COURT OF APPEALS

DECISION

DATED AND FILED

December 11, 2019

Sheila T. Reiff

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. 2018AP1126 Cir. Ct. No. 2016CV417

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

WILLIAM SESING CONSTRUCTION, INC.,

 PLAINTIFF-APPELLANT,

 V.

AMERICAN BANK,

 DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Fond du Lac

County: PETER L. GRIMM, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2018AP1126

2

¶1 PER CURIAM. William Sesing Construction, Inc., (Sesing)1

appeals from a judgment dismissing its breach of contract and negligence claims 

brought against American Bank after Sesing’s bookkeeper embezzled funds from 

Sesing’s business checking account held by American Bank. Sesing argues that 

the circuit court erred in granting summary judgment insofar as it applied the 

Uniform Fiduciaries Act (UFA), WIS. STAT. § 112.01 (2017-18),2to Sesing’s

negligence claim, and by concluding that even without applying the UFA’s stricter 

standard, Sesing failed to set forth any materially disputed fact that would entitle it 

to relief. For the reasons that follow, we affirm. 

BACKGROUND

¶2 Sesing had two business accounts at American Bank. The first was a 

checking account. Checks drawn on that account had to be signed by William, 

Joyce Sesing (William’s wife), or Patrick Sesing (his brother). Denise Heffner 

joined Sesing in September of 2003. Over time, she assumed all bookkeeping 

duties, and in 2005, she was granted informational access to the checking account. 

Heffner was also responsible for making payments to company vendors and 

suppliers and for running payroll. William, Joyce, and Patrick were in the practice 

of pre-signing blank checks with the understanding that Heffner would later 

complete and distribute them. Heffner was allowed to print checks and did not 

provide account reconciliations. In short, Heffner handled the entire bookkeeping 

processes for Sesing, with minimal to no oversight from Joyce or William. 

 

1

 We refer to Sesing Construction, the business, as “Sesing,” and to William J. Sesing, 

the president of the business, by his first name.

2

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2018AP1126

3

¶3 The second Sesing business account held at American Bank was a 

money market account opened by William in 2010. He funded it with an initial 

deposit of $140,000 from the checking account. William and Joyce were the only 

authorized signers. Standard bank practices allowed funds to be transferred 

between the two accounts, and there was a policy for transfers by phone. When 

Sesing’s checking account was close to overdrawn, American Bank President Jim 

Chatterton or bank employee Gloria Stenz would call Sesing’s office and speak to 

Joyce or William about authorizing a transfer from the money market account to 

prevent an overdraft. Sesing could also initiate telephone transfers. According to 

American Bank’s policy, if a customer called in with a request to transfer funds, 

the bank employee recorded the name and account number and verified the 

caller’s identity by asking account-specific questions. 

¶4 In 2013, Sesing discovered that Heffner was embezzling funds from 

the checking account in at least two ways: (1) by writing blank checks signed by 

authorized signatories payable to herself, her family, or her creditors; and (2) by 

using her knowledge of the checking account information to initiate preauthorized 

withdrawals for the benefit of her creditors. Heffner was convicted of theft, 

sentenced to seven years in prison, and ordered to pay restitution. 

¶5 Sesing filed suit against American Bank seeking to recoup 

“approximately $229,700 in funds” transferred from the money market into the 

checking account by Heffner, who was not eligible to authorize the transfers. 

According to Sesing, there were about twenty-two times that Heffner authorized a

transfer from the money market to the checking account, and American Bank 

“failed to follow proper security protocol or ask any identifiable questions when 

transferring the funds.” Sesing alleged breach of contract and negligence.
No. 2018AP1126

4

¶6 American Bank filed an answer and affirmative defenses and then 

moved for summary judgment. As to the negligence claim, American Bank 

averred that Heffner acted in a fiduciary capacity for Sesing, and Sesing failed to 

show any evidence of bad faith as required by the UFA. See Koss Corp. v. Park 

Bank, 2019 WI 7, 385 Wis. 2d 261, 922 N.W.2d 20 (discussing application of 

“bad faith” under the UFA). With regard to breach of contract, American Bank 

argued that the undisputed facts failed to “establish a breach of the Sesing 

depository agreement” or “the causation of any damages,” given that the 

transferred funds were not removed from Sesing’s control. 

¶7 The circuit court granted summary judgment in favor of American 

Bank. With regard to the negligence claim, it concluded that Heffner was a 

fiduciary under WIS. STAT. § 112.01(1)(b), and that there were no facts showing 

the requisite “high degree of a deliberate failure to investigate suspicious 

circumstances” by the bank. The court went on to conclude that even if the UFA 

did not apply, summary judgment was warranted because Sesing had failed to 

show “proof of causation.” The circuit court also granted summary judgment on 

the breach-of-contract claim based on the “terms and conditions” of the parties’ 

account agreement. Sesing appeals. 

DISCUSSION

¶8 We review summary judgment decisions de novo, applying the same 

methodology as the circuit court. Palisades Collection LLC v. Kalal, 2010 WI 

App 38, ¶9, 324 Wis. 2d 180, 781 N.W.2d 503. Summary judgment “shall be 

rendered 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 facts and that the moving party is entitled to judgment as a matter 
No. 2018AP1126

5

of law.” WIS. STAT. § 802.08(2). Whether Heffner was a fiduciary under WIS.

STAT. § 112.01(1)(b) is a question of statutory interpretation and application which 

we review without deference to the circuit court. O’Connell v. O’Connell, 2005

WI App 51, ¶6, 279 Wis. 2d 406, 694 N.W.2d 429.

¶9 We quickly dispose of Sesing’s breach-of-contract claim, which 

appears to be that American Bank failed to abide by the terms of its depository 

agreement by allowing Heffner, an unauthorized person, to transfer funds from the 

money market into the checking account.3 To the contrary, the undisputed facts 

show that American Bank followed the agreement’s procedures by permitting 

account transfers only after the requesting party provided identity and account 

information. There is no suggestion in the record that American Bank employees 

knew that Heffner was impersonating Joyce Sesing. American Bank maintained 

records of such transfers for one year. Gloria Stenz could not recall any instance 

where a bank employee violated American Bank’s transfer policy. 

¶10 Turning to Sesing’s negligence claim, the parties disagree about the 

applicable standard. American Bank asserts that the UFA “bars bank customers 

from suing their banks in negligence” and instead predicates liability on a bad 

faith standard. According to American Bank, the stricter showing applies here 

because Heffner fits the statutory definition of a “fiduciary” under WIS. STAT.

§ 112.01(1)(b). Sesing disagrees, arguing that Heffner was not authorized to take 

 

3

 Sesing neglects to address this claim in its opening brief. Because the breach-ofcontract claim was decided in the circuit court and argued in American Bank’s respondent’s brief, 

we will briefly discuss and reject it. Further, Sesing’s two claims overlap in that both require a 

prima facie showing that American Bank’s breach caused Sesing to suffer an actual loss. We will 

discuss Sesing’s failure to show causation when we address its negligence claim. 
No. 2018AP1126

6

any action on the money market account and “[b]y definition, she was not a 

fiduciary ... [or] an officer on that account[.]” 

¶11 It is unnecessary for this court to determine the UFA’s applicability 

to the instant case because we conclude that American Bank is entitled to 

summary judgment even if Heffner is not a fiduciary. That is, even if the UFA 

does not apply, Sesing’s negligence claim still fails. 

¶12 The elements of a negligence claim are (1) a duty of care on the part 

of American Bank, (2) a breach of that duty, (3) a causal connection between 

American Bank’s breach and Sesing’s injury, and (4) an actual loss or damage as a 

result of the injury. See Lambrecht v. Estate of Kaczmarczyk, 241 Wis. 2d 804, 

817, 623 N.W.2d 751 (2001). Sesing fails to set forth any evidence that American 

Bank breached a duty of care in permitting the transfers from the money market to 

the checking account. As for duty, American Bank acted in accordance with its 

depository agreement, and there is nothing in the record to indicate it knew or 

should have known that Heffner was impersonating Joyce. It is undisputed that 

American Bank provided Sesing with printed monthly bank statements for both

the money market and the checking accounts. Sesing never alerted the bank to 

any irregularity and cannot identify any suspicious activity that should have come 

to the bank’s attention. In March 2013, after William alerted American Bank to 

Heffner’s possible embezzlement, the bank cooperated with all investigations. 

¶13 Similarly, Sesing has not shown that the transfer of funds from one 

Sesing account into another was the proximate cause of Sesing’s loss. Heffner did 

not write checks or directly withdraw funds from the money market account. 

Upon transfer into the checking account, the funds remained in Sesing’s control. 

Heffner’s embezzlement occurred vis a vis the checking account. 
No. 2018AP1126

7

¶14 Finally, Heffner engaged in an intentional scheme to steal from 

Sesing. She was able to manipulate the books and conceal her theft. If “account 

information” was requested, Heffner showed William and Joyce information on 

her computer without reference to the underlying bank statements. Sesing never 

requested a reconciliation, review, or audit by anyone, including Sesing’s outside 

accountant. Heffner’s criminal actions were the true cause of Sesing’s losses and 

her actions sever American Bank’s connection to any alleged damages. 

By the Court.—Judgment affirmed.

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

809.23(1)(b)5.