 

actions constituted an intentional tort rather than negligence and because Niemuth 

was not acting within the scope of her employment when she stole Humski’s 

money. 

¶7 This court upholds the trial court’s findings of fact unless they are 

clearly erroneous. Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 

575 (Ct. App. 1983). A finding is not clearly erroneous if it is supported by 

evidence in the Record. State v. Gammons, 2001 WI App 36, ¶9, 241 Wis. 2d 

296, 625 N.W.2d 623. “An appellate court is not bound by a trial court’s 
No. 2023AP1038

5

conclusions of law,” however, and reviews legal issues de novo. City of Muskego 

v. Godec, 167 Wis. 2d 536, 545, 482 N.W.2d 79 (1992).

¶8 The trial court’s finding that Laux and Scherer employed Niemuth—

a finding the court necessarily had to make to hold Laux and Scherer personally 

liable for money Humski gave to Niemuth—is not clearly erroneous. See Kerl, 

273 Wis. 2d 106, ¶18 (“A prerequisite to vicarious liability under respondeat 

superior is the existence of a master/servant relationship.”). Evidence supporting 

this finding includes billing statements bearing Laux’s personal name (and no 

corporate name of any kind) and Scherer’s trial testimony, in which he stated “I 

think I did” in response to the court’s question as to who hired Niemuth. Thus, 

this court affirms the trial court with respect to the personal liability of Laux and 

Scherer. Notably, the Appellants did not contest these issues at trial or argue that 

Laux and Scherer did not employ Niemuth.

¶9 Likewise, with respect to the third issue they raise on appeal,

Appellants did not argue before the trial court that Humski had sued the wrong 

corporate entity or move to dismiss her claim on that basis. See Gibson v. 

Overnite Transp. Co., 2003 WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388 

(“Generally, we will not consider on appeal arguments not made to the trial 

court.”). Scherer stated only that he “hope[d] [the name of the corporation would 

be] corrected on the record, because it’s Oshkosh Counseling Center Inc.” To that 

end, Appellants actually identified “Oshkosh Counseling Center In[c.]” as one of 

the defendants in their answer. Where, as here, a “misnomer or misdescription 

does not leave in doubt the identity of the party intended to be sued,” a court could 

amend the judgment in the interests of justice if necessary; but there are no 

grounds for reversal. See Hoesley v. La Crosse VFW Chapter, 46 Wis. 2d 501, 
No. 2023AP1038

6

502-03, 175 N.W.2d 214 (1970) (affirming denial of motion to dismiss based on 

complaint erroneously referring to defendant corporation by the wrong name).

¶10 Having determined that the trial court did not clearly err in its factual 

findings regarding the identities of the Appellants or their relationships to one 

another, this court turns to the legal question of whether respondeat superior can 

apply to impose vicarious liability on employers for intentional criminal acts of 

their employees and not just for negligent acts. Appellants are wrong in asserting 

that it cannot. In Ripon Knitting Works v. Railway Express Agency, Inc., for 

example, an employer was liable for the intentional (and criminal) fraud 

committed by its employee. 207 Wis. 452, 240 N.W. 840 (1932). While 

Appellants cite several cases dealing with vicarious liability of an employee for 

negligence, e.g., Scott v. Min-Aqua Bats Water Ski Club, Inc., 79 Wis. 2d 316, 

320, 255 N.W.2d 536 (1977), they cite none standing for the proposition that 

respondeat superior applies only in cases of negligence. See id. (quoting 

RESTATEMENT (SECOND) OF AGENCY § 219(1) (1957), which says “[a] master is 

subject to liability for the torts of his servants committed while acting in the scope 

of their employment” and not distinguishing between intentional torts and 

negligence (emphasis added)).

¶11 Finally, Appellants argue that they can only be liable for Niemuth’s 

actions “within the scope of [her] employment” and that Niemuth’s theft for her 

own benefit cannot “logically or fairly be said to be part of [her] duties” with the 

clinic. Cases to which Appellants point stand for the proposition that 

“consideration must be given to whether the employee was actuated, at least in 

part, by a purpose to serve the employer.” See, e.g., Olson v. Connerly, 156 

Wis. 2d 488, 500, 457 N.W.2d 479 (1990). There are Wisconsin cases in which 

an employer was not liable for the actions of an employee as a matter of law 
No. 2023AP1038

7

because the employee’s conduct was not arguably connected to what the employee 

was hired to do and there was no evidence to the contrary. In Block v. Gomez, 

201 Wis. 2d 795, 807, 549 N.W.2d 783 (Ct. App. 1996), for example, a clinic was

not liable for damages resulting from the sexual relationship between one of its 

counselors and a patient because the counselor’s actions in entering the sexual 

relationship could not, under any circumstances, be viewed as falling within the 

scope of his employment with the clinic. See also L.L.N. v. Clauder, 203 Wis. 2d 

570, 589, 552 N.W.2d 879 (Ct. App. 1996) reversed in part by 209 Wis. 2d 674 

(stating that employee’s conduct is not within the scope of employment if it is 

different in kind from authorized conduct or insufficiently driven by a purpose to 

serve the employer).

¶12 But whether an employee was acting in the scope of employment in 

committing the actionable conduct is usually a factual question, Block, 201 

Wis. 2d at 804, and this court concludes that the trial court did not err in holding 

that Niemuth acted in the scope of employment when taking money from Humski. 

There is ample evidence supporting the finding that taking payments from 

customers was part of Niemuth’s job; by Scherer’s admission, she was hired to 

take payments and “handle money.” Indeed, this case presents facts very similar 

to those in Ripon Knitting Works, in which an employee fraudulently took and 

kept portions of payments from a customer and our supreme court stated:

It seems too plain for argument that what [the employee]

did he did within the scope of his authority as a ... 

collection agent of the defendant. It is true that the 

defendant never expressly authorized [the employee] to 

make fraudulent misrepresentations. It is equally true that 

[the employee] made these for his own benefit and that the 

defendant did not profit thereby. If these facts constituted a 

defense in law, no principal would ever be liable for 

fraudulent misrepresentations unless the principal had 

authorized or ratified it. [The employee’s] authority was to 

collect express charges. When [the customer] paid him 
No. 2023AP1038

8

money ..., he was acting precisely in all respects as if 

authorized to do so, and, relying upon the 

misrepresentations, the money was paid to him and the 

company’s receipt taken therefor.

207 Wis. at 457. The court went on to state that “in cases of this kind care must be 

exercised to distinguish between authority to commit a fraudulent act and 

authority to transact business in the course of which the fraudulent act is 

committed.” Id. at 459. In cases where the latter is proven, as it was in Humski’s 

case, an employer is “liable without fault on his part.” See id.

¶13 Appellants did not present any defense that the money paid by 

Humski was owed to the clinic and that Niemuth stole from the clinic, not 

Humski. Nor did Humski appeal the amount of the trial court’s award or present 

this court with a reason she should have been awarded the full amount of her loss. 

Under these circumstances, for the foregoing reasons, the judgment of the trial 

court must be affirmed.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.