author: SNYDER, J.

text:
    Secura Insurance and Stevenson's Trendsetters, Inc., Plaintiffs-Appellants, v. Labor and Industry Review Commission and Dale Rice, Defendants-Respondents.
    Court of Appeals

      No. 00-0303.

      Submitted on briefs July 31, 2000.

    Decided September 13, 2000.

    2000 WI App 237
    (Also reported in 619 N.W.2d 626.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Mark P. McGillis and Richard A. Fortune oí Richard A. Fortune & Associates, S.C. of Racine.
    On behalf of the defendant-respondent Labor and Industry Review Commission, the cause was submitted on the brief of Lowell E. Nass, assistant attorney general, and James E. Doyle, attorney general. On behalf of the defendant-respondent Dale Rice, the cause was submitted on the brief of David A. Hudec of Gray, Hudec & Oleniczak, L.L.P. of East Troy.
    Before Brown, P.J., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Stevenson's Trendsetters, Inc. and its insurer, Secura Insurance, appeal from a Labor and Industry Review Commission (LIRC) decision awarding Dale Rice permanent total disability worker's compensation benefits under Wis. Stat. § 102.44(2) (1997-98). Rice's claim for § 102.44(2) lifetime benefits included both a scheduled injury to his left foot and a nonscheduled injury to his lower back. Secura contends that only the nonscheduled injury can support lifetime benefits under § 102.44(2) and that Rice failed to adequately separate his scheduled and unscheduled injuries; therefore, Rice failed to establish that his permanent total disability was caused by his unscheduled injury. We conclude that § 102.44(2) lifetime benefits are warranted with a combination of scheduled and unscheduled injuries where the applicant establishes that a clear, ascertainable portion of the total disability is attributable to the unscheduled injury or injuries. We therefore affirm the LIRC decision and circuit court order.

BACKGROUND

¶ 2. Rice was injured on December 15, 1993, while working as a room installer for Stevenson's Trendsetters. Rice was injured when concrete leaked into his work boots, causing chemical bums to both of his feet. While the bums themselves eventually healed, they caused persistent, disabling pain in Rice's left foot. As a result of this disability, Rice developed difficulties with his gait, which produced musculoskeletal complications in his lower back. These complications have been diagnosed alternatively as reflex sympathetic dystrophy and/or complex regional pain syndrome. Rice continues to suffer from pain in his lower left extremity, low back and right shoulder, and experiences severe headaches.

¶ 3. Rice initially brought a claim for permanent partial disability benefits. It was found that Rice suffered from an 8% permanent partial disability because of the injury to his left foot and a 2% permanent partial disability because of the injury to his back. Rice then brought a claim for loss of earning capacity for permanent total disability under Wis. Stat. § 102.44(6). A hearing was held on March 25, 1998, and on July 10, 1998, an ALJ awarded Rice permanent and total disability benefits.

¶ 4. Secura appealed to LIRC. In a memorandum opinion issued on February 26, 1999, LIRC affirmed the findings and order of the ALJ. Secura appealed to the circuit court on March 23, 1999. The circuit court affirmed LIRC's decision in a written decision on November 29, 1999, and in an order on December 10, 1999. Secura appeals this order.

WORKER'S COMPENSATION FOR PERMANENT DISABILITY

¶ 5. Wisconsin worker's compensation benefits are principally governed by the Worker's Compensation Act (the Act), which is administered by the Department of Workforce Development (DWD). See Mireles v. LIRC, 2000 WI 96, ¶ 6, 237 Wis. 2d 69, 613 N.W.2d 875. The Act appears in ch. 102 of the Wisconsin Statutes and sets forth an intricate formula for initiating worker's compensation benefits; the Act is designed to compensate workers injured in the course of their employment. See Mireles, 2000 WI 96 at ¶¶ 6-7. Benefits payable under the Act are categorized as either temporary disability benefits or permanent disability benefits. See id. at ¶ 7.

¶ 6. Permanent disability benefits are divided into two separate categories: compensation for scheduled injuries and compensation for unscheduled injuries. See id. at ¶ 9. Scheduled injuries are set forth in Wis. Stat. § 102.52 and require the payment of benefits for a specific number of weeks as outlined in the statute. The schedules set forth in § 102.52 presume that a worker has lost an entire body part. See Mireles, 2000 WI 96 at ¶ 10. If a worker suffers a lesser injury, the worker is compensated based on how the injury compares to a complete loss of the body part. See Wis. Stat. § 102.55(3); see also Mireles, 2000 WI 96 at ¶ 10. Wisconsin Stat. § 102.53 compels increases of awards for particular combinations of permanent disabilities. Scheduled injury benefits presumably include compensation for an injured worker's loss of earning capacity. See Mireles, 2000 WI 96 at ¶ 11.

¶ 7. Numerous injuries are not included in the statutory schedules. See id. at ¶ 13. These unscheduled injuries, predominantly injuries to the torso and head as well as mental injuries, typically require a more individualized assessment than scheduled injuries. See id. Back injuries are considered unscheduled injuries. See id. Permanent total disability because of an unscheduled injury or injuries results in lifetime benefits. See Wis. Stat. § 102.44(2); see also Mireles, 2000 WI 96 at ¶¶ 14, 54.

¶ 8. With this as necessary background information, we now turn to the specifics of Secura's appeal.

DISCUSSION

¶ 9. Wisconsin Stat. § 102.23 addresses judicial review of worker's compensation claims and states in relevant part:

(l)(a) The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive. The order or award granting or denying compensation, either interlocutory or final, whether judgment has been rendered on it or not, is subject to review only as provided in this section and not under ch. 227 or s. 801.02....
(6) If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.

¶ 10. This case requires the interpretation of Wis. Stat. § 102.44 as applied to a set of uncontested facts. "Where the statutory language is clear, no judicial rule of construction is permitted, and we must arrive at the intent of the legislature by giving the language [of the statute] its ordinary and accepted meaning." Threshermens Mut. Ins. Co. v. Page, 217 Wis. 2d 451, 458, 577 N.W.2d 335 (1998) (citation omitted). While the interpretation and application of statutes is normally a question of law for the courts, see id., an equally important principle is deference that may be due to an administrative agency in recognition of the agency's expertise and experience. See Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 760, 569 N.W.2d 726 (Ct. App. 1997). The mid-level "due weight" deference is appropriate when the agency's expertise in interpreting a statute is no better than that of a court, but the agency does have knowledge and skill in the area, the legislature has charged the agency with the enforcement of the statute in question and the agency's interpretation is equally reasonable to any other interpretation. See id. at 762-63 (citations and footnote omitted). We are satisfied that due deference is appropriate here and agree with LIRC's interpretation of § 102.44 and the application of the statutory language to the known facts.

¶ 11. Rice seeks benefits based upon a combination of scheduled and unscheduled injuries under Wis. Stat. § 102.44(2), which grants lifetime benefits to workers who are permanently and totally disabled. The essence of Secura's argument on appeal attacks the sufficiency of the evidence supporting the award of § 102.44(2) benefits. Secura argues that the evidence fails to adequately distinguish between Rice's scheduled and nonscheduled injuries, and that the evidence fails to establish that Rice's nonscheduled injury caused his permanent and total disability. Secura further argues that Rice must dichotomize between scheduled and unscheduled injuries and must clearly demonstrate that the unscheduled injury alone prevents his return to work. Secura misunderstands the appropriate standard.

¶ 12. Wisconsin Stat. § 102.44(2), the statute under which Rice seeks benefits, must be read in context with the rest of the Act. See Mireles, 2000 WI 96 at ¶ 56. WISCONSIN Stat. § 102.43, entitled "Weekly compensation schedule," provides directions about the payment of benefits and covers partial, temporary and permanent disabilities. Section 102.44 limits § 102.43; subsec. (2) of § 102.44 provides:

In case of permanent total disability aggregate indemnity shall be weekly indemnity for the period that the employe may live. Total impairment for industrial use of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department shall find the facts.

Sec. 102.44(2).

¶ 13. Wisconsin Stat. § 102.44(2) lists several combinations of scheduled injuries that constitute permanent total disability but also concludes: "This enumeration is not exclusive, but in other cases the department shall find the facts." Id. (emphasis added). In Mireles, the Wisconsin Supreme Court concluded that the "other cases" of permanent total disability could include a combination of scheduled and unscheduled injuries. See Mireles, 2000 WI 96 at ¶¶ 59, 71. Therefore, an applicant with both scheduled and unscheduled injuries can seek lifetime benefits under § 102.44(2).

¶ 14. Wisconsin Stat. § 102.44(4) states that "[wjhere the permanent disability is covered by ss. 102.52, 102.53 and 102.55, such sections shall govern ...." Therefore, Wis. Stat. §§ 102.52, 102.53 and 102.55 must be examined to determine if they govern an applicant's claim instead of § 102.44. See Mireles, 2000 WI 96 at ¶ 60.

¶ 15. Wisconsin Stat. § 102.52 is the "Permanent partial disability schedule" and contains the full list of scheduled injuries. See Mireles, 2000 WI 96 at ¶ 60. A claim for permanent total disability with unscheduled injuries is not covered by § 102.52 because § 102.52 is for scheduled injuries. See Mireles, 2000 WI 96 at ¶ 60.

¶ 16. Wisconsin Stat. § 102.53 relates to "Multiple injury variations." Its introductory clause begins: "In case an injury causes more than one permanent disability specified in ss. 102.44 (3), 102.52, and 102.55 ...." Section 102.53. Referenced Wis. Stat. § 102.44(3) pertains to permanent partial disability, not to total disability. See Mireles, 2000 WI 96 at ¶ 61. Both referenced Wis. Stat. §§ 102.52 and 102.55 deal exclusively with scheduled injuries and combinations of scheduled injuries, not unscheduled injuries. See Mireles, 2000 WI 96 at ¶ 61.

¶ 17. Based on the foregoing analysis, the Míreles court concluded that Wis. STAT. §§ 102.52, 102.53 and 102.55 do not cover a claim for permanent total disability based upon a combination of scheduled and unscheduled injuries. See Mireles, 2000 WI 96 at ¶ 63. The court found that Míreles could qualify for permanent total disability benefits under Wis. Stat. § 102.44(2) based upon the combination of her scheduled and unscheduled injuries if she could prove such disability to DWD. See Mireles, 2000 WI 96 at ¶ 71. Here, we have a situation virtually identical to Míreles— an application for permanent total disability under § 102.44(2) based upon a combination of unscheduled and scheduled injuries. Consequently, we must arrive at the same conclusion for Rice.

¶ 18. Secura relies heavily on Langhus v. LIRC, 206 Wis. 2d 494, 557 N.W.2d 450 (Ct. App. 1996). Langhus does not support the arguments Secura submits to this court.

¶ 19. In Langhus, the applicant claimed permanent total disability based on back, leg and shoulder injuries. See id. at 497. LIRC deified Langhus's claim for permanent total disability benefits because he could not demonstrate what portion of his disability could be attributed to his unscheduled back injury. See id. at 507. The Langhus court noted that

LIRC's interpretation does not preclude a claimant who can prove total disability, stemming from both scheduled and unscheduled injuries, from receiving lifetime benefits. Section 102.44(2), STATS., specifically provides that certain combinations of scheduled injuries are deemed to constitute permanent total disability. In other, situations, DWD is directed to "find the facts." There is no reason, therefore, that a claimant with both scheduled and unscheduled injuries could not establish facts that would allow LIRC to award benefits for permanent total disability under § 102.44(2). The burden of making that showing, however, rests on the claimant.

Id. at 505-06 n.9.

¶ 20. Langhus was not overruled by Mireles, and, in fact, the Mireles court determined that it had reached the same conclusion as Langhus. See Mireles, 2000 WI 96 at ¶ 63. The Míreles court stated that in Langhus, "[presumably, LIRC wanted Langhus to show that his disability was caused in part by an unscheduled injury, so that compensation for loss of earning capacity was not awarded for an injury caused either significantly or wholly by a scheduled injury." Mireles, 2000 WI 96 at ¶ 68. The Mireles court noted that LIRC acted within its authority by placing the burden on the applicant to establish that an ascertainable portion of the total disability was attributable to an unscheduled injury. See id.

¶ 21. A review of the record here indicates that Rice has established that a clear, ascertainable portion of his injury is attributable to an unscheduled injury. The circuit court's well-reasoned and well-supported decision accurately sets forth the appropriate analysis and cites ample evidence of the debilitating effects of Rice's unscheduled injury.

¶ 22. Again, "[t]he findings of fact made by the commission acting within its powers shall... be conclusive." Wis. Stat. § 102.23(l)(a). At the hearing before the AU, Dr. Jeffrey Fitzhum, Rice's doctor, discussed in detail the pain syndrome which affects Rice's entire body. Rice has been diagnosed with reflex sympathetic dystrophy and/or complex regional pain syndrome, a progressive disease characterized by pain out of proportion to the injury. According to Fitzhum, complex regional pain syndrome "involves the central nervous system and changes how the nervous system processes incoming information." Fitzhum testified that "[t]he most typical progression [of complex regional pain syndrome] is a proximal spread of symptoms with increasing distance from the original site of injury looking more and more like musculoskeletal complaints." The pain syndrome persists indefinitely. Fitzhum testified that this disease presents itself in Rice with foot pain, radiating into his back and neck. Rice's back problems are specifically concentrated in his "right greater trochanter and region of the gluteus medius," or his low back area. The lower back pain appears to be muscular in nature. Severe frontal and suboccipital headaches are also a persistent problem for Rice. Fitzhum testified that Rice's lower back problems resulted from his change in gait because of his inability to put weight on his left foot. Fitzhum testified that the entire pain complex disables Rice and causes low back pain; Fitzhum further testified that the back problem is "clearly related to a reasonable degree of medical probability to complex regional pain syndrome." Fitzhum also testified that Rice took substantial amounts of pain medication with side effects including sedation, constipation, nausea, itching and dizziness. Fitzhum stated that as a result of complex regional pain syndrome, Rice was physically restricted to perform no more than four hours per day of less than sedentary work.

¶23. Fitzhum's testimony established that an ascertainable portion of Rice's injury is attributable to his unscheduled back injury. By adopting and upholding the findings of the ALJ, LIRC found Fitzhum's opinion to be both credible and substantial. Our role is to review the record to locate credible and substantial evidence that supports the commission's decision, not to weigh the opposing evidence. See Vande Zande v. DILHR, 70 Wis. 2d 1086, 1097, 236 N.W.2d 255 (1975). Here, there is credible and substantial evidence supporting LIRC's decision.

¶ 24. In sum, pursuant to Mireles and Langhus, Rice is entitled to Wis. Stat. § 102.44(2) lifetime benefits for a combination of scheduled and unscheduled injuries because he has established that a clear, ascertainable portion of his disability is attributable to his unscheduled back injury.

CONCLUSION

¶ 25. Pursuant to Wis. Stat. § 102.44(2), permanent total disability can be awarded because of a combination of scheduled and unscheduled injuries, provided the applicant establishes that a clear, ascertainable portion of the total disability is attributable to the unscheduled injury or injuries. Here, Rice has done so. The circuit court's order is affirmed.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.


source: Caselaw Access Project

author: EICH, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Mark Shimkus, Petitioner-Appellant, v. Kenneth Sondalle, Warden, Fox Lake Correctional Institution, Respondent-Respondent.
    Court of Appeals

      No. 00-0324.

      Submitted on briefs June 23, 2000.

    Decided September 14, 2000.

    2000 WI App 238
    (Also reported in 620 N.W.2d 409.)

      Before Eich, Vergeront and Roggensack, JJ.
   EICH, J.

¶ 1. Mark Shimkus, an inmate of the Fox Lake Correctional Institution, appearing pro se, appeals from an order dismissing his certiorari petition challenging the decision of a prison disciplinary committee. The circuit court dismissed the petition as untimely filed. Because it is undisputed that Shimkus deposited his petition, along with an authorization to withdraw the filing fee from his prison account, in the appropriate mail receptacle at Fox Lake well within the time limit for filing such actions, we reverse, concluding that, under these circumstances, the forty-five day time limit for filing such petitions set forth in Wis. Stat. § 893.735(2) (1997-98) is tolled.

¶ la. Shimkus was found by a Fox Lake "adjustment committee" to have violated certain prison rules, and discipline was imposed. Following the serpentine procedures applicable to such cases, he then appealed the committee's decision to the institution's warden, who affirmed the adjustment committee's decision. As required by the exhaustion-of-remedies provisions of Wis. Stat. § 801.02(7), Shimkus then sought relief through the Inmate Complaint Review System at Fox Lake. His case was dismissed by a hearing officer, and he appealed that decision to the secretary of the department of corrections. The secretary, accepting the hearing officer's recommendations, dismissed Shimkus's complaint on August 6,1999, finally setting the stage for certiorari review in circuit court.

¶ 2. Wisconsin Stat. §893.735(2) states that prisoner certiorari actions are barred if not commenced within forty-five days of the dáte of the final decision or disposition of the matter by prison authorities. The statute goes on to state that an action is "commenced" within the meaning of the law "at the time that the prisoner files a [certiorari] petition . . . with a court." Section 893.735(2). In Shimkus's case, the forty-five-day period would expire on September 20,1999.

¶ 3. Shimkus placed his petition, properly addressed (and apparently carrying the necessary authorization for payment of the filling fee from his prison trust account), in the prison mailbox on September 8 — twelve days prior to the deadline. For reasons not explained in the record, the document was not received by the Dodge County Clerk of Circuit Court until September 23 — three days past the forty-five day deadline. As indicated, the circuit court, on the department's motion, dismissed Shimkus's action as untimely filed.

¶ 4. Shimkus argues on appeal that we should reverse, applying the rationale of Houston v. Lack, 487 U.S. 266 (1988), where the United States Supreme Court held that, under a federal rule of appellate procedure which, at that time, required appeals from denials of habeas corpus petitions to be "filed with the district [court] clerk" within thirty days, a prisoner's notice of appeal was deemed to be "filed" within the meaning of the rule at the moment of delivery to prison authorities for forwarding to the district court. Id. at 276.

¶ 5. Houston's petition was denied by the district court on January 7,1986. He drafted a notice of appeal and, on February 3 — twenty-seven days after entry of the dismissal order — deposited it with prison authorities for mailing to the court. And while there was no evidence as to when the prison authorities actually mailed the document, or when it was received by the court — and some evidence that Houston may have inadvertently addressed the envelope to the Tennessee Supreme Court, rather than the federal district court — the notice was stamped "filed" by the court's clerk on February 7, thirty-one days after entry of the order denying his petition. See id. at 268. Houston's appeal was dismissed for want of jurisdiction due to the untimely filing of the notice, and he appealed. The Supreme Court reversed, holding that Houston's delivery of the notice of appeal to the prison authorities constituted filing it with the court within the meaning of the rule. In so holding the Court emphasized the "unique" status of incarcerated pro se litigants in this regard — that unlike other litigants, they cannot personally ensure receipt of legal papers by the required officers or agencies.

[P]ro se prisoners cannot personally travel to the court house to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mails they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court . . . knowing that if the mail goes awry they can personally deliver the notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. . . . Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public official to whom he has access — the prison authorities — and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on the notice.

Id. at 271-72. The court went on to note that:

As detailed above, the moment at which pro se prisoners necessarily lose control over and contact with their notice of appeal is at delivery to prison authorities, not receipt by the clerk. Thus, whereas the general rule [that filing cannot mean anything other than filing with the clerk] has been justified on the ground that a ciyil litigant who chooses to mail a notice of appeal assumes the risk of untimely delivery and filing . . ., a pro se prisoner has no choice but to hand his notice over the prison authorities for forwarding to the court clerk.

Id. at 275.

¶ 6. Finally, responding to "administrative concerns" that such a rule would "increase disputes and uncertainty over when a filing occurred and . . . would put all the evidence about the date of filing in the hands of [the prisoner]," the court stated that such concerns would actually be alleviated by the rule:

The pro se prisoner does not anonymously drop his notice of appeal in a public mailbox — he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he delivered the paper on a different date. Because reference to prison mail logs will generally be a straightforward inquiry, [the rule] is a bright-line rule, not an uncertain one.

Id. at 275.

¶ 7. The State says we should ignore Houston because (a) it announces no constitutional doctrine, but is only an interpretation of a federal rule, (b) it is not controlling authority in Wisconsin, and (c) courts in at least three other states have declined to follow Houston's rationale.

¶ 8. The State is correct in its characterization of Houston as a non-constitutional federal case which would not be binding on Wisconsin courts. See State v. Webster, 114 Wis. 2d 418, 426 n. 4, 338 N.W.2d 474 (1983). Still, we have on many occasions followed the reasoning of federal trial and appellate-court opinions which we have found to be "persuasive" on a particular point of law. See, e.g., State v. Boettcher, 144 Wis. 2d 86, 96-97, 423 N.W.2d 533 (1988); Streff v. Town of Delafield, 190 Wis. 2d 348, 356-57, 526 N.W.2d 822 (Ct. App. 1994).

¶ 9. We note at the outset that there is a difference in the "filing" requirements of the federal rule at issue in Houston, and the Wisconsin rules applicable to the filing of certiorari actions by prison inmates. The time-keyed provisions of the federal rule relate to the simple act of filing a notice of appeal; nothing more is required for institution of the appeal proceedings. In Wisconsin, however, civil actions are not commenced until the applicable filing fee is paid, see Wis. Stat. § 801.02(6), unless payment is waived by the court for cause shown. If an inmate wishes to commence a certi-orari action without full prepayment of the fee, he or she must request leave to do so and submit to the court an affidavit of indigency and a certified copy of his or her trust fund account statement for the preceding six-month period. See WlS. Stat. § 814.29(lm)(b)(l) and (2). The court then considers these submissions in determining whether to "allow[ ] the prisoner to commence . . . the action" — either without payment of the fee, or by paying into court the balance in the account, if it is less than the fee amount. Section 814.29(lm)(c). There is, in short, much more to the "filing" process in this situation than existed in Houston; and it is for this reason that we do not adopt its express holding that deposit of the pleading or notice in the prison mail receptacle constitutes "filing" within the meaning of time-limit statute. Instead, applying the Houston court's rationale — which we believe is equally applicable here — we effectively toll the statutory forty-five-day time limit from the time the appropriate documents are deposited in the prison mail receptacle and their receipt by the clerk of court. Thus, under our holding, even though a prisoner's certiorari action may be timely with respect to the § 893.735(2) time limit, the court may still decline to allow the action to proceed if the fee and other requirements of §§ 801.02 and 814.29 are not met.

¶ 10. The State says that we should not follow Houston, citing cases from Oregon, Ohio and Missouri which have declined to do so. We see nothing in any of those cases, however, that would make us decline — or even hesitate — to reach an opposite result here. In Norby v. Santiam Correctional Institution, 841 P.2d 1 (Ore. App. 1992), the Oregon court simply stated, without discussion or analysis, that it would not follow Houston because it was a federal, not a state, case. See id. at l. Similarly, in State v. Smith, 702 N.E. 2d 1245 (Ohio App. 1997), the Ohio court offered no explanation for its refusal to follow Houston other than a single sentence noting that Houston involved a federal statute and the court didn't consider it to be "persuasive." Smith at 1246. Finally, in O'Rourke v. State, 782 S.W.2d 808 (Mo. App. 1990), the Missouri court said that it would not follow Houston because it was a federal case and "did not establish a constitutional requirement that a there must be a prison mailbox rule" which would deviate from the language of the applicable Missouri statute (requiring postconviction motions to be filed with the clerk of the trial court). Id. at 809.

¶ 11. Courts in several other states have elected to follow Houston — acknowledging, as we do today, that it does not announce a rule of federal constitutional law, but concluding that its rationale is persuasive because state inmates face obstacles identical to those that led the Houston court to adopt the "prison mailbox" rule. Today, we join those courts.

¶ 12. In Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997), the court, after quoting at length from Houston, recognized that "pro se prisoners in this Commonwealth have the same obstacles as pro se prisoners in federal prisons," and went on to interpret the Pennsylvania statute requiring notices of appeal to be "fil[ed] with the clerk of the lower court" within thirty days as "amenable to an exception for pro se prisoners." Id. at 426. Similarly, in Tatum v. Lynn, 637 So. 2d 796 (La. App. 1994), the court found the Houston rationale to be "persuasive" and held that placing a petition for judicial review of a prison disciplinary proceeding in the prisoner's mailbox complied with requirement of Louisiana law that such petitions be "fil[ed]... in the district court." Id. at 799. And, in Haag v. State, 591 So. 2d 614 (Fla. 1992), and Woody v. State, 833 P.2d 257 (Ok. 1992), the Florida and Oklahoma courts not only found Houston's reasoning persuasive, but concluded that state constitutional provisions guaranteeing the right to habeas corpus and providing a "legal remedy for every wrong," mandated adoption of Houston's "mailbox" rule. See Haag, 591 So. 2d at 617; Woody, 833 P.2d at 259.

¶ 13. We, too, are persuaded by Houston's reasoning. Like many of the state and federal courts considering the question, we see no real difference between a prisoner in the federal system and a Wisconsin prisoner. In each instance, unlike non-confined and/or represented litigants, they are not able to file documents directly — or even to telephone to ascertain whether their papers have been properly filed. Nor do they have any control over the documents once they are delivered to prison officials — with the result that, as happened here, papers delivered in ample time for proper and timely submission to the place the law requires them to be filed, simply do not arrive in a timely fashion. Pro se prisoners necessarily lose all control over (and all contact with) their documents the moment they deliver them to the prison authorities. That may also be true for the non-incarcerated litigant who elects to deposit his or her documents in the mail, rather than see to their personal delivery to the filing official. But the pro se prisoner has no choice in the matter. He or she cannot travel to the filing office — or even to the post office to have delivery certified. Reliance must instead be placed wholly on the good faith of prison officials and employees to see to the timely forwarding of the documents to the designated office. If this trust is violated, whether willfully or through neglect or simple inadvertence, the prisoner loses by default. The Houston rationale avoids such a result and seems to us to be entirely consistent with the basic principles of fairness and equal treatment on which both our substantive and procedural laws are based.

¶ 14. We conclude, therefore, that when a prison inmate places a certiorari petition in the institution's mailbox for forwarding to the circuit court, the forty-five-day time limit in Wis. Stat. § 897.735(2) is tolled. As indicated, however, other defects in the filing, such as the failure to pay the required fee, or establish a right to waiver of the fee, may nonetheless result in its rejection by the court. In this case, however, because it appears that no fee waiver was sought, and because the State does not claim that there were other defects in Shimkus's filing, we conclude that the circuit court erred in quashing the writ based on the untimeliness of the petition.

By the Court. — Order reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       The State suggests in its brief that we cannot consider the disbursement authorization to which Shimkus refers because it is "unauthenticated." We note in this regard, however, that the record, presumably approved by both parties, includes a copy of a "Disbursement Request" dated September 6, 1999. And although it is not "authenticated," as the State says, it is a Department of Corrections form, it contains an approval signature, it requests that the institution pay the sum of $122 out of Shimkus's account for "Filing fee for certiorari" to the Dodge County Clerk of Courts, and it indicates that a check in that amount was issued on September 20,1999.
      The State, conceding the point for purposes of its argument, goes on to say that, even assuming everything was in proper order, Shimkus should bear the blame for the late filing because he could have placed the packet in the mail several days earlier. As indicated below, we disagree with that proposition.

       The rule, F.R.A.P. 4(a)(1), 28 U.S.C. § 2254, now provides a sixty-day deadline.

       The Court also noted that relying on the date of receipt by the clerk, in contrast, would raise much more difficult questions — such as whether delays by the Postal Service constitute excusable neglect, or whether the stamped date is correct — and, most difficult of all, what to do when it appears that the prison authorities were dilatory in forwarding the parcel. See id. at 275-76.

       Prison inmates are also required to file certain other documents along with the pleading in order to establish that any applicable administrative remedies have been exhausted. See § 801.02(7)(c) and (d).

       In this case, as we have noted above, Shimkus was not seeking leave of the court to file an action without prepayment of fees under Wis. Stat. § 814.29. We addressed that issue in our recent decision in State ex rel. Steldt v. McCaughtry, 2000 WI App 176, No. 99-2000. In Steldt, we held that prisoners seeking to petition for certiorari review without payment of filing fees due to indigency should not be time-barred by delays in obtaining a fee waiver or making appropriate payments over which the prisoners have no control. See id. at ¶ 1. We need not consider that issue here because Shimkus’s filing fee was apparently included in the papers sent to the court by the prison authorities.

       A second Oregon case cited by the State, Stull v. Hoke, 948 P.2d 722 (Ore. 1997), rejected a Houston-based argument without any discussion whatsoever. We note also that the Stull court emphasized that, under Oregon law, a civil action is commenced only when the complaint is "filed and served" within the specified time. Id. at 723, 724 (emphasis added).

       The Missouri court also noted that the "institutional safeguards" of logging in prisoner mail, etc., referred to in Houston didn't exist in O'Rourke because O'Rourke had simply dropped the envelope off at the prison mail room and didn't check on it again for six months. Id. at 809.

       Florida Const., Art. I, § 13.

       Oklahoma Const. Art. II, § 6.

       Nor did the Court of Appeals for the Seventh Circuit when, in Jones v. Bertrand, 171 F.3d 499 (7th Cir. 1999), it applied the Houston "mailbox" rule to a petition for habeas corpus filed by a Wisconsin prisoner incarcerated at the Green Bay Correctional Institute.

       The State takes the position that, despite all this, Shimkus is confronted with a situation of his own making; and for that reason alone should be denied relief. The State says that, irrespective of his incarceration or his pro se status, Shimkus had plenty of time — thirty days — to prepare and file his petition — and that even if it took nine days for prison authorities to process the mailing, they had no obligation to "rush" that processing and Shimkus simply should have gotten the petition to them sooner.
      There is no question that a nonprisoner who waits until the last day of a limitation period to personally file a petition, notice or other legal document, is entitled to have his or her appeal heard on the merits. We certainly do not condone such eleventh-hour practice, but we see no rational basis for letting a nonin-carcerated person who personally files the petition at 4:29 p.m. on the last day of the limitation period to have his or her day in court, while denying it to someone like Shimkus, who, because he has no ability to do otherwise, places his petition in the hands of prison authorities for forwarding to the court well ahead of the filing deadline. As the California Supreme Court recognized in In re Jordan, 840 P.2d 983, 992 (Cal. 1992), the Houston rationale "simply ensures that a prisoner who exercises the same degree of diligence, by personally delivering to prison authorities a notice of appeal on the [last] day is accorded similar treatment."


author: CANE, C.J.

text:
    In re the Marriage of: Jane A. Patrickus, Petitioner-Appellant, v. Robert Patrickus, Respondent-Respondent.
    Court of Appeals

      No. 99-3315.

      Submitted on briefs July 17, 2000.

    Decided September 19, 2000.

    2000 WI App 255
    (Also reported in 620 N.W.2d 205.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Nicholas C. Zales of ZalesLaw Office of Milwaukee.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Mark A. Warpinski of Warpinski & Vande Castle, S.C. of Green Bay.
    Before Cane, C.J., Hoover, P. J., and Peterson, J.

      Petition to review denied.

   CANE, C.J.

¶ 1. Jane Patrickus appeals orders modifying her former husband's maintenance obligation to a sum not less than $2,500 per month. She argues that her former husband, Robert Patrickus, is equitably estopped from seeking a maintenance modification. She further argues that the trial court's finding of changed financial circumstances is based upon mistakes of fact and Robert's voluntary income reduction. We conclude that public policy considerations preclude the application of the estoppel doctrine. We further conclude that the record supports the trial court's determination that a substantial change in circumstances justifies reduced maintenance payments. Accordingly, we affirm the orders.

¶ 2. Jane and Robert were divorced in 1995 after thirty-four years of marriage. During their marriage, Jane worked as a homemáker and Robert was employed as a certified public accountant. In 1995, he earned approximately $109,000. At the time of their divorce, Jane and Robert entered into a comprehensive marital settlement agreement that was approved by the trial court and incorporated into the divorce judgment. It provided Jane a maintenance payment for an indefinite period modifiable annually, provided the amount would be not less than the greater of one-half of the net profit of Robert's accounting practice or $4,375 per month, unless Robert became permanently disabled or Jane cohabited or remarried.

¶ 3. In 1998, Robert moved to modify maintenance based upon a reduction in his income. At the motion hearing, Robert testified that he was fifty-eight years old and was a licensed certified public accountant since 1972. Except for a short time, he had operated as a sole proprietor. He employed two certified public accountants, one in his mid-forties and the other in his early thirties. Robert testified that both had been looking for other employment. Robert explained that he agreed to incorporate in order to eventually transfer an interest in his practice to keep them from leaving and to prevent a downward spiral of his practice. He had lost employees previously, making it difficult to get work out and did not want to go through the cost of training new personnel.

¶ 4. The trial court rejected Jane's allegation that Robert had intentionally hidden or reduced income to avoid his maintenance obligation. Thé court believed Robert's testimony that he had made reasonable business decisions to prevent the downward spiral of his business and to retain key employees. The trial court concluded that the parties' marital settlement agreement, incorporated into their divorce decree, was unfair because it permitted Jane to seek increases in maintenance for an indefinite time period while providing no mechanism for Robert to seek a reduction. The court concluded that for reasons of public policy, equitable estoppel raised no bar to Robert's motion for maintenance modification.

¶ 5. The court further determined that pursuant to Wis. Stat. § 767.32, Robert demonstrated a substantial change in financial circumstances. The court granted his motion and ordered Robert to pay one-half of his earned income but not less than $2,500 per month maintenance. It also ordered Robert to provide monthly income and expense statements from his accounting firm and a fist of accounts receivables. Jane appeals the order.

1. Equitable Estoppel

¶ 6. Jane argues that the trial court erroneously failed to apply the doctrine of equitable estoppel to bar Robert from seeking a modification of maintenance. We disagree. "The decision to apply or not to apply the doctrine of estoppel set forth in Rintelman [v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984)] to an undisputed set of facts is a question of law." Nichols v. Nichols, 162 Wis. 2d 96, 103, 469 N.W.2d 619 (1991). We review questions of law de novo. See id.

¶ 7. Generally, maintenance obligations may be modified based upon a substantial change in circumstances. See WlS. Stat. § 767.32. In certain cases, however, a party may be estopped from seeking a modification of maintenance. "[T]he 'estoppel' rule of Rintelman ... is not one based on the historic elements of the equitable [estoppel] doctrine." Ross v. Ross, 149 Wis. 2d 713, 718, 439 N.W.2d 639 (Ct. App. 1989). "It is simply a rule of law which holds the parties to the terms of a stipulated divorce judgment in cases where the stipulation is fair and not violative of public policy, and where, but for the parties' agreement, the court could not have entered the judgment it did." Id. at 718-19. It reflects the notion that a person who agrees that something be included in a family court order, especially where he receives a benefit, is in a poor position to subsequently object to the court doing as he requested. See Rintelman, 118 Wis. 2d at 595-56.

¶ 8. A party may be equitably estopped from seeking modification of the terms of a maintenance stipulation incorporated into a divorce judgment if

both parties entered into the stipulation freely and knowingly, . . . the overall settlement is fair and equitable and not illegal or against public policy, and ... one party subsequently seeks to be released from the terms of the court order on the grounds that the court could not have entered the order it did without the parties' agreement.

Nichols, 162 Wis. 2d at 104.

¶ 9. In Ross, we employed the estoppel doctrine to prevent the modification of payments under 26 U.S. C. § 71, which are created by the tax code permitting nonmodifiable limited term periodic spousal support. The parties' stipulation provided for maintenance of $733 per month for sixty-three months. We observed that stipulating to a nonmodifiable maintenance provision is a calculated risk that could well have turned out to the disadvantage of either party. See id. at 720. We concluded that the agreement did not contravene public policy and, because the four conditions outlined in Rintelman were met, the trial court properly denied relief.

¶ 10. Again, in Nichols, our supreme court applied the estoppel doctrine to prohibit the payee spouse from requesting a modification of the amount of maintenance when the parties' stipulation prohibited the modification. See id. at 106-07. The stipulated divorce judgment provided that the former husband pay a certain sum "to be considered as permanent and in lieu of any further or additional maintenance payments," except that it would terminate upon the wife's remarriage. See id. at 101. The court recognized "that enforcing provisions which provide that maintenance is not subject to modification may result in financial hardship." Id. at 115. Nonetheless, a stipulation that was fair and reasonable under the circumstances existing at the time of the divorce hearing is not unfair or against public policy simply because it may result in subsequent financial hardship. See id. at 115-16. Accordingly, a stipulated divorce judgment that provides that the amount of maintenance cannot be modified is not against public policy. See id. at 108.

¶ 11. "We determine whether a stipulation is fair, equitable, and not against public policy by taking into account the circumstances which existed at the time the stipulation was incorporated into the divorce judgment." Id. "[W]e examine the settlement as a whole." Id. at 111. In evaluating public policy considerations, the Nichols court noted that fairness requires both payors and payees of maintenance to bear the risks of future financial setbacks. It concluded that allowing the payee spouse to seek relief from the stipulation would not be fair because a payor spouse could not seek relief from nonmodifiable maintenance on the ground of financial hardship arising after the divorce. See id. at 111. Nichols noted that applying the doctrine of equitable estoppel was consistent with the public policy of this state to encourage settlement of divorce cases and promote finality. See id. at 115.

¶ 12. Applying these principles, we conclude that the trial court did not err by deciding that equitable estoppel did not bar Robert's motion for modification. The parties do not dispute that two of Rintelman's conditions for estoppel have been satisfied: (1) the parties entered into a comprehensive marital settlement freely and knowingly that was approved by the trial court and incorporated into the divorce judgment, and (2) the court would not have had the power to enter the settlement absent the parties' agreement. Therefore, the only remaining condition is whether their stipulation, at the time it was entered into, violated public policy because it burdened only one party wdth the entire risk of financial hardship indefinitely.

¶ 13. We conclude that under the rationale employed by our supreme court in Nichols, the one-sided indefinite maintenance modification stipulation must be voided on public policy grounds.

The doctrine of estoppel set forth in Rintelman is equitable only if it applies to both payors and payees of maintenance. If payees may seek modification of nonmodifiable maintenance due to financial setbacks suffered since the divorce, but payors of maintenance may not do the same, the payor is denied the benefit of his or her bargain, while the payee receives the benefit of his or her bargain without risking the effects of what he or she agreed to in the stipulation.

Id. at 114.

¶ 14. While Nichols is not directly on point, its public policy rationale applies. We conclude that it violates basic fairness for Jane to be entitled to the perpetual benefit of increases in Robert's income, without sharing in the risk occasioned by a reversal of his good fortune. And, unlike an order that specifies a nonmodifiable fixed amount or term of maintenance, the present one-sided maintenance modification provision invites inevitable litigation. Nichols observed that "[t]he advantage of agreements providing that maintenance is not subject to modification is certainty and finality." Id. at 115. Here, that advantage is not served because the maintenance provision is perpetually modifiable by one of the parties. The stipulated provision fails to advance the public policy of resolving disputes without costly litigation. We agree with the trial court that the one-sided indefinite modification provision fails to accomplish goals of fairness and finality and must be voided on public policy grounds.

¶ 15. Jane offers no case law to support the proposition that a one-sided modification provision for an indefinite term could be consistent with public policy. Jane asserts, however, that the failure to apply estop-pel in this case may result in unfairness to her. We are mindful of her contention that as a homemaker, she needs protection from the potential that her former husband, a skilled businessman and experienced accountant, would manipulate his income to avoid his maintenance obligations. We also recognize that fixed amount or percentage over fixed floor support orders may be motivated by concerns related to earning capacity or fluctuations in earnings. We conclude, however, that perpetuation of an unfair and litigation encouraging maintenance provision is not the remedy for the threat from which she seeks protection.

¶ 16. Here, the trial court recognized Jane's concerns by ordering that she have access to financial records, such as monthly income and expense statements and accounts receivables. The court may take the corporation's retained earnings into account when deciding maintenance whenever a manipulation of corporate income might permit a party to avoid family financial obligations. See id. at ¶ 11.

It does not matter what guise the obligor uses; whether the corporate income is labeled "retained earnings," "earned surplus," or "salary," a family court is authorized to pierce the corporate shield if it is convinced that the obligor's intent is to avoid financial obligations arising from the dissolution of the marital relationship. Depending upon'the case, it is the obligation of the family court to determine if corporate income or profits are a necessary part of a well-managed corporation or an excuse for the sole shareholder to keep income or profits from being considered when the family court is setting financial obligations.

Id. The trial court, therefore, is empowered to prevent the kind of income manipulation Jane seeks to avoid without the necessity of a one-sided modification stipulation. That Robert's support obligation is expressed as a percentage over a fixed floor of $2,500 per month further ensures that the order will generate maintenance that reflects Robert's ability to pay while securing a predictable base income for Jane.

¶ 17. Jane asks that we rely on Whitford v. Whitford, 232 Wis. 2d 38, 41, 606 N.W.2d 563 (Ct. App. 1999), to overturn the trial court. Whitford employed estoppel to prohibit the payee from seeking a modification of limited-term maintenance, where the parties stipulated to a judgment that unambiguously had left maintenance open for no more than four years. See id. The factual underpinnings of Whitford, however, contrast to those here, where just one party can seek to modify maintenance for an indefinite time period. We conclude that Whitford does not control. Jane offers no countervailing public policy considerations to persuade us that the one-sided modification provision is valid. Consequently, we conclude that the trial court correctly determined that the one-sided indefinite modification provision offends goals of fairness and finality and must be voided on public policy grounds.

2. Substantial Change of Circumstances

¶ 18. Under Wis. Stat. § 767.32, a trial court may revise the amount of maintenance ordered in a judgment of divorce when it finds there has been a substantial change in the parties' financial circumstances. See Erath v. Erath, 141 Wis. 2d 948, 953, 417 N.W.2d 407 (Ct. App. 1987). "The first step in a substantial change analysis is a factual inquiry." Carpenter v. Mumaw, 230 Wis. 2d 384, 390-91, 602 N.W.2d 536 (1999). It requires the trial court to determine the parties' financial circumstances when the award was made and their present financial circumstances. See id. We do not overturn the trial court's findings of fact unless they are clearly erroneous. See id.

¶ 19. "Whether the change displayed by these factual findings is substantial is a question of law, which we review de novo." Id. at 391. However, when a question of law is intertwined with the factual findings, we give weight to the trial court's decision. See id.

¶ 20. Here, the trial court believed Robert's testimony that he incorporated his accounting practice to avoid losing clients and key employees. Robert testified that forming the corporation "gave the perception of a larger firm, and I wanted to have that perception of the larger firm so our firm would grow because as a sole proprietor ... I was losing clients because of the age of those clients being my age, they were retiring, giving their business to their young sons, young son knows a young CPA, and I lose the client... that I've had for 30 years, had dad there and now the youngster wants to go his own way." Robert believed that forming the corporation with his younger employees would prevent them from leaving and give his firm the age variance needed to retain clients.

¶ 21. Robert further testified that when he formed the corporation, he realized his employees "were not going to come in unless we were all somewhat equal, and so it was an equalization of the salaries, and I realized I had to give up a little bit right at this point in order to do that." Robert and the salaries of the two other employees were set at $52,000 per year.

¶ 22. In 1997 Robert's income was $59,773, and in 1998 it was $77,496. Robert explained that if he had remained a sole proprietor, his income would not have been much more. Robert testified that in 1997, after paying maintenance, he had a negative disposable income. He hoped that by forming the corporation, his income would rebound to where it was at the time of the divorce.

¶ 23. Robert explained that when he formed the corporation, "it started, in essence at zero" and he brought into the corporation his equipment, files and some of his accounts receivables: "I entered into an agreement with the two fellows so some of my receivables that were collected would become a note payable to me as soon as the company generated enough billings and collected those billings that they could repay it to me." He testified that he transferred approximately $32,000 in receivables from his sole proprietorship to his newly formed corporation. Approximately $24,000 had been repaid, and he used some to pay maintenance and some to pay a portion of his tax liability.

¶ 24. Robert stated that he owed $78,000 to the federal government in overdue taxes and had to borrow to pay state taxes. He borrowed $100,000 from an acquaintance to pay his various obligations. Although he maintained a country club membership costing $7,000 per year, he believed the membership was to his advantage for business reasons. He further testified that he purchased a Florida condominium from a former client for $53,000, and that there was $44,871 still owing. He claimed that he purchased the condominium to facilitate the expansion of his accounting practice into the. area of business valuations for a Florida accounting firm.

¶ 25. Although Robert agreed his health was excellent, he also pointed out that he is being treated for high blood pressure and, now that he is older, it is more difficult to work the number of hours he did when he was younger. Robert denied diverting any income or not working up to his potential.

¶ 26. The trial court accepted as true Robert's testimony that the changes in his business structure were for legitimate business reasons. It gave less credence to Jane and her expert witness who testified to the effect that the changes were unnecessary and that Robert artificially deflated his income. The trial court, not the appellate court, judges the credibility of witnesses and the weight of their testimony. See State v. Wyss, 124 Wis. 2d 681, 694, 370 N.W.2d 745 (Ct. App. 1985). Appellate courts search the record for evidence to support findings reached by the trial court, not for evidence to support findings the trial court did not but could have reached. See In re Estate of Dejmal, 95 Wis. 2d 141, 154, 289 N.W.2d 813 (1980). Appellate court deference considers that the trial court has the superior opportunity to observe the demeanor of witnesses and gauge the persuasiveness of their testimony. See id. at 151-52. Because Robert's testimony supports the trial court's findings of fact, we do not overturn them on appeal.

¶ 27. The trial court's factual findings justify the conclusion that Robert's change in circumstances was substantial. At the time of the divorce, Robert's annual income was $109,000. In 1997 Robert's income was $59,773, and in 1998 it was $77,496. Robert testified that in 1997, after paying maintenance, he had a negative disposable income. He borrowed $100,000 to meet his obligations. These facts support the conclusion that Robert's change in circumstances was substantial.

¶ 28. Jane contends, nonetheless, that the trial court erred because it failed to consider the $32,000 in accounts receivables Robert loaned to his corporation to get it started. We disagree. The court specifically rejected Jane's claim that Robert was shirking his maintenance obligations or diverting income. In so doing, it implicitly accepted Robert's explanation that the accounts receivables were used for legitimate business purposes and, as the corporation repaid him, he characterized the payments as income and used them for tax and maintenance obligations. Because Robert's testimony supports the trial court's determination, we do not overturn it on appeal. See Wis. Stat. § 805.17(2).

¶ 29. We agree with the trial court that public policy considerations preclude the application of equitable estoppel. Because the trial court's factual finding of changed circumstances rests on its credibility determinations, it finds support in the record. The court correctly concluded that the change in circumstances was substantial and justified the maintenance modification.

By the Court — Orders affirmed.

       The agreement provides:
      Husband shall pay maintenance to Wife of $4,375 per month for an indefinite period, which said maintenance shall be modifiable only as follows: annually, as to amount, on the anniversary date of the parties' divorce, provided that the amount set for maintenance shall be not less than the greater of one-half of the net profit (defined as gross income less ordinary and necessary business expenses, as defined in IRC § 162) of Husband's accounting practice per year for the prior twelve months (divided by twelve and payable monthly for the next twelve months) or $4,375 per month; provided, however that if Husband becomes permanently disabled, maintenance may be modified to reflect such change of circumstances and Wife shall receive as maintenance at least one-half of Husband's disability payments (Husband shall continue, maintain, and pay the premiums for his policy(ies) of disability insurance); and further provided that if Wife cohabits without marriage, the maintenance amount shall be reduced to one-half of the amount otherwise payable. Further, the Court shall reserve jurisdiction over the issue of maintenance for Wife In any event, all maintenance under this Agreement ceases upon the death of the Wife.
      Further, Husband shall, as additional maintenance, pay the premium for, continue and maintain Wife's health insurance coverage until the earlier of her death or remarriage, and shall furnish Wife evidence of coverage upon request.
      In the event of remarriage, maintenance, deductible by Husband and includable by Wife, shall be continued for such period and in such amounts as is required to pay in full and satisfy the first mortgage on the residence awarded to Wife hereunder, pursuant to the terms of such mortgage note, as well as any liens against the said residence created during the marriage or as a result of debt(s) incurred during the marriage, which said maintenance shall be non-modifiable in all respects; provided, however, that in the event Wife sells the residence at any time and receives net proceeds (after mortgage, liens, and costs of sale) exceeding $200,000, one-half of the amount of any principal reduction on the residence awarded to Wife hereunder (but not more than one-half of the excess net proceeds of the sale of the residence), effected by Husband on such debts and mortgage after a remarriage by Wife, shall be credited to Husband out of Wife's share of the net proceeds of the sale of Husband's accounting practice, as hereinafter provided. Further, jurisdiction over maintenance for Wife is reserved for the life of Wife, regardless of any future remarriage by her, to assure that Husband pays any and all obligations assigned to him hereunder.
      Indefinite maintenance is awarded based upon the length of the parties' marriage, Wife's contributions as a homemaker and child care provider, her absence from the job market.

       Jane receives a share of the proceeds of any transfer of the business as part of the property division.

       All statutory references are to the 1997-98 version unless otherwise noted.

         Rintelman distinguished stipulations that are incorporated into a judgment from stipulations to which the circuit court merely refers and approves. If merely approved, ”[t]he arrangement is contractual, not a judicial determination, and therefore no more subject to change by the court than the terms of any other private agreement." Rintelman v. Rintelman, 118 Wis. 2d 587, 592-93, 348 N.W.2d 498 (1984) (quoting Miner v. Miner, 10 Wis. 2d 438, 444, 103 N.W.2d 4 (1960)). However, "where the court adopts the parties' stipulation and incorporates it into its judgment, '[t]he award [is] ... by adjudication and subject to modification.'" Id.

       Jane agrees that one-sided modification provisions have been disfavored in child support cases. See Krieman v. Goldberg, 214 Wis. 2d 163, 176-78, 571 N.W.2d 425 (Ct. App. 1997). We acknowledged that an agreed upon, time-limited floor for child support may not offend public policy, see Honore v. Honore, 149 Wis. 2d 512, 439 N.W.2d 827 (Ct. App. 1989), but we distinguished that provision from a nonmodifiable support order that lacked a reasonable time limitation. See Krieman, 214 Wis. 2d at 176-78.

        Krieman found that an absolute child support agreement, with no time limitation or opportunity to review, offends public policy. Id. at 178. The agreement in question was incorporated into an order and provided that the father's $31,200 annual obligation "shall remain the same regardless of his income." Id. at 166. Krieman recognized that "a divorce stipulation that waives or sets a ceiling on child support and prevents modification of child support offends public policy." Id. at 176 (quoting Ondrasek v. Tenneson, 158 Wis. 2d 690, 692, 462 N.W.2d 915 (Ct. App. 1990)). This is because the future needs of the child may be unmet. See id.

      Some of the considerations in evaluating the fairness of child support stipulations differ from those applicable to maintenance stipulations, however, so a modification of child support analysis would not control the analysis in the case before us.

       Without suggesting any possible merit, we merely note that our discussion does not include the following claims because no such contentions were made or developed: (1) The maintenance stipulation is so interwoven with the property division that one cannot be undone without the other; (2) the court should not have severed one clause without voiding the entire agreement; (3) the court's approval at the time of the divorce hearing is somehow binding on later litigation; and (4) purely contractual considerations apply. See Waushara County v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1992) (we consider only the issues presented).


author: FINE, J.

text:
    Wisconsin Patients Compensation Fund, Plaintiff-Respondent, v. Physicians Insurance Company of Wisconsin, Inc., Defendant-Appellant.
    Court of Appeals

      No. 99-1322.

      Oral argument September 6, 2000.

    Decided October 3, 2000.

    2000 WI App 248
    (Also reported in 620 N.W.2d 457.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John S. Skilton and Michael B. Van Sciklen oí Foley & Lardner, of Madison. There was oral argument by John S. Skilton.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí William H. Levit, Jr. and Michael B. Apfeld of Godfrey & Kahn, S.C., of Milwaukee. There was oral argument by William H. Levit, Jr.

    Before Wedemeyer, P.J., Fine and Curley, JJ.

      Petition to review denied.

   FINE, J.

¶ 1. The Physicians Insurance Company of Wisconsin, Inc., provides medical-malpractice insurance for approximately forty-percent of physicians practicing in Wisconsin. Under Wis. Stat. ch. 655, its coverage is primary, and the Wisconsin Patient's Compensation Fund provides excess coverage. Wis. Stat. § 655.27; Patients Compensation Fund v. Lutheran Hospital-LaCrosse, Inc., 223 Wis. 2d 439, 452-453, 588 N.W.2d 35, 40 (1999) ("When a malpractice claim against a health care provider succeeds, the Fund pays the part of the claim which is in excess of either the amount of primary insurance coverage required by the statute or the amount of primary insurance coverage actually carried by the health care provider, whichever is greater.").

¶ 2. Physicians Insurance appeals from an order declaring that Wis. Stat. § 655.27(5)(b) means that lawyers retained by it and other medical-malpractice insurers in connection with an action to which WlS. Stat. ch. 655 applies must "assumet ] an attorney-client relationship with the Fund" and that this "requires that the Fund be provided with the timely transmission of all case evaluations, status reports, strategic recommendations and other substantive communications of defense counsel subject to the provisions of the Code of Professional Responsibility." Physicians Insurance also appeals from the trial court's declaration that restrictions imposed by Physicians Insurance on what lawyers hired by it to represent its insureds may reveal to the Fund are invalid. We reverse.

I.

¶ 3. The liability of a "health care provider" in Wisconsin for medical malpractice is governed by Wis. Stat. ch. 655. See Lutheran Hospital-LaCrosse, 223 Wis. 2d at 452, 588 N.W.2d at 40. A "health care provider" is a person or entity within the scope of Wis. Stat. § 655.002. See Wis. Stat. § 655.001(8). Every "health care provider" must either have liability insurance or be a self-insurer. See Wis. Stat. § 655.23; see also Lutheran Hospital-LaCrosse, 223 Wis. 2d at 452 n.7, 588 N.W.2d at 40 n.7. Section 655.23 sets the minimum dollar-requirement for this insurance. As noted, the Fund, an agency created by the state, Lutheran Hospital-LaCrosse, 223 Wis. 2d at 454, 588 N.W.2d at 41, provides coverage for any difference between the health-care provider's primary insurance and an award of damages or settlement. The Fund's assets come from health-care provider assessments, see Wis. Stat. § 655.27(3), and are "held in trust for the purposes" of ameliorating any adverse affects of medical-malpractice claims on the provision of health care in this state, see Wis. Stat. § 655.27(6); Wisconsin Patients Compensation Fund v. Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 607, 547 N.W.2d 578, 580 (1996) (legislature enacted Wis. Stat. ch. 655 because it was "[Concerned about what it viewed as the increasing cost and possible decreasing availability of health care in Wisconsin").

¶ 4. An insurance carrier providing primary coverage has a potential conflict with the Fund because the Fund can seek contribution from it as well as its insureds. See Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d at 612-614, 547 N.W.2d at 583; see also Lutheran Hospital-LaCrosse, 223 Wis. 2d at 455, 588 N.W.2d at 41. Thus, in oral argument before the trial court in this case, counsel for the Fund conceded that, in what he termed "the most extreme situation," the Fund could "theoretically" "seek contribution against the doctor" insured by the primary carrier.

¶ 5. There are two parts of Wis. Stat. ch. 655 that are at play here. First, Wis. Stat. § 655.27(5)(b) requires the carrier providing the primary coverage "to provide an adequate defense of the fund on any claim filed that may potentially affect the fund," and to deal in good faith "with respect to any claim affecting the fund." Section 655.27(5)(b) provides:

It shall be the responsibility of the insurer or self-insurer providing insurance or self-insurance for a health care provider who is also covered by the fund to provide an adequate defense of the fund on any claim filed that may potentially affect the fund with respect to such insurance contract or self-insurance contract. The insurer or self-insurer shall act in good faith and in a fiduciary relationship with respect to any claim affecting the fund. No settlement exceeding an amount which could require payment by the fund may be agreed to unless approved by the board of governors.

Simply put, the Fund may not be sandbagged by a carrier seeking to shift to the Fund liability that is properly borne by the carrier. Indeed, the legislature has specifically authorized the Fund to "bring an action against an insurer, self-insurer or health care provider for failure to act in good faith or breach of fiduciary responsibility under sub. (5)(b) or (c)" of § 655.27. Wis. Stat. § 655.27(7).

¶ 6. In addition to requiring that the primary insurance carrier "provide an adequate defense of the fund on any claim filed that may potentially affect the fund," and "act in good faith and in a fiduciary relationship with respect to any claim affecting the fund," Wis. Stat. § 655.27(5)(b), the legislature also authorizes the Fund to appear with its own counsel if "it appears reasonably probable" that the Fund will be responsible for part of a malpractice claim, Wis. Stat. § 655.27(5)(a)3. This section provides, as material to this appeal:

If, after reviewing the facts upon which the claim or action is based, it appears reasonably probable that damages paid will exceed the limits in s. 655.23(4), the fund may appear and actively defend itself when named as a party in an action against a health care provider, or an employe of a health care provider, that has coverage under the fund. In such action, the fund may retain counsel and pay out of the fund attorney fees and expenses including court costs incurred in defending the fund. The attorney or law firm retained to defend the fund shall not be retained or employed by the board of governors to perform legal services for the board of governors other than those directly connected with the fund.

¶ 7. The dispute here centers around the attempt by Physicians Insurance to limit the scope of representation provided to the Fund by lawyers hired by Physicians Insurance to represent its insureds. The Fund contends that the statute's requirement that the primary carrier provide to the Fund an "adequate defense" means that the lawyer hired by the primary carrier to represent its insureds should also have a full attomey/client relationship with the Fund, and that it should be privy to all information gathered and strategy formulated by those lawyers. Physicians Insurance, on the other hand, contends that under the statute, as expressed in the parties' joint petition seeking to have the supreme court take original jurisdiction of this case, the lawyers retained by it are "permitted to withhold information from the Fund, including, but not limited to, confidential attorney-client information acquired from the health care provider and/or counsel's work product."

II.

¶ 8. This case was presented to the trial court on cross-motions for summary judgment, and there is no dispute about facts that are material to the resolution of this appeal. Our review of a trial court's grant of summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). This appeal turns on what the pertinent provisions in Wis. Stat. ch. 655 mean, and this, too, is a matter that we decide de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-365, 560 N.W.2d 315, 317 (Ct. App. 1997).

¶ 9. In applying a statute, we must, absent a constitutional infirmity, effectuate the legislature's intent. See Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123, 127 (1997). If the statutory language is clear, we simply apply it. See DNR v. Wisconsin Power & Light Co., 108 Wis. 2d 403, 408, 321 N.W.2d 286, 288 (1982). Here, the parties dispute the meaning of the word "adequate" in the statute's command that the primary carrier give to the Fund "an adequate defense of the fund on any claim filed that may potentially affect the fund." Wis. Stat. § 655.27(5)(b). As noted, the Fund contends that this means that the lawyer hired by the primary carrier must treat the Fund as if the Fund were its client — giving to the Fund access to all information gleaned from the lawyer's investigation and analysis. Physicians Insurance, on the other hand, argues that this makes no sense for two reasons. First, it would prejudice its interests and the interests of the health-care provider for whom the lawyer was hired to represent by giving to the Fund ammunition that the Fruid might later use in an action for contribution against either Physicians Insurance or its insured. Second, Physicians Insurance contends that there is a distinction between the legislature's command that it give to the Fund an "adequate defense on any claim filed that may potentially affect the fund," and the legislature's authorization for the Fund to "appear and actively defend itself' when "it appears reasonably probable that damages paid will exceed" the primary limits. We agree with Physicians Insurance on both points.

¶ 10. The legislature envisioned two possible scenarios in connection with malpractice claims filed against health-care providers. First, if the claim "may potentially affect the fund," the primary carrier must protect the Fund's interests by both giving it an "adequate defense" and by acting "in good faith and in a fiduciary relationship with respect" to that claim. Wis. Stat. § 655.27(5)(b). Second, where "it appears reasonably probable that damages paid will exceed" the primary limits, the Fund may hire its own lawyer and "actively defend itself." Wis. Stat. § 655.27(5)(a)3. We must apply statutes so that every word is given meaning and effect. See Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817, 821 (1980). Moreover, and of particular significance here, "where the legislature uses similar but different terms in a statute, particularly within the same section, it is presumed that the legislature intended such terms to have different meanings." Nelson, 211 Wis. 2d at 496, 565 N.W.2d at 128.

¶ 11. The Fund's interpretation of the statutes would force the lawyer hired by the primary carrier to represent not only it and its insured but also the Fund. This violates the apparent rule in this state that a lawyer/client relationship can only be formed by the mutual consent of the lawyer and client. See Marten Transp. Ltd. v. Hartford Specialty Co., 194 Wis. 2d 1, 13-14, 533 N.W.2d 452, 455 (1995) (plurality opinion by Justice Geske on behalf of three members of the court). Additionally, SCR 20:1.6(a), with exceptions not material here, provides that "[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation." The rule is stark: confidential client information is confidential, and the client's lawyer "shall not" reveal that information to anyone without the client's informed consent. There are no gradations of confidentiality; the Fluid's interpretation of the statute would put the lawyer hired by the primary carrier in an untenable position — disclosure to the Fund of confidential information gleaned from the lawyer's primary clients (the primary insurer and its insured) that might very well provide the Fund with ammunition in both deciding whether to seek contribution and in the actual prosecution of a claim for contribution. As we have recognized, "the interests of the fund and a health care provider 'may not always be united.'" Goff v. Seldera, 202 Wis. 2d 600, 617, 550 N.W.2d 144, 151 (Ct. App. 1996). The injunction in the book of Saint Matthew is particularly appropriate in the context of this case: "No man can serve two masters." Matthew 6:24. To enforce the Fund's position here would require lawyers hired by the primary carrier to do precisely that.

¶ 12. There is an additional reason why we believe that the legislature's distinction between an "adequate defense" and an "activet ] defen[se]" is material. Words of a non-technical nature in the Wisconsin statutes "shall be construed according to common and approved usage," "unless such construction would produce a result inconsistent with the manifest intent of the legislature." WlS. Stat. § 990.01(1). The word "adequate" means, essentially, "fully sufficient for a specified or implied requirement; often'. narrowly or barely sufficient: no more than satisfactory." Webster's •Third New Int'l Dictionary 25 (unabr. 1993). The opposite of "active" is "passive." Thus, the legislature has determined that unless "it appears reasonably probable that damages paid will exceed" the primary limits, the Fund's role in the chapter 655 claim is to be non-"active"; that is, passive. If it does not appear "reasonably probable" that the Fund will be liable for any amount of the claim, then receipt of the filed documents and information about what's going on in the case is "adequate"; that is, "sufficient" for the Fund's purposes. If, on the other hand, it does appear "reasonably probable" that the Fund will have to pay part of the claim, then an "adequate defense" is not suitable to the circumstance; rather, the Fund needs (and the monies that it holds in trust need) an "active" defense that encompasses what SCR 20:1.1 requires that all lawyers give to their clients: "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Certainly, no client faced with the loss of liberty or fortune would want representation that was merely "adequate"; every client is entitled to "fearless, vigorous and effective advocacy." See Offutt v. United States, 348 U.S. 11, 13 (1954). Thus, the legislature has provided that when it appears that the Fund will be faced with financial loss, the Fund will hire a lawyer to provide its "activet ] defen[se]." The Fund's interpretation blurs this distinction, which was, albeit in a different context, recognized by Goff, 202 Wis. 2d at 617, 550 N.W.2d at 151 (failure to name fund precluded it from hiring own lawyer and appearing to actively defend itself; failure to name fund therefore relegated it to the "adequate defense" provided for by Wis. Stat. § 655.27(5)(b)).

¶ 13. In sum, we perceive nothing either in the language of the material part of Wis. STAT. ch. 655 or in the interests of fairness that supports the Fund's position. Accordingly, we reverse.

By the Court — Order reversed.

       A similar provision applies where the health-care provider has posted a cash or surety bond in accordance with Wis. Stat. § 655.23(3)(d). See Wis. Stat. § 655.27(5)(c).

       The supreme court denied the joint petition on August 24, 1998.

       The parties have submitted opinions by various persons whom the parties proffer as experts in legal ethics. Although a lawyer's obligations under the applicable legal ethics provide context and dimension to our statutory analysis, our analysis of all the legal issues is de novo-, for better or for worse under our system the only "expert" on domestic law is the court. See Succession of Allison, 727 So. 2d 683, 684 n.1 (La. Ct. App. 1999); Caplan v. Winslett, 218 A.D.2d 148, 155 (N.Y. App. Div. 1996) ("trial court should not rely on the testimony of a legal expert on a question of domestic law, regardless of the witness' vast experience"); Thorin v. Bloomfield Hills Bd. of Educ., 513 N.W.2d 230, 236 (Mich. Ct. App. 1994) ("Generally, expert witnesses may not testify with regard to domestic law because it is within the exclusive responsibility of the trial judge to find and interpret the applicable law."); United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) ("As a general rule an expert's testimony on issues of law is inadmissible.... [Although an expert may opine on an issue of fact within the jury's province, he may not give testimony stating ultimate legal conclusions based on those facts."), overruled on other grounds by United States v. Mandancini, 205 F.3d 519 (2nd Cir. 2000); Music Sales Corp. v. Morris, 73 F. Supp.2d 364, 381 (S.D.N.Y. 1999) ("testimony of an expert on matters of domestic law is inadmissible for any purpose"); see also In Matter of Judicial Disciplinary Proceedings Against Tesmer, 219 Wis. 2d 708, 726, 731, 580 N.W.2d 307, 315 (1998) (per curiam) (testimony by judges as to whether a judge violated judicial ethics inadmissible because proposed testimony went to "ultimate issue of law to be decided"; alternate holding — judges not called as expert witnesses and were not qualified as such); cf. United States v. Kellington, 217 F.3d 1084, 1098 (9th Cir. 2000) (in prosecution of lawyer for improper representation of client, expert testimony on lawyer's ethical obligations admissible to establish lawyer’s intent and state of mind; arguably contrary to Tesmer, which, in an alternate holding, opined that testimony by judges inadmissible to show judge's intent and knowledge—219 Wis. 2d at 730, 580 N.W.2d at 317).

       It is no answer to say, as counsel for the Fund advised the trial court, that if, for example, the lawyer representing the primary carrier and its insured is told by the insured that he or she "was probably negligent" that "that is confidential information that should not be disclosed to the Fund," but, rather, the lawyer "should then tell the Fund that a conflict of interest has developed. That he cannot disclose the basis for the conflict. That he can no longer continue to represent the Fund. And in that case we have no objection to his continuing to represent [the insured physician]. And that we would then get another lawyer." To a good lawyer, a disclosure that there is something that cannot be told is like blood in the water to a shark; it will spur a feeding frenzy of discovery and investigation. The disclosure itself would be a violation of the lawyer's duty to keep confidential information confidential.


author: CURLEY, J. SCHUDSON, J.

text:
    In Re the Return of Property in State v. Sammie L. Glass: City of Milwaukee, Appellant, v. Sammie L. Glass, Respondents.

    Court of Appeals

      No. 99-2389.

      Submitted on briefs August 1, 2000.

    Decided October 3, 2000.

    2000 WI App 252
    (Also reported in 620 N.W.2d 213.)

      On behalf of the appellant, the cause was submitted on the brief of Grant Langley, city attorney, and David J. Stanosz, assistant city attorney.
    On behalf of the respondent, the cause was submitted on the brief of Sammie L. Glass.

    Before Wedemeyer, P.J., Schudson and Curley, JJ.

      Petition to review granted.

   CURLEY, J.

¶1. The City of Milwaukee appeals the trial court's order granting Sammie Glass a money judgment, after Glass established at a hearing held pursuant to Wis. Stat. § 968.20, that the property seized at the time of his arrest had been mistakenly returned to a third party. Because § 968.20 does not authorize the trial court to grant a money judgment when seized property is missing or has been mistakenly returned to a third party, we reverse.

I. Background.

¶ 2. Glass was arrested by the Milwaukee police and charged with receiving stolen property, contrary to Wis. Stat. § 943.34. In connection with the arrest, the police seized a sizable quantity of copper wire and scrap metal from Glass's residence. Later, the police contacted a party who the police believed to be the lawful owner of the scrap metal, and released the scrap metal to this person.

¶ 3. In March 1998, Glass was acquitted of the charge of receiving stolen property by a jury. Later, in September 1998, using the case number of his criminal charge, Glass filed a petition, pursuant to Wis. Stat. § 968.20, seeking the return of the copper wiring and other scrap materials seized by the police. The trial court held two hearings on the matter. Following the second hearing, the trial codrt declared that the seizure of the property by the police constituted a "gratuitous bailment." After valuing the property at $1,606.80, the trial court awarded Glass a judgment for $1,606.80, together with both prejudgment and póstjudgment interest, because the Milwaukee Police Department no longer had the property. The City appeals.

II. Analysis.

¶4. This matter requires us to interpret Wis. Stat. § 968.20. Statutory interpretation presents a question of law that this court decides de novo. See Spence v. Cooke, 222 Wis. 2d 530, 536, 587 N.W.2d 904 (Ct. App. 1998).

¶ 5. Our goal in statutory interpretation is to discern and to give effect to the intent of the legislature. State v. Cardenas-Hernandez, 219 Wis. 2d 516, 538, 579 N.W.2d 678 (1998).

To achieve this goal, we first look to the plain language of the statute. If a statute is unambiguous, this court will apply the ordinary and accepted meaning of the language of the statute to the facts before it. If a statute does not clearly set forth the legislative intent, we then look to the scope, history, context, subject matter, and object of the statute.

Jones v. State, 226 Wis. 2d 565, 574, 594 N.W.2d 738 (1999) (citations omitted), cert. denied, 120 S. Ct. 995 (2000). We are satisfied that the intent of the legislature in passing Wis. Stat. § 968.20 was to authorize the return of seized property and nothing more. Thus, the court cannot grant a money judgment to the rightful owner when the property is missing or mistakenly returned to another.

¶ 6. Wisconsin Stat. § 968.20(1) allows a person claiming the right to possession of property seized with or without a search warrant to seek the property's return in the circuit court for the county in which the property was taken. The statute reads in pertinent part:

(1) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (lm) or (lr)ors. 951.165....

¶ 7. We determine that the statute is unambiguous. Thus, we are required to give the statutory language its ordinary and accepted meaning. Giving it its ordinary and accepted meaning, the statute simply directs the trial court to return seized property to its rightful owner, unless the property is a dangerous weapon belonging to a person who committed a crime, contraband, or property needed for evidence or further investigation. The trial court's duties under the statute are limited. The trial court is required to give notice to all interested persons and to hold a hearing to ascertain the true owner. If, at the hearing, the trial court is satisfied that a person has "the right to possession," then, unless the property falls within several exceptions not relevant here, the trial court "shall order the property returned." Clearly, the statute's purpose is to permit the swift return of seized property to the proper owner when the property is no longer needed by law enforcement personnel.

¶ 8. We also note that the statute is found in the chapter entitled "Commencement of Criminal Proceedings." Thus, the legislature's passage of the bill created a criminal, not a civil, remedy.

¶ 9. Further, contrary to the trial court's conclusion, we can glean nothing from WlS. Stat. § 968.20 that states or implies that when property is missing or has been mistakenly returned to someone else, the trial court can grant the owner a money judgment. The wording of the statute does not permit such an interpretation, and had the legislature intended to provide such a remedy, it would have done so.

¶ 10. Moreover, long-standing case law directs that a money judgment cannot be obtained against a city unless a required notice of claim has been filed pursuant to Wis. Stat. § 893.80. "No action may be brought or maintained against a city upon a claim or cause of action unless the claimant complies with s. 893.80." Wis. Stat. § 62.25(1); Figgs v. City of Milwaukee, 121 Wis. 2d 44, 49, 357 N.W.2d 548 (1984). Section 893.80(1)(a) provides:

(1) Except as provided in subs, (lg), (lm), (lp) and (8), no action may be brought or maintained against any... governmental subdivision or agency thereof nor against any officer, official, agent or employe of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the ... governmental subdivision or agency and on the officer, official, agent or employe under s. 801.11.

The vitality of this rule was recently reaffirmed in City of Racine v. Waste Facility Siting Bd., 216 Wis. 2d 616, 575 N.W.2d 712 (1998). "The plain language of the statute and case law dictate that compliance with [§ 893.80(1)] is a necessary prerequisite to all actions, including counterclaims, brought against governmental subdivisions. Other statutes provide some exceptions to the application of [§ 893.80(1)], but we are not persuaded that this cáse presents one of the exceptions." Id. at 619.

¶ 11. Glass has filed no notice of claim. WISCONSIN Stat. § 968.20 does not create an exception to the general rule enunciated in Wis. Stat. § 893.80. Consequently, the trial court erred in granting Glass a money judgment under this statute.

By the Court. — Order reversed and cause remanded with directions.

SCHUDSON, J.

¶ 12. (dissenting). Although I agree with the majority's statement of the parameters of WlS. Stat. § 968.20,1 conclude, in light of the trial court proceedings, that the inflexible application of that statute elevates form over substance and renders an absurd result.

¶ 13. In the trial court, the assistant city attorney, opposing Glass's motion for the return of property, argued:

If this court is going to impose upon the City the potential financial liability as to paying monetary terms of value of the property, certainly the City ought to then be allowed to pursue civil discovery, state their [sic] positions, make inquiries, submit written interrogatories to Mr. Glass in an effort to identify . . . the dollar amounts'/and determine just what the value of what was seized, [sic] was taken. And that is consistent with the .court's classification of these proceedings.

Responding to the City's concerns, the trial court then granted the City time "to determine what the valuation is on it, and to take whatever , discovery [the City] want[s]." The court then granted an additional thirty days "to get anybody joined that [the City] want[s]," and yet another thirty days "after that because... that may screw up the thing a little more." The court then scheduled a hearing in "about 120 days."

¶ 14. The City did not object. After all, the trial court granted the City all the time and procedural opportunities it requested. Although the City now argues that the court fashioned a remedy that was not available under Wis. Stat. § 968.20, the City does not argue that it was prejudiced, or that it was denied any right it would have enjoyed had Glass formally proceeded under Wis. Stat. § 893.80.

¶ 15. The trial court, satisfied that the City had improperly given Glass's property to a third party, expedited this case so that neither Glass nor the City would be further inconvenienced by a separate action. In doing so, the trial court granted all the City's requests. Glass and the City both benefited from the court's fair and expeditious approach. The trial court, no doubt, will be puzzled by the majority's decision and Glass, a pro se litigant, will be amazed that this court casts him back into a legal maze.

¶ 16. Accordingly, I respectfully dissent.

       All references to the Wisconsin Statutes is to the 1997-98 version unless otherwise noted.