author: SCHUDSON, J.

text:
    In re the Commitment of Thomas Treadway: State of Wisconsin, Petitioner-Respondent, v. Thomas Treadway, Respondent-Appellant.

    Court of Appeals

      No. 00-2957.

      Submitted on briefs June 5, 2002.

    Decided July 30, 2002.

    2002 WI App 195
    (Also reported in 651 N.W.2d 334.)

      On behalf of the respondent-appellant, the cause was submitted on the brief of Lynn Ellen Hackbarth of Law Offices of Lynn Hackbarth, of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christian R. Larsen, assistant attorney general.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review denied 10-21-02.

   SCHUDSON, J.

¶ 1. Thomas Treadway appeals from the trial court order denying his postverdict motions "to have his commitment as a sexually violent person reversed or vacated, and to have the [petition alleging that he is a sexually violent person] dismissed for want of jurisdiction," or, alternatively, to be granted a new trial "upon his additional claims of error." Contending that his commitment is unlawful, he argues that: (1) the State did not timely file the petition; (2) the trial court allowed him fewer peremptory strikes than he should have received, given that commitment could, in effect, be comparable to a sentence of life imprisonment; (3) the trial court improperly failed to strike a juror for cause, thus forcing him to use one of his peremptory strikes; (4) the trial court erred in allowing his probation officer to offer an opinion that he was a "high risk" to reoffend; and (5) the evidence was insufficient to prove that he was a sexually violent person.

¶ 2. Alternatively, Treadway argues that trial counsel was ineffective for failing to raise some of these arguments. Additionally, the parties address the nature of this court's jurisdiction over Treadway's appeal, given Treadway's failure to file postverdict motions within twenty days of the jury's verdict.

¶ 3. We conclude that, in Wis. Stat. ch. 980 proceedings, postverdict motions must be filed within twenty days of the commitment order and, therefore, Treadway, by filing his motions within twenty days of the commitment order, preserved his appeal as a matter of right. We also conclude, however, that Treadway's other arguments fail. Accordingly, we affirm.

I. BACKGROUND

¶ 4. On August 31, 1999, a jury found Treadway to be a sexually violent person. See Wis. Stat. § 980.05(5) (1997-98). Following a dispositional hearing, the trial court, on November 16,1999, entered a judgment finding Treadway to be a sexually violent person, and an order committing him to the custody of the Wisconsin Department of Health and Family Services (the Department) for institutional care in a secure mental health unit or facility. See Wis. Stat. § 980.065 (1999-2000).

¶ 5. On December 1, 1999, Treadway's trial counsel filed "Motions After Judgment and Order for Commitment (Post Verdict Motions)," essentially presenting the arguments offered in this appeal. Following consideration of two sets of briefs by the parties, the trial court, in a written decision filed July 26, 2000, denied Treadway's motions.

II. DISCUSSION

A. Timeliness of Appeal

¶ 6. Treadway filed his "Motions After Judgment and Order for Commitment (Post Verdict Motions)" fifteen days after entry of the order committing him to the custody of the Department, but three months after the verdict. The trial court, after reviewing the briefs it had requested regarding the timeliness of the motion, concluded, however, that "[d]ue to the hybrid nature of sexual predator cases, the jury's verdict does not represent the final disposition of the case as in civil trials." The coürt, therefore, went on to order additional briefs and, ultimately, to address the merits of Treadway's claims.

¶ 7. The State maintains that because Wis. Stat. ch. 980 proceedings are governed by the rules of civil procedure, and because Treadway failed to file his postverdict motions within twenty days of the verdict, as required in civil proceedings, he has waived his appeal as a matter of right. The State concedes, however, that this court nevertheless has discretion to retain jurisdiction and address Treadway's arguments. See Hartford Ins. Co. v. Wales, 138 Wis. 2d 508, 516-18, 406 N.W.2d 426 (1987). Treadway responds that because ch. 980 trials, like criminal trials, necessarily anticipate a separate dispositional phase, the timeliness of his motions should be pegged to the date of disposition.

¶ 8. The State acknowledges "the arguable logic in the circuit court's approach — that postverdict motions should await the final disposition of a chapter 980 case." The State maintains, however, that in the absence of any "express provision on the timing of postverdict (or postdisposition) motions" in Wis. Stat. ch. 980, Wis. Stat. § 805.16(1) of the rules of civil procedure governs; thus, the State argues, defense counsel was required to file postverdict motions within twenty days of the jury's verdict. Consequently, the State contends, our review is limited to: (1) a discretionary determination, in the interest of justice; and/or (2) a consideration of whether counsel was ineffective for failing to file postverdict motions within twenty days of the jury's verdict.

¶ 9. Wisconsin Stat. ch. 980 is silent on this issue. As the parties recognize, however, in a ch. 980 proceeding, postverdict motions filed within twenty days of a verdict would, in most cases, be hut a prelude to additional postdisposition motions. As the trial court observed in concluding that Treadway's motions were timely, "piecemeal appeals would . . . result" if the civil timeline for postverdict motions were applied.

¶ 10. We agree. Indeed, whether viewed as an appeal as a matter of right, or as an appeal addressed under either the interest-of-justice or ineffective-assistance-of-counsel standards the State suggests, a sexually violent person's challenges must not be precluded by counsel's failure to file postverdict motions within twenty days of the verdict. Concluding that such a failure constitutes waiver of appellate rights would work a manifest miscarriage of justice. See Wis. Stat. § 752.35 (1999-2000). And, clearly, if counsel's failure were deemed to preclude appellate review (and if, in this context, the ch. 980 proceedings were deemed quasi-criminal), the failure would be deficient and prejudicial, thus constituting ineffective assistance of counsel. See State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990); Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶ 11. We conclude, therefore, that while the legislature may choose to clarify this point by amending Wis. Stat. ch. 980, we need not, in the meantime, require counsel to jump through two hoops in order to preserve appellate rights. Accordingly, we conclude that a sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within twenty days of the commitment order. Thus, we now address the merits of Treadway's claims.

B. Timeliness of State's Petition

¶ 12. Treadway argues that the State failed to file its Wis. Stat. ch. 980 petition within ninety days of his release from a sentence for a sexually violent offense. See Wis. Stat. § 980.02(2)(ag) (1997-98); see also State v. Thiel, 2000 WI 67, ¶ 38, 235 Wis. 2d 823, 612 N.W.2d 94 ("[I]n a trial on a commitment petition filed under Wis. Stat. § 980.02(2), the State bears the burden to prove beyond a reasonable doubt that the petition was filed within 90 days of the subject's release or discharge from a sentence based on a sexually violent offense."); see also, State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, review denied, 2001 WI 88, 246 Wis. 2d 165, 630 N.W.2d 219 (No. 99-0316).

¶ 13. In 1981, Treadway was convicted of attempted second-degree sexual assault, an offense that qualifies as a "[s]exually violent offense" under Wis. Stat. § 980.01(6), thus potentially establishing the predicate offense for a Wis. Stat. ch. 980 petition. See Wis. Stat. § 980.01(6) (1997-98). His sentence for that offense, however, was only five years. But shortly after his 1984 mandatory-release parole for that offense, Treadway committed and was convicted of false imprisonment and three counts of reckless use of a weapon, as a habitual criminal. His parole was revoked and he returned to prison for nineteen additional months on the sexual assault sentence. He also received an aggregate sentence of seventeen years' imprisonment — eight years for the false imprisonment, and three years, consecutively, for each count of reckless use of a weapon, to be served concurrently with the sexual assault sentence. False imprisonment, however, is not a "sexually violent offense" under § 980.01(6) unless it is determined, in a proceeding under Wis. Stat. § 980.05(3)(b), that it was sexually motivated. See Wis. Stat. § 980.01(6)(b) (1997-98).

¶ 14. Thus, approximately twelve years before his 1998 release from the seventeen-year aggregate sentence for false imprisonment and reckless use of a weapon, Treadway had completed his sentence for second-degree sexual assault. The State, however, filed its- Wis. Stat. ch. 980 petition within ninety days of Treadway's completion of his final sentence — the seventeen-year aggregate sentence. Thus, Treadway asserts that the petition was untimely.

¶ 15. Wisconsin appellate courts have not determined whether a Wis. Stat. ch. 980 petition is timely, if filed within ninety days of an offender's discharge or release, when the offender has been serving concurrent sentences — for at least one sexually violent offense, for which the sentence was completed more than ninety days before the petition was filed; and for an offense that was not deemed a sexually violent offense, for which the sentence still was being served at the time the petition was filed. In State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997), however, we addressed a similar issue: whether a ch. 980 petition is timely, if filed within ninety days of an offender's discharge or release, when the offender has been serving consecutive sentences — for at least one sexually violent offense, for which the sentence was completed more than ninety days before the petition was filed; and for a non-sexually-violent offense, for which the sentence still was being served at the time the petition was filed. Id. at 66-70. We concluded that a petition filed under these circumstances is timely. Id. at 72. In part, we explained:

The Legislative Reference Bureau (LRB) note to the assembly bill which introduced [Wis. Stat. § 980.02(2)(ag)] stated that a petition should allege that a subject be "within 90 days of release from custody, commitment or supervision resulting from a conviction or adjudication for a sexually violent offense." ... [T]he LRB note suggests only a generalized conception of custody, rather than an examination of the numerical order in which various offenses were sentenced. This makes sense in light of ch. 980's twin objectives of protecting the public and treating high[-] risk sex offenders to reduce the chance of future sexual misconduct. The risk that a sex offender may re-offend is not affected by the order in which he [or she] serves time on consecutive sentences, and the public is not endangered until the offender is actually released into the community.
In short, there is absolutely no indication that the legislature intended to predicate ch. 980 proceedings on whether a sexually violent offense was the last sentence ordered in a string of consecutive sentences.

Id. (citations omitted). We conclude that this reasoning also applies to a set of concurrent sentences.

¶ 16. Wisconsin Stat. § 980.02(2)(ag) (1997-98) requires that a ch. 980 petition allege that the subject is "within 90 days of discharge or release, on parole ... or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense." Here, as in Keith, application of that statute to undisputed facts presents a question of law for our independent review. Id. at 68.

¶ 17. Although portions of our discussion in Keith were linked to the specific nature of consecutive sentences, see id. at 71-72, our essential reasoning, springing from consideration of the statute's legislative history, encompasses concurrent sentences as well. To conclude otherwise would make no sense. See Ashford v. Div. of Hearings & Appeals, 177 Wis. 2d 34, 44, 501 N.W.2d 824 (Ct. App. 1993) (appellate court "will not interpret a statute in a way that produces absurd results"). After all, if the State were required to file its Wis. Stat. ch. 980 petition within ninety days of the conclusion of a sentence for a sexually violent offense, despite the fact that the subject of the petition still could be serving additional time in an unbroken string of sentences, the petition could not accurately address the defendant's circumstances, mental condition, and treatment needs at the time of scheduled release. Discharge or release could be many months or, as in this case, many years away.

¶ 18. Moreover, in some cases, concurrent sentences, or concurrent and consecutive sentences, interlace, and some are further complicated by sentences after revocation. In such circumstances, the State easily could miscalculate the discharge or release date for the last sexually violent offense among the offenses not deemed sexually violent and miss the opportunity to seek Wis. Stat. ch. 980 commitment. Under such circumstances, both of ch. 980's "twin objectives" — the protection of the public and the treatment needs of the offender — would be disserved by precluding a court's consideration of commitment. See Keith, 216 Wis. 2d at 72; see also Grobarchik v. State, 102 Wis. 2d 461, 468, 307 N.W.2d 170 (1981) ("As employed in the language of the criminal law, a sentence of imprisonment is a term of incarceration or supervision on parole which continues until the defendant is finally discharged."). Thus, we conclude that because the State's petition was filed within ninety days of Treadway's release from a sentence for an offense that had not been deemed a sexually violent offense, which was being served concurrently with a shorter sentence imposed for a sexually violent offense, the petition was timely.

C. Number of Peremptory Challenges

¶ 19. Treadway argues that the trial court erred in allowing him five peremptory challenges (four, plus one additional challenge to account for the selection of an additional juror), rather than the seven he requested. He claims that he was denied due process of law because a Wis. Stat. ch. 980 commitment may carry what, in effect, can become a "lifetime commitment" for those who are never released. Thus, he maintains, because a charge punishable by life imprisonment allows for six peremptory strikes plus one more for selection of an additional juror, he should have received seven here. See Wis. Stat. § 972.03 (1997-98).

¶ 20. Treadway offers no specific argument or legal authority to support his due-process claim. See Wis. Stat. Rule 809.19(l)(e) & (3)(a) (1999-2000) (arguments in appellate briefs must be supported by authority). Indeed, as the Supreme Court observed, "it is important to recall that peremptory challenges are not constitutionally protected fundamental rights; rather, they are but one state-created means to the constitutional end of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42, 57 (1992). Thus, because peremptory challenges are "creatures of state law," our task is "to configure the peremptory rights . . . in Wisconsin on the basis of Wisconsin law." State v. Lindell, 2001 WI 108, ¶ 58, 245 Wis. 2d 689, 629 N.W.2d 223 (determining the peremptory rights of a defendant in a criminal case), reconsideration denied, 2001 WI 117, 247 Wis. 2d 1039, 635 N.W.2d 786. Doing so, we reject Treadway's argument.

¶ 21. Unlike a criminal defendant incarcerated for a life sentence, a person committed under Wis. Stat. ch. 980 is entitled to periodic review by the Department of whether release, conditional or otherwise, is appropriate, see Wis. Stat. § 980.07 (1999-2000), and to judicial review under some circumstances, see Wis. Stat. §§ 980.07, 980.08, 980.09, & 980.10 (1999-2000). Thus, Treadway's attempt to equate his circumstances with those of a criminal defendant imprisoned for life fails.

¶ 22. Moreover, as the State explains, Treadway actually received more peremptory challenges than he should have been allowed. Because a Wis. Stat. ch. 980 proceeding is a civil one, the rules of civil procedure apply unless a "different procedure is prescribed by statute or rule." State v. Brown, 215 Wis. 2d 716, 718-19, 573 N.W.2d 884 (Ct. App. 1997). Wisconsin Stat. § 805.08(3) (1997-98) provides, in part, that "[e]ach party shall be entitled to 3 peremptory challenges" plus "one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected." Treadway points to no other statute or rule that would displace § 805.08(3) in this case; he offers no reply to the State's argument. See State v. Peterson, 222 Wis. 2d 449, 459, 588 N.W.2d 84 (Ct. App. 1998) (unrefuted argument deemed admitted). Thus, we conclude, notwithstanding the potential for a Wis. Stat. ch. 980 commitment to last a lifetime, Treadway has failed to establish that he was entitled to any more peremptory challenges than those allowed under the rules of civil procedure.

D. Probation and Parole Agent's Testimony

¶ 23. Treadway argues that the trial court erred in allowing probation and parole agent Christopher Kittman to testify regarding the likelihood that he would reoffend. He contends that because Kittman "was not a trained psychologist or mental health professional," he was not qualified to offer an opinion "regarding dangerousness or likelihood of reoffense" or to "connect the likelihood of reoffense to any mental disorder" and, therefore, his opinion was irrelevant and should have been excluded.

¶ 24. Treadway relies on State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), which, in his estimation, requires the exclusion of "an opinion of dangerousness without a nexus to a mental disorder" — a disorder he contends Kittman was not qualified to diagnose and a nexus he contends Kittman was not qualified to provide. Overruling Treadway's objection, however, the trial court implied that Treadway's challenge was really aimed at the weight of Kittman's testimony, not its admissibility. The court also recognized that the State was not relying solely on Kittman; rather, that it was offering Kittman's opinion, in part, as a "foundation" supporting the State's next witness, Dr. Sheila J. Fields, a psychologist. Thus, the court concluded, Kittman could "testify as to his opinion with regard to a risk assessment, of how dangerous he feels the defendant would be." We agree.

¶ 25. Kittman testified that, for three years, he had been a Wisconsin Department of Corrections probation and parole agent assigned full-time to a specialized sex-offender unit. At the time of Treadway's Wis. Stat. ch. 980 trial, Kittman was handling all the ch. 980 "processes" for Milwaukee County. Asked whether "specific standards and procedures" were utilized by agents in supervising clients, Kittman responded:

Yes. The basics are needs versus risks. There's criteria and classifications that we use to monitor different offenders, how often we will see them, how much surveillance we will have on them. We take into consideration treatment issues, that they have corn-pleted treatment, their past record, attitude, past behavior, and that's basically it.

¶ 26. Assigned to Treadway's case in June 1999, approximately two months before Treadway's trial, Kittman had reviewed Treadway's entire case file, dating to offenses Treadway committed in 1978. Kittman testified that the file included "a social area pertaining to [Treadway's] past correctional experience, family history, his past, his living, his entire life basically," as well as his criminal convictions, "violation report and locational summaries, pre-sentence investigations . . ., police records, institutional paperwork," and other materials.

¶ 27. In his testimony, Kittman related the nature of Treadway's many offenses, his poor compliance with supervision, his refusal to participate in sex-offender treatment programs, and his numerous conduct reports while incarcerated, including those involving assaultive behavior. Kittman also explained that, as part of his duties, he conducted "risk assessments," for which he had been trained by the Department of Corrections, in order to "determine [the] risk of the individual and how we will supervise him in the community[; the] level of surveillance that we will maintain on the offender." To complete such an assessment, Kittman elaborated:

We take into consideration all aspects of the offender's life. We take into consideration past criminal offenses, the assaultiveness of those offenses, how they would cooperate with treatment, if they completed treatment, stable residence, stable employment, if they're deemed to be mentally ill, if they take their prescribed medication, ongoing use of alcohol and drugs, and then there's a compilation[,] and then from there it's decided on a level of risk.

Kittman testified that he had done a risk assessment of Treadway and had concluded that Treadway's risk of reoffending was "[v]ery high."

¶ 28. Wisconsin Stat. § 980.05(lm) (1997-98) states, in part, "At the trial to determine whether the person who is the subject of a petition under section 980.02 is a sexually violent person, all rules of evidence in criminal actions apply." Thus, to consider Treadway's claim, we refer to Wis. Stat. § 907.02 (1997-98):

Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

A trial court has discretion to determine whether proffered expert testimony satisfies the statutory criteria; we will not reverse the trial court's determination absent an erroneous exercise of discretion. See State v. Donner, 192 Wis. 2d 305, 317, 531 N.W.2d 369 (Ct. App. 1995); see also State v. Walstad, 119 Wis. 2d 483, 519, 351 N.W.2d 469 (1984). Here, we conclude that the trial court correctly allowed Kittman's testimony.

¶ 29. The fact that Kittman was not a psychologist or mental health specialist did not preclude his testimony. Under Wis. Stat. § 907.02 (1997-98), relevant experience, education, and/or training may qualify a witness to testify as an expert. See State v. Hollingsworth, 160 Wis. 2d 883, 895-96, 467 N.W.2d 555 (Ct. App. 1991); see also Tanner v. Shoupe, 228 Wis. 2d 357, 373-75, 596 N.W.2d 805 (Ct. App. 1999). At the time of Treadway's trial, Kittman was actively supervising about thirty-five released sex offenders and monitoring approximately fifty incarcerated sex offenders. He had been employed full-time in the specialized sex-offender unit for three years during which he had supervised hundreds of sex offenders. Clearly, central to Kittman's professional responsibility was the ability to assess whether those he was supervising would reof-fend. Prepared by both training and experience to assess Treadway, he was qualified to render an opinion on whether Treadway would reoffend. See Wis. Stat. § 907.04 (1997-98) ("Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.").

¶ 30. Additionally, the fact that Kittman did not provide the nexus to any mental disorder did not render his testimony inadmissible. In Post, the supreme court clarified that the "key to the constitutionality of the definition of mental disorder in chapter 980 is that it requires a nexus — persons will not fall within chapter 980's reach unless they are diagnosed with a disorder that has the specific effect of predisposing them to engage in acts of sexual violence." Post, 197 Wis. 2d at 306. Certainly, however, the supreme court was not requiring that testimony about an offender's history, and testimony relating that history to a diagnosed mental disorder, come from a single witness. See State v. Zanelli, 223 Wis. 2d 545, 555-56, 589 N.W.2d 687 (Ct. App. 1998) (Wisconsin Stat. § 980.05(3)(a) "does not confine expert testimony to any specific standard; it does not mandate the type or character of relevant evidence the State may choose to meet its burden of proof.").

487

¶ 31. Here, Kittman's assessment of Treadway's risk of reoffending was relevant to Treadway's "dangerousness" under Wis. Stat. ch. 980, see Wis. Stat. § 980.02(2)(c) (1997-98), and his testimony about Treadway's history, as well as his opinion that Treadway's risk of reoffending was very high, logically connected to the additional evidence the State introduced through the testimony of Dr. Fields. See State v. Pharr, 115 Wis. 2d 334, 346, 340 N.W.2d 498 (1983) (" '[A]ny fact which tends to prove a material issue is relevant, even though it is only a link in the chain of facts which must be proved to make the proposition at issue appear more or less probable.'").

E. Sufficiency of Evidence

¶ 32. Finally, Treadway asserts that the evidence was insufficient to support the jury's finding that he was a sexually violent person. In support of his argument, he contends: (1) that Dr. Fields "had no background in predicting future dangerousness," and that "[m]uch of her testimony was based upon her own beliefs and not on the actual information in the file"; (2) that he had been convicted of only one sexually violent offense, but that Dr. Fields "presumed," based on "absolutely no objective evidence," that because some of his other crimes involved women, they also were sexually motivated; (3) that he passed a penile plethysmograph test, showing "no response to children or to 'no consent' scenarios"; and (4) that evidence of his "institutional misconduct" should not have been admitted because its prejudicial effect outweighed its probative value.

¶ 33. To establish the basis for a Wis. Stat. ch. 980 commitment, the State must prove beyond a reasonable doubt that an offender is a sexually violent person. Wis. Stat. § 980.05(3)(a) (1997-08). Under Wis. Stat. § 980.01(7) (1997-98):

"Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

We will not reverse a ch. 980 commitment" 'unless the evidence, viewed most favorably to the [S]tate and the [commitment], is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found [the defendant to be a sexually violent person] beyond a reasonable doubt.' " State v. Marberry, 231 Wis. 2d 581, 593, 605 N.W.2d 612 (Ct. App. 1999).

¶ 34. Treadway's argument on this issue, minimally supported by authority and completely devoid of references to the record, has little merit. See Wis. Stat. Rule 809.19(1)(e) & (3)(a) (1999-2000); see also Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995) (appellate court need not consider "amorphous and insufficiently developed" arguments). While we need not address Treadway's claims, we do note that Treadway has offered no reply to any of the State's comprehensive responses, which include:

(1) The record establishes that Dr. Fields, a psychologist with the Mendota Mental Health Institute had worked with sex offenders since 1975, conducted twenty-one Wis. Stat. ch. 980 evaluations, reviewed Treadway's case, interviewed Treadway and applied various testing instruments designed to predict future dangerousness, consulted with other psychologists and evaluators, and thus had ample background and expertise to support her testimony.
(2) Dr. Fields testified that Treadway suffered from two mental disorders: paraphilia, not otherwise specified, non-consent; and personality disorder, not otherwise specified, with antisocial features. She also testified that, as a result of these disorders, Treadway was predisposed to commit acts of sexual violence.
(3) The record supports Dr. Field's opinion that one of Treadway's offenses, which had not previously been proven by the State to be sexually violent, was sexually motivated; indeed, the victim perceived that Treadway was going to rape her.
(4) Treadway has provided no authority to support his implicit argument that a negative result on a penile plethysmograph test precludes a finding that an offender is a sexually violent person.
(5) Treadway never objected to the introduction of evidence of his "institutional misconduct."

See Peterson, 222 Wis. 2d at 459 (unrefuted arguments deemed admitted). Treadway, therefore, has offered nothing to establish that the evidence was insufficient to support the jury's finding that he was a sexually violent person.

By the Court. — Order affirmed.

       We acknowledge that this conclusion counters our June 6, 2001 order in which we concluded that this court lacked jurisdiction to review the November 16, 1999 commitment order. In our June 6 order, we explained:
      Although that [November 16, 1999 commitment] order was final and appealable as of right pursuant to Wis. Stat. § 808.03, Tread-way failed to file a notice of appeal of the order within the time limits prescribed in Wis. Stat. § 808.04(1). The court may not extend that deadline, and failure to file a timely notice of appeal deprives the court of jurisdiction. Wis. Stat. Rules 809.82(2)(b) and 809.10(1)(b). See also State v. Brunette, 212 Wis. 2d 139, 142, 567 N.W.2d 647 (Ct. App. 1997).
      With respect to the July 26, 2000 order [denying Treadway's postverdict motions], we conclude that we have jurisdiction, although the scope of our review may be limited. This court has jurisdiction over final, appealable orders from which a timely notice of appeal is taken. See Hartford Insurance Co. v. Wales, 138 Wis. 2d 508, 516, 406 N.W.2d 426 (1987).... Treadway filed his notice of appeal within 90 days of the issuance of the July 26, 2000 order, making it timely with respect to that order. See Wis. Stat. § 808.04(1).
      While we appear to have jurisdiction over the appeal, however, the scope of our review may be limited in the following ways. First, because Treadway did not file his postverdict motions within twenty days of the verdict, as Wis. Stat. § 805.16 requires, the circuit court may have lacked competency to decide the motions. A circuit court's lack of competency over an issue results in waiver of the right to assert that issue on appeal. Hartford Insurance Co., 138 Wis. 2d at 514. Second, this-court is precluded from reviewing those issues that could have been raised in an appeal from the November 16,1999 commitment order. That is because, under Wis. Stat. Rule 809.10(4), an appeal brings before the court only those "nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon" (emphasis added). The commitment order was final and appealable and any issues it resolved are not within the scope of this appeal.
      (Footnote omitted.) As we will explain, while these legal principles remain sound, they are, to a very limited extent, qualified in the context of an appeal from a Wis. Stat. ch. 980 commitment order.

       The supreme court explained:
      [Wis. Stat. § 809.10] provides that, when a notice of appeal is timely filed, the court of appeals has jurisdiction over the appeal ....
      [Wis. Stat. § 752.35] allows the court of appeals to exercise its discretion to consider, as a part of plaintiffs' appeal, the issues raised by plaintiffs in their untimely motion in the circuit court, notwithstanding that the trial court was not given an opportunity to consider those issues before ordering judgment on the verdict. Under sec. 752.35, the court of appeals had jurisdiction to hear the appeal whether or not the motions on the particular issues were timely made. But the right on appeal is the right of the appeals court to exercise discretion. It is not a matter to be asserted as of right by the appellant.
      Numerous Wisconsin cases have held that a party's failure to properly or timely raise issues in the trial court by postverdict motions results only in a waiver of the opportunity for an appeal as of right on those issues. The reviewing court does not lose jurisdiction to consider such issues but may consider them in its discretion.

        Hartford Ins. Co., 138 Wis. 2d at 516-18.

       WISCONSIN Stat. § 805.16(1) (1997-98) states: "Motions after verdict shall be filed and served within 20 days after the verdict is rendered, unless the court, within 20 days after the verdict is rendered, sets a longer time by an order specifying the dates for filing motions, briefs or other documents." In this case, within twenty days after the verdict, Treadway's counsel did not request an extension of time for filing postverdict motions and the trial court did not extend the time.

       Wisconsin Stat. § 980.02(2)(ag) (1997-98) provides, in part, that "[a] petition filed under this section shall allege that.. . [t]he person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense."

       The State concedes that, at the commitment trial, it "did not argue that the 1984 false imprisonment conviction constituted a 'sexually violent offense1 for purposes of the timing of its chapter 980 petition."

       WISCONSIN Stat. § 972.03 (1997-98) provides, in part: 'When the crime charged is punishable by life imprisonment, the state is entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges .... Each side shall be allowed one additional peremptory challenge if additional jurors are to be selected under s. 972.04(1) [regarding the exercise of challenges]."

       Treadway also argues that the trial court improperly forced him to use one of his peremptory challenges to strike a juror whom, he claims, should have been removed for cause. The juror was a Milwaukee County Deputy Sheriff who, on prior occasions, had worked as a relief bailiff for the circuit court judge who was trying Treadway's case. She also was the niece-in-law of a former Secretary of the Wisconsin Department of Corrections. The juror, however, stated that she could be impartial, and the trial court denied Treadway's motion to strike her for cause.
      Treadway contends that the trial court erred in denying his motion to strike for cause and, therefore, that he is entitled to a new trial. He relies on State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997), requiring a new trial where a court improperly denies a motion to strike for cause and, as a result, effectively forces a defendant to use a peremptory challenge to remove the juror who should have been stricken. See id. at 14-16. That rule of Ramos, however, was overruled in State v. Lindell, 2001 WI 108, ¶¶ 111-20, 245 Wis. 2d 689, 629 N.W.2d 223. Moreover, given that Treadway actually received more peremptory challenges than he should have been allowed, even the reasoning of Ramos could not help him here. Thus, we need not determine whether the trial court erred in denying his motion to strike the juror for cause.

       Our summary of Kittman's testimony on the contents of Treadway's case file is incomplete due to a missing transcript page. See Record 41, transcript of proceedings of August 30, 1999, at 70-72.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Paul Venema, Defendant-Appellant.
    Court of Appeals

      No. 01-2502-CR.

      Oral argument June 13, 2002.

    Decided July 31, 2002.

    2002 WI App 202
    (Also reported in 650 N.W.2d 898.)

      On behalf of the defendant-appellant, there was oral argument and briefs submitted by Randall R. Garczyn-ski of Garczynski & Brennan Law Offices, S.C. of Elkhorn.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Edwin J. Hughes, assistant attorney general. There was oral argument by Edwin J. Hughes.

    Before Brown, Anderson and Snyder, JJ.
   BROWN, J.

¶ 1. Paul Venema was convicted of having a private interest in a public contract contrary to Wis. Stat. § 946.13(l)(a) (1999-2000). On appeal, Venema argues that he could not have violated the statute as a matter of law because he left office before the contract was executed. Therefore, according to Venema, he never improperly wore "two hats." We reject this argument because it relies on a very narrow construction of the statute which we find unacceptable. Venema also argues that the trial court erred by denying his motion in limine to keep out evidence relating to his conduct at town board meetings prior to January 1999. Correlatively, Venema contends that he was prejudiced by the State's closing argument in which it relied on that evidence to assert that he had negotiated the contract in his private capacity when he advocated positions as a town board supervisor before he submitted an application for the contract. We agree that the use of the pre-January 1999 evidence to establish the elements of the offense was improper and we remand for a new trial.

¶ 2. Venema's conviction stems from his conduct as a town board supervisor for the town of Delavan, a position he held from April 4, 1997 to April 13, 1999. Among the town board responsibilities is management of the town park. The town operates Community Park, which includes a boat launch and a community center and charges fees for access to park facilities. In 1998, the town entered into a contract with a third-party contractor, Conservation, Inc., to manage and maintain Community Park. The duties of Conservation, Inc. included maintaining the grounds and buildings, supervising park activities and collecting gate fees and boat launch fees. The contract covered the 1998 summer season and provided a rate of compensation of 35% of gate receipts.

¶ 3. In late July 1998, Conservation, Inc. walked off the job leaving the town with no park manager. Venema, as chairperson of the Park Committee, took over management of the park for the remainder of the season with the aid of other board members at no charge.

¶ 4. The 1999 contract was then discussed by the town board at meetings in September, October and November 1998. As we will detail later in this opinion, Venema participated in these meetings during which the board discussed the terms of the contract for the 1999 summer season.

¶ 5. In January 1999, the town took out an advertisement soliciting proposals from those interested in the 1999 park manager contract. The Park Committee received letters of interest from three persons, including Venema, who still served as chairperson of that committee. On February 25, 1999, the Park Committee interviewed Venema and one other applicant for the position of park manager. Following the interviews and discussion, the members of the committee voted in favor of Venema's proposal, which they recommended that the town board accept. Venema did not participate in the vote.

¶ 6. At a meeting on March 4, 1999, the town board approved a motion to hire Venema as the independent contractor for Community Park. The motion called for the board to work out a contract with Ven-ema. Venema, who was present at the meeting, did not participate in any discussion and did not vote on the motion.

¶ 7. Venema left office on April 13,1999. On April 16, he was presented with a contract for the park manager position for the 1999 season, which he signed. The contract was formally approved by the town board at a meeting on April 20, and after an addendum was added, the contract became effective on April 21. Ven-ema received $21,333 as park manager for the 1999 summer season.

¶ 8. In January 2001, Venema was charged with having a private interest in a public contract "on or about and between April 2, 1998 and April 16, 1999" in violation of Wis. Stat. § 946.13(l)(a) and (b). Venema filed a motion in limine seeking to keep out all evidence predating the advertisement posted by the town board in January 1999. In particular, Venema sought to exclude the fact that he had also submitted an application for the 1998 park contract but withdrew it before the Park Committee acted upon the applications. He also sought to exclude evidence of positions he asserted as town board supervisor in the fall of 1998 regarding the 1999 park contract he was later awarded.

¶ 9. At the motion hearing, Venema pointed out that the purpose of the statute was to prevent a public officer from wearing "two hats," and in this case, until notice of the position was posted and Venema had submitted a letter of interest, it was impossible for him to wear "two hats." In other words, Venema argued that he could not have had a private,.pecuniary interest in 1998 because the 1999 position had not yet been posted and he had not applied for it. According to Venema, the only time period relevant under the statute is from January 1999 to April 1999, from when he submitted his letter of interest to when he left office. Therefore, any evidence relating to his conduct while a supervisor in 1998 was irrelevant and prejudicial.

¶ 10. The State responded that at the 1998 town board meetings Venema actively facilitated formulation of what would become the 1999 contract which he eventually received. Stated differently, the State argued the evidence was relevant because it concerned Venema's actions as a public officer during 1998 in reference to the 1999 contract. The State's theory was that Venema's earlier conduct was "part and parcel of the crime. The crime is participating, is negotiating, bidding or entering into a contract where you have a private pecuniary interest." The State further opined that "it's highly relevant for the state to be able to show his history with the park contract and his participation in fashioning the park contract, the very park contract that he ultimately applied for[,] bids for and subsequently was awarded." The court ruled largely in favor of the State, holding that the only evidence not allowed in was Venema's earlier bid for the 1998 summer season contract and withdrawal of the bid.

¶ 11. The case proceeded to a jury trial on July 23, 2001. After the close of testimony, the court granted Venema's motion for a directed verdict on the Wis. Stat. § 946.13(1)(b) charge, reasoning that Venema had avoided liability under that statute by abstaining from voting on the contract. The jury returned a verdict on the remaining charge, finding Venema guilty of violating § 946.13(l)(a).

¶ 12. Venema presents two basic arguments in support of his challenge to his conviction. First, he argues that he could not have violated Wis. Stat. § 946.13(1) (a) as a matter of law because he left office before the contract was formally executed. According to Venema, "[s]ince the contract was not created until April 20,1999, any discretionary acts necessary to accrue criminal liability under the strict liability statute had to occur after that date." We understand Ven-ema to challenge the trial court's interpretation and application of the statute to a set of facts, which presents a question of law that we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997).

Requisites of Wis. Stat. § 946.13(l)(a)

¶ 13. Wisconsin Stat. § 946.13(l)(a) prohibits a public officer from negotiating, bidding for, or entering into a contract in which he or she has a private pecuniary interest if, at the same time, he or she has a role to play in an official capacity in the making of that contract. As the supreme court explained in State v. Stoehr, 134 Wis. 2d 66, 79-80, 396 N.W.2d 177 (1986), the statute imposes strict liability as a means to enforce a prescribed standard of conduct:

Section 946.13 is directed not at corruption but at conduct presenting an opportunity for corruption. Because a public officer's judgment may be impaired when the officer transacts government business in which he or she has a personal economic interest, the statute attempts to prevent public officers from succumbing to temptation by making it illegal for them to enter into relationships which are fraught with the danger that they will advance a private interest rather than a public good. (Citation omitted.)

¶ 14. The Stoehr court further observed that Wis. Stat. § 946.13 is based on the common law rules that an agent may not serve two masters and that an agent may not engage in self-dealing. Stoehr, 134 Wis. 2d at 80. The court quoted the following language from the Judiciary Committee Report:

The object of [sec. 946.13] is to prevent a public officer or employe from having private pecuniary interests which may influence him to exercise discretionary powers in his official capacity in a manner inconsistent with the interests of the public. It is derived from that rule of agency which prohibits an agent from serving two masters with opposing interests in the same transaction and the common-law rule which prohibits public officers from simultaneously holding incompatible offices.

Id.

¶ 15. The parties agree that the statute incorporates four elements for the offense of holding a private interest in a public contract, namely, (1) the defendant was a public officer; (2) the defendant negotiated (or bid for or entered into) a contract in a private capacity; (3) the defendant had a private pecuniary interest in the contract; and (4) at the same time, the defendant was authorized in his or her official capacity to participate in the making of the contract or to exercise discretion over the contract. See Wis JI — CRIMINAL 1740.

¶ 16. According to Venema's interpretation of the statute, he escapes liability because the contract was formed and executed after his term of office as supervisor. He acknowledges the statutory goal that a public officer must avoid self-dealing,, but claims he never improperly wore two hats because the contract never came before him while he was a public officer. According to Venema, because the contract did not exist during his tenure, he could not have had a pecuniary interest in it nor could he have had any discretionary authority over it while a public officer. Furthermore, he argues that because the contract was presented to him on a "take it or leave it" basis, he never negotiated the contract in his private capacity.

¶ 17. We agree with Venema that the timing of these elements is critical to a lawful conviction under the statute. We also keep in mind that the statute is not directed at corruption per se, but at conduct raising an opportunity where corruption can occur. See Stoehr, 134 Wis. 2d at 79. We will address each element of the offense separately.

1. Public Official

¶ 18. The parties do not dispute that Venema was a public officer from the date of his election on April 4, 1997, until the date he officially left office on April 13, 1999.

2. Negotiate, Bid or Enter into a Contract in his Private Capacity

¶ 19. Venema sent a letter of interest concerning the park manager position on or about January 23, 1999, while he was still a supervisor. He was presented the contract on April 16,1999, after he left office, and it was approved on April 20, 1999. According to Venema, he could not have "negotiated" in his "private capacity" until after the board selected him for the position and offered him the contract "over which to discuss terms and conditions." Moreover, in this particular case, Ven-ema asserts that no negotiation ever took place, even after he received the contract, because it was offered to him on a take it or leave it basis.

¶ 20. We reject Venema's argument that a contract has to be in existence in order for a violation to occur under Wis. Stat. § 946.13(l)(a). Such an interpretation is undermined by the plain meaning of the statutory language. The common meaning of "negotiate" is to "communicate with another party for the purpose of reaching an understanding[.]" Black's Law Dictionary 1059 (7th ed. 1999). Consequently, negotiation ordinarily precedes the formation of a contract and it is these precontractual bargaining relationships that raise the specter of self-interest if one of the parties is also a public official. By contrast, the practical effect of Venema's technical construction is to read the words "negotiate, bid or enter" completely out of the statute or render them surplusage. This we cannot allow. See Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980).

¶ 21. In addition, testimony in the record belies Venema's assertion that no negotiation of contract terms ever took place. Supervisor Dale Bernsteen, who was responsible for drafting the 1999 park contract, testified that after Venema had been selected for the park manager position and before he resigned, Venema asked him to increase the compensation to 50% of park receipts. Bernsteen rejected the request. A jury could have reasonably concluded that this unrefuted testimony describing a discussion about compensation under the contract is "negotiation."

¶ 22. A jury might also have reasonably concluded that Venema's interview for the position with Park Committee members constituted "negotiation." A person who interviews for a job necessarily advances a private interest. In this case, Venema was interviewed by a committee of which he was the chairperson. At the time of this interview, he was a public officer with an inside track on what the job entailed and how much had been budgeted for it. He also had authority to approve the application for the contract that he sought to win. Under these facts, a trier of fact might conclude that Venema was advancing a private interest while acting as a public officer, which is exactly the type of conduct that the statute seeks to redress.

3. Private Pecuniary Interest

¶ 23. Wisconsin JI — Criminal 1740 n.6 indicates that "pecuniary" has not been defined in Wisconsin case law. Venema relies on State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 515, 261 N.W.2d 434 (1978), which stated that to disqualify an adjudicator a pecuniary interest must be "a direct, certain and immediate interest, and not one that is indirect, contingent, incidental or remote." (Citation omitted.) We think it is plain that once Venema submitted his letter of interest on or about January 23, 1999, he had a direct, certain and immediate interest in the contract. He concedes as much in his brief. Although he had not yet been selected by the Park Committee and approved by the town board, a jury could reasonably conclude that he was serving two masters with opposing interests by advocating for his selection while serving as supervisor.

4. At the Same Time, Authorized or Required by Law to Perform a Discretionary Act Concerning the Contract

¶ 24. This fourth element requires the prior three elements to occur at the same time the public officer is authorized to exercise discretion regarding the contract. Again, we reject Venema's overly narrow construction of the statute that he was not authorized to act regarding the contract because it was not executed during his official tenure. Instead, his conviction under the statute could have been established by the following activities he performed in his private capacity while serving as supervisor: Venema submitted an application for the 1999 park contract, appeared before his own Park Committee to answer questions and advocate for his selection, discussed his interest in the contract with other supervisors, and sought to win a higher percentage of the park receipts in compensation. If the jury had convicted Venema based solely upon this evidence, which concerned his activities after he submitted his letter of interest and prior to his resignation, we would have no trouble affirming the verdict in this case.

Whether there was Harmless Error

¶ 25. Venema contends that evidence concerning his conduct in the fall of 1998 was improperly admitted to establish his liability under Wis. Stat. § 946.13(l)(a). This is substantially the same evidentiary argument he raised and lost in his motion in limine. We must first determine whether admission of the evidence was erroneous and, if it was, whether the error was harmless.

¶ 26. The evidence at issue concerned positions that Venema asserted during town board meetings in the fall of 1998. In September, the town board discussed the 1999 contract. Venema made a successful motion at this meeting that the duties continue to be performed by an independent contractor. Venema also suggested increasing the gate receipts to 40%. The board ultimately approved a figure of 35%. In October, Venema chaired a town board work meeting during which a draft of the 1999 park contract was presented and discussed. Venema voted to present the budget to the town board at the next meeting. In November, the town board approved the 1999 budget, which included provision for the 1999 park manager's contract. Venema was present but abstained from the vote on the budget.

¶ 27. The State at the hearing on the motion in limine set forth its theory of the case and how it would satisfy the elements of the offense under Wis. Stat. § 946.13(1):

[Venema's] Counsel doesn't get to just pick out of there which facts he doesn't want me to put into evidence when they are directly related to the crime and they've gone directly to the elements of the crime. What I intend to show is that [between]... April 2 of 98 and April 16 of 99, there is various participation by Mr. Venema as a public officer in this contract process.
[T]hroughout the year of 98 as the supervisor, Mr. Venema is doing things to facilitate that park contract, which he's ultimately getting in 99 .... [Ljooking at the history of events; we have Mr. Venema making application in April of '98; we have April 29 of 1998, where he is acting as the chairperson of the Park and Tourism committee; we have an event April 29 of '98, where he is participating in discussions on the appointment of the Park Gate and Boat Launch Manager position.... We have May 19 where Mr. Venema is reporting on who actually was hired that year to run the park, clearly knowledgeable of the contract and the dollar amount. We need to keep in mind that I have to show that this was for a contract of more than $15,000, and part of Mr. Venema's knowledge of that is in April of '98 until he's awarded the contract in '99, and he's acting as the Park Committee Chairperson. We have in August of '98 again discussion regarding request by the park contractor to be released from his contract, and discussions that the person that violated this contract, Mr. Venema, stating that the immediate issue is what are we going to do with the park for the remainder of the year. That's, well he's actively campaigning to the other board members to get this contract, which he does ultimately get.... These facts go directly to the elements. It's a direct proof of him as a public officer or employee, and it's direct proof that he is authorized or required by law to participate in the making of the contract in his capacity as a public officer or employee.

¶ 28. The court ruled that there should be no reference to the 1998 contract or Venema's participation in submitting an application or withdrawing it, unless the State brought and prevailed upon a motion for admission of other acts evidence. The court did not exclude any other pre-January 1999 evidence concerning Venema's actions on the town board.

¶ 29. To the extent that the court's ruling reflected its acceptance of the prosecutor's theory that the pre-January 1999 evidence was admissible to meet the elements of the offense, the ruling was in error. As a practical matter, Venema could not have had a pecuniary interest in or negotiated in his private capacity for a position that had not yet been posted. He did not serve two masters with opposing interests prior to his submission of his letter of interest. Simply put, none of the requisite elements under the statute had converged in the fall of 1998.

¶ 30. However, the State opined at oral argument that this evidence was otherwise admissible on the basis that it was helpful to the jury to provide background and context for the charges against Venema. Furthermore, in its brief the State claims that "Venema's conviction in no way turned upon the supposition that his guilt was established by activities that he took as a Town Supervisor before he submitted his application for the 1999 contract."

¶ 31. Our careful review of the record, however, reveals that the State, in introducing the evidence of Venema's activities prior to 1999, sought a much broader purpose than just to provide background and context. As we already recounted, the State made clear during the pretrial hearing that its intent was to use this evidence to establish the actual elements of the offense, not to merely provide background. Moreover, our reading of the record shows that the jury was improperly invited to rely on the pre-January 1999 evidence to convict Venema under the statute.

¶ 32. For example, during closing argument the prosecutor reminded the jury that at the town board meeting in September 1998, Venema moved to include the park contract in the budget and then advocated to increase the salary from 35% to 40%. The prosecutor then made the following comments: "The defendant clearly, as he had from April of '98 forward, always had the private interest to get that contract, to get that job, and to keep that job. It was his plan; that was his motive. He wanted the job; he wanted to earn the money." She continued in this vein by arguing, "ladies and gentlemen, it's that sort of corruption that this statute is designed to prevent against.... Clearly, beyond any reasonable doubt, beyond any doubt at all, he was acting in his private pecuniary interest. He was trying to line his own pocket a little bit more by arguing for a higher salary . . . [a]nd trying to negotiate better terms for himself." In other words, the prosecutor was not simply drawing an inference of self-dealing but she argued improperly that by his actions in September 1998 Venema had satisfied the following elements for the offense of having a private interest in a public contract: "[H]e's a Town Official. He was authorized by law to act. He had a private interest in this contract. And he was certainly trying to negotiate better terms for himself."

¶ 33. The prosecutor then referred to town board meetings in October and November which Venema attended and participated in. She stated, "[e]very time that park contract issue is brought up, he's at one of those meetings." According to the prosecutor, the meetings established the fourth element, which "does not require that he actually do something. It only requires that he is authorized by law to do it.... He clearly did what he was legally authorized to do." Finally, the prosecutor summarized her theory of the case with these last comments to the jury: "Mr. Venema crossed the line. Everything he did from 1998 into 1999 was designed, was planned, was part of his motivation to serve his own self interest, his private, financial pecuniary interest."

¶ 34. In sum, we determine that there was sufficient evidence pertaining to the relevant time period from January to April 1999 from which the jury could reasonably conclude that Venema "crossed the line" in violation of the statute. However, we have no way of knowing if the jury relied on that properly admitted and relevant evidence in arriving at its verdict. We do know that the prosecutor did not limit her discussion of the evidence establishing his guilt to that time frame. Instead, she clearly and vehemently urged the jury to rely on evidence prior to January 1999 to find Venema guilty of the offense. The admission and use of such evidence in that manner was not harmless error. We therefore reverse the judgment of conviction and remand the case for a new trial.

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

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 946.13(1)(a) and (b) provides:
      (1) Any public officer or public employee who does any of the following is guilty of a Class E felony:
      (a) In the officer's or employee's private capacity, negotiates or bids for or enters into a contract in which the officer or employee has a private pecuniary interest, direct or indirect, if at the same time the officer or employee is authorized or required by law to participate in the officer's or employee's capacity as such officer or employee in the making of that contract or to perform in regard to that contract some official function requiring the exercise of discretion on the officer's or employee's part; or
      (b) In the officer's or employee's capacity as such officer or employee, participates in the making of a contract in which the officer or employee has a private pecuniary interest, direct or indirect, or performs in regard to that contract some function requiring the exercise of discretion on the officer's or employee's part.

       In distinguishing the statutory elements required under paragraphs (a) and (b) of Wis. Stat. § 946.13(1), the trial court relied on attorney general opinions discussing the extent of the statute's application. One point emphasized by several opinions is that board members may avoid liability under paragraph (b) by abstaining from voting on matters relating to their private contracts. See, e.g., 76 Op. Att'y Gen. 90, 92 (1987). The opinions also advise that abstaining from voting does not avoid a violation of paragraph (a). See 76 Op. Att'y Gen. at 93.

       Specifically, the court in State v. Stoehr, 134 Wis. 2d 66, 79-82, 396 N.W.2d 177 (1986), held that Wis. Stat. § 946.13(1)(b) is a strict liability offense, but its discussion of the legislative history and intent is equally applicable to paragraph (a). See Wis JI — CRIMINAL 1740 (comment). Indeed, the parties in this case do not dispute that paragraph (a) is a strict liability statute.

       In the absence of a statutory definition, we construe words according to their common and approved usage, which may be established by a dictionary. Wis. Cent. Ltd. v. DOR, 2000 WI App 14, ¶ 11 n.6, 232 Wis. 2d 323, 606 N.W.2d 226, review granted, 2000 WI 36, 234 Wis. 2d 175, 612 N.W.2d 732 (Wis. Mar. 20, 2000) (No. 99-0194).

       During oral argument, the State pointed out that Venema did not object to the portions of the State's closing argument that he now challenges, suggesting that he has waived the right to appeal this issue. However, the controversial portion of the closing argument concerns evidence that was the subject of Venema's motion in limine. The definitive pretrial ruling on the motion served to preserve Venema's position for appeal. See State v. Bergeron, 162 Wis. 2d 521, 528, 470 N.W.2d 322 (Ct. App. 1991).


author: NETTESHEIM, PJ.

text:
    The Bay Breeze Condominium Association, Inc., Plaintiff-Appellant, v. Norco Windows, Inc. and JC Development Corporation, Defendants-Third-Party Plaintiffs, Morgan-Wightman Supply Co., Barker Lumber Company, American Family Mutual, Wausau Underwriters Insurance Company, The Twin City Fire Insurance, John Ingersoll and Colette Giefer, Defendants, Jeld-Wen, Inc., Defendant-Respondent, v. Terra II Construction, Inc., Kazmierski Builders & Remodelers, David P. Kaminski, Douglas A. Gallus, Dennis Schiller and Timothy Schiller, d/b/a Outsiders a/k/a Great Plains, and Steve Elkin and Gary Elkin d/b/a H.I.P., Third-Party Defendants.
    Court of Appeals

      No. 01-2689.

      Submitted on briefs June 7, 2002.

    Decided July 31, 2002.

    2002 WI App 205
    (Also reported in 651 N.W.2d 738.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Steven J. Slawinski of O'Neil, Cannon & Hollman, S.C. of Milwaukee.
    On behalf of the defendant-respondent Jeld-Wen, Inc., the cause was submitted on the brief of Kevin P. Whaley of Foley & Lardner of Milwaukee.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   NETTESHEIM, PJ.

¶ 1. The Bay Breeze Condominium Association, Inc. (the Association) appeals from a summary judgment granted in favor of Jeld-Wen, Inc. The Association filed this action against Jeld-Wen alleging that windows installed in certain condominium units were negligently designed and manufactured by Jeld-Wen, resulting in water damage inside and outside the units and between the interior and exterior walls. The Association maintained that the damage to the area surrounding the windows fell under the "other property" exception to the economic loss doctrine and, therefore, brought its action in tort, raising claims of strict products liability and negligence. The circuit court dismissed the Association's tort claims based on its determination that the claims are barred by the economic loss doctrine. The court found that the windows are part of an integrated structure such that the "other property" exception does not apply.

¶ 2. We affirm the circuit court's grant of summary judgment in favor of Jeld-Wen. We conclude that the damage caused to portions of the condominium units adjoining the defective windows does not fall within the "other property" exception to the economic loss doctrine.

FACTS

¶ 3. Bay Breeze is a luxury condominium complex located in Muskego, Wisconsin. It is comprised of sixteen buildings that are divided into seventy-four units. The buildings were constructed by JC Development Corporation in phases between 1989 and 1998. All of the windows installed at Bay Breeze were Norco brand windows. Those windows installed prior to July 1996 were designed and manufactured by Norco Windows, Inc. In July 1996, Jeld-Wen purchased the assets of Norco Windows, Inc., including the Norco brand name, and continued manufacturing and selling windows using the Norco brand name.

¶ 4. According to Jeld-Wen, its windows were used in only four units of the Bay Breeze condominium development. With these windows, Jeld-Wen provided to the original purchasers a two-year warranty for the "wood components, hardware, weather stripping, insect screens, and glazing beads that accompany its products ("components")" and further stating that these items were "free of defect that might unreasonably affect the product's normal functioning." Pursuant to the warranty, Jeld-Wen "will either provide replacement parts to the place of the product installation or repair any non-conforming components at its discretion."

¶ 5. On October 30, 1998, the Association filed this action against Norco Windows, Inc., and JC Development Corporation. Jeld-Wen was not named as a defendant until the Association filed its second amended complaint on November 17, 2000. The complaint alleged that by 1997, the Association discovered that it was experiencing an inordinate amount of problems related to the windows installed in the condominium units. These problems included leakage of water into the units and into the walls of the buildings at or around the windows; excessive peeling of paint on the exterior wooden window casements and frames and on the exterior of the buildings around or near the windows; rotting and deterioration of wood window casements and frames and of certain portions of the building; and water damage to the interior of the condominium units and structural components of the walls of certain buildings as a result of water leakage at or near the windows.

¶ 6. As to Jeld-Wen, the Association alleged strict products liability, negligence and breach of warranty. Jeld-Wen denied the Association's allegations and raised affirmative defenses, including a defense that the Association's claims were barred by the economic loss doctrine and by the terms of Jeld-Wen's express warranty. Jeld-Wen followed with a motion for summary judgment, which the circuit court granted. The circuit court determined that the Association's claims brought in tort were barred under the economic loss doctrine.

¶ 7. The Association appeals.

DISCUSSION

Standard of Review

¶ 8. When reviewing a grant of summary judgment, we apply de novo the standards set forth in Wis. Stat. § 802.08 (1999-2000). Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). Pursuant to § 802.08(2), summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Economic Loss Doctrine

¶ 9. The economic loss doctrine is a judicially created doctrine under which a purchaser of a product cannot recover from a manufacturer on a tort theory for damages that are solely economic. Kailin v. Armstrong, 2002 WI App 70, ¶ 27, 252 Wis. 2d 676, 643 N.W.2d 132. It is based on an understanding that contract law, and particularly the law of warranty, is better suited than tort law for dealing with purely economic loss in the commercial arena. Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 403-04, 573 N.W.2d 842 (1998). Therefore, when contractual expectations are frustrated because of a defect in the subject matter of the contract and the only damages are economic losses, the exclusive remedy lies in contract. Kailin, 2002 WI App 70 at ¶ 27.

¶ 10. The policies underlying the economic loss doctrine are: (1) to protect the parties' freedom to allocate economic risk by contract; (2) to encourage the party best situated to assess the risk of economic loss — the purchaser — to assume, allocate, or insure against that risk; and (3) to maintain the fundamental distinction between tort law and contract law. Id.

¶ 11. In protecting the distinction between tort and contract law, the economic loss doctrine recognizes:

In contract law, the parties' duties arise from the terms of their particular agreement; the goal is to hold parties to that agreement so that each receives the benefit of his or her bargain. The aim of tort law, in contrast, is to protect people from misfortunes which are unexpected and overwhelming. The law imposes tort duties upon manufacturers to protect society's interest in safety from the physical harm or personal injury which may result from defective products. Thus, where a product fails in its intended use and injures only itself, thereby causing only economic damages to the purchaser, "the reasons for imposing a tort duty are weak and those for leaving the party to its contractual remedies are strong."

Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 247-48, 593 N.W.2d 445 (1999) (citations omitted).

¶ 12. In protecting the freedom to contract, commercial parties may set the terms of their own agreement, including warranties, disclaimers and limitation of remedies and a manufacturer may negotiate with its distributors and purchasers to disclaim or limit its liability for economic losses. Daanen, 216 Wis. 2d at 407-08. This contractual allocation of risk allows purchasers to buy the product at a lower price and in some situations may be the only way to encourage manufacturers to produce certain products. Id. at 408. Therefore, as a matter of policy, when commercial parties have allocated their respective risks through contract, the economic loss doctrine instructs that it is more appropriate to enforce that bargain than to allow an "end run" around that bargain through tort law. Id. at 407.

¶ 13. The economic loss doctrine does not apply, however, if the damage is to property other than the defective product itself; in that case, a complainant may pursue an action in tort. Wausau Tile, 226 Wis. 2d at 247. "Similarly, claims which allege economic loss in combination with non-economic loss are not barred by the doctrine. 'In short, economic loss is damage to a product itself or monetary loss caused by the defective product, which does not cause personal injury or damage to other property.'" Id. (citation omitted).

Application of the "Other Property" Exception

¶ 14. The Association argues that the circuit court erred in granting Jeld-Wen's motion for summary judgment based on its finding that the "other property" exception did not apply to the Association's claim for damage caused to the defective windows or damage caused to the walls adjoining those windows.

¶ 15. Whether Jeld-Wen is entitled to summary judgment as a matter of law turns upon the application of the economic loss doctrine's "other property" exception. As stated above, that exception precludes the application of the economic loss doctrine when a product purchaser is claiming personal injury or damage to property other than to the product itself. Id. The circuit court determined that the Association's tort claims were barred by the economic loss doctrine because the windows were part of an "integrated system" precluding the application of the "other property" exception. While the Wisconsin appellate courts have discussed the integrated systems approach to the "other property" exception, no case as yet has addressed this doctrine in a building defect case.

¶ 16. The "integrated systems" limitation of the "other property" exception was discussed at length by our supreme court in Wausau Tile. In that case, Wau-sau Tile manufactured concrete paving blocks made of cement, aggregate, water and other materials for use primarily on exterior sidewalks. Id. at 241. Wausau Tile sued the company it contracted to supply the cement for its paving blocks, alleging that high levels of alkalinity in the cement caused problems with the paving blocks, such as excessive expansion and cracking. Id. at 242. The circuit court dismissed Wausau Tile's negligence and strict liability claims as barred by the economic loss doctrine. Id. at 244. Wausau Tile argued on appeal that the cost of repairing and replacing the paving blocks did not constitute economic loss because the paving blocks themselves were "property other than the defective product [the cement]." Id. at 249.

¶ 17. The supreme court rejected Wausau Tile's argument, holding that "[djamage by a defective component of an integrated system to either the system as a whole or other system components is not damage to 'other property' which precludes the application of the economic loss doctrine." Id. The court observed:

A product that fails to function and causes harm to surrounding property has clearly caused harm to other property. However, when a component part of a machine or a system destroys the rest of the machine or system, the characterization process becomes more difficult. When the product or system is deemed to be an integrated whole, courts treat such damage as harm to the product itself. When so characterized, the damage is excluded from the coverage of [the Restatement of Torts! A contrary holding would require a finding of property damage in virtually every case in which a product harms itself and would prevent contractual rules from serving their legitimate function in governing commercial transactions.

Id. at 249-50 (citing Restatement (Third) of Torts § 21 cmt. e (1997)). The supreme court held that the paving blocks were "integrated systems comprised of several component materials, including . . . cement." Id. at 251.

¶ 18. Two earlier Wisconsin cases similarly dismissed tort claims based on the economic loss doctrine using an integrated system analysis. In Midwhey Powder Co., v. Clayton Industries, 157 Wis. 2d 585, 460 N.W.2d 426 (Ct. App. 1990), Midwhey filed an action against Clayton alleging that Clayton's steam generators never operated properly thereby preventing the generators from being used as intended in Midwhey's on-site energy production system. Id. at 588-89. Mid-whey claimed that the generators produced steam with excessive moisture resulting in damage to the generators and to the turbines to which they connected, the generators vibrated badly and the water pumps frequently failed. Id. at 589.

¶ 19. The supreme court rejected Midwhey's claim that it could pursue an action in tort because the damage caused to the turbines that were attached to the generators constituted damage to "other property." Id. at 590-91. While acknowledging that under different circumstances a generator and turbine may be regarded as separate property, the supreme court noted that in this case the turbines connected to the steam generators as an integral part of a total energy saving system. Id. When "each is a component of a single system integrally connected to one another as part of an overall apparatus designed to produce electricity, the turbines cease to be separate property." Id. at 591. The court held as a matter of law that "because of the integral relationship between these two pieces of machinery, component parts of a single system, the turbines are not 'other property'. . . ." Id.

¶ 20. Likewise, in Cincinnati Insurance Co. v. AM International, Inc., 224 Wis. 2d 456, 591 N.W.2d 869 (Ct. App. 1999), this court rejected the plaintiffs argument that damage to a printing press as a result of a defective gear constituted "damage to other property." Id. at 463. Relying on Midwhey, we held that under the "integral system" test, the gear was a component part of the press, having "no function apart from the machine for which it was manufactured." Cincinnati Ins., 224 Wis. 2d at 463.

¶ 21. While acknowledging our holding in Cincinnati Insurance, the Association contends that Wisconsin law does not support the application of the "integrated system" test to building constructions. In support, it relies on City of LaCrosse v. Schubert, Schroeder & Associates, Inc., 72 Wis. 2d 38, 240 N.W.2d 124 (1976). There, the plaintiff sought recovery for damage to other property and to the product itself based on strict liability in tort. Id. at 43-44. Specifically, the plaintiff sought damages for the cost of replacing a leaking roof and repainting eaves damaged as a result of the roof. Id. In addressing the issue on appeal, the supreme court noted, "In the case at bar the damages to the product itself (the roof) are associated with damages to other property (the eaves)." Id. at 44.

¶ 22. Based on this statement, the Association contends that Wisconsin law "does not view a building or any portion of a building as an integrated system . . . ." We are unpersuaded for two reasons. First, the Association's reliance on City of LaCrosse is misplaced because the case was initially. limited by the supreme court's adoption of the economic loss doctrine in Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 917, 437 N.W.2d 213 (1989), and later expressly overruled by the supreme court in Daanen. Second, recent Wisconsin case law addressing the economic loss doctrine indicates an application of the integrated systems test to varying products under varying circumstances. See, e.g., Cincinnati Ins., 224 Wis. 2d at 463 (applying the integral systems test to the gear of a printing press); Midwhey, 157 Wis. 2d at 590-91 (applying the integral systems test to the generator in an energy producing system); Mose v. Tedco Equities, 228 Wis. 2d 848, 857-58, 598 N.W.2d 594 (Ct. App. 1999) (applying the integral system test to the groundwater of a parcel of land).

¶ 23. Although to date Wisconsin courts have not specifically addressed whether the integrated systems approach applies to building construction, other jurisdictions have addressed this precise issue. One case in particular, Casa Clara Condominium Ass'n, Inc. v. Charley Toppino and Sons, Inc., 620 So. 2d 1244 (Fla. 1993), provides guidance on this issue and was cited to by our supreme court in applying the integrated systems approach in Wausau Tile.

¶ 24. The plaintiffs in Casa Clara owned condominium units and single-family homes built with, and allegedly damaged by, concrete supplied by Toppino. Casa Clara, 620 So. 2d at 1245. The concrete contained a high salt content causing the reinforcing steel inserted in the concrete to rust, which then caused the concrete to crack and break off. Id. The plaintiffs sued Toppino for breach of common law implied warranty, products liability, negligence and violation of the building code. Id. The district court barred the action under the economic loss doctrine, holding that because no person was injured and no other property damaged, the plaintiffs had no cause of action against Toppino in tort. Id.

¶ 25. The plaintiffs argued on appeal that the concrete had damaged "other property" because the individual components and items of building material, not the homes themselves, are the products they purchased. Id. at 1247. In addressing the "other property" exception, the Florida Supreme Court held that in order to determine the character of the plaintiffs' loss and thus the appropriate remedy, "one must look to the product purchased by the plaintiff, not the product sold by the defendant." Id.

Generally, house buyers have little or no interest in how or where the individual components of a house are obtained. They are content to let the builder produce the finished product, i.e., a house. These homeowners bought finished products — dwellings—not the individual components of those dwellings. They bargained for the finished products, not their various components. The concrete became an integral part of the finished product and, thus, did not injure "other" property.

Id.

¶ 26. We adopt the reasoning of Casa Clara as the law in Wisconsin. We hold that the economic loss doctrine applies to building construction defects when, as here, the defective product is a component part of an integrated structure or finished product. The law of Casa Clara is consistent with Wisconsin precedent addressing component parts that cause damage to an integrated product, which results in only economic loss.

¶ 27. Here, as in Casa Clara, the homeowners purchased a finished product, their condominium units, the quality of which fell below expectations. While the Association argues that the defective windows caused damage to interior and exterior walls and casements, these are but other component parts in a finished product. Because of the integral relationship between the windows, the casements and the surrounding walls, the windows are simply a part of a single system or structure, having no function apart from the buildings for which they were manufactured. See Midwhey, 157 Wis. 2d at 591; Cincinnati Ins., 224 Wis. 2d at 463. Although the condominium units may have suffered incidental damage as a result of the failed windows, this does not take a commercial dispute outside the economic loss doctrine. Miller v. U.S. Steel Corp., 902 F.2d 573, 575-76 (7th Cir. 1990).

¶ 28. Jeld-Wen's warranty indicates the bargained for remedies in the event the windows fail to perform as expected. Presumably, the purchasers and Jeld-Wen negotiated the terms of this agreement. To allow the Association to recover in tort what are essentially contract damages as a result of a product's failure to perform as expected, would provide the Association with an end run around the terms of the parties' contract. State Farm Mutual Insurance Co. v. Ford Motor Co., 225 Wis. 2d 305, 336-37, 592 N.W.2d 201 (1999) ("Allowing tort recovery for economic loss would allow an end run around the bargain and provide recovery for which the parties neither bargained nor expected.").

CONCLUSION

¶ 29. We conclude, as did the circuit court, that Jeld-Wen is entitled to summary judgment as a matter of law. The Association's claim for damages to "other property" is barred by the economic loss doctrine.

By the Court. — Judgment affirmed.

       The second amended complaint named nineteen additional defendants, none of whom is a party to this appeal.

       In addition to asserting the economic loss doctrine, Jeld-Wen's summary judgment motion also challenged the Association's lack of standing and maintained that the breach of warranty claim was prohibited by its express warranty. The circuit court did not reach the issue of standing and the Association withdrew its breach of warranty claim at the summary judgment hearing on August 31, 2001. Thus, neither issue is before this court.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       While conceding that City of LaCrosse v. Schubert, Schroeder & Associates, Inc., 72 Wis. 2d 38, 240 N.W.2d 124 (1976), was decided prior to the supreme court's adoption of the economic loss doctrine in Sunnyslope Grading, Inc. v. Miller,

        Bradford & Risberg, Inc., 148 Wis. 2d 910, 437 N.W.2d 213 (1989), the Association argues that the holding of LaCrosse has never been reversed or overruled. The Association is wrong. While the supreme court discussed the City of LaCrosse holding in Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 415-17, 573 N.W.2d 842 (1998), and overruled any dicta in City of LaCrosse that conflicted with its holding in that case, the supreme court later clarified the status of City of LaCrosse in State Farm Mutual Insurance Co. v. Ford Motor Co., 225 Wis. 2d 305, 340, 592 N.W.2d 201 (1999). There the supreme court rejected the plaintiffs reliance on City of LaCrosse, noting that "LaCrosse was first limited by this court in Sunnyslope, 148 Wis. 2d at 917, in 1989, and then expressly overruled in 1998 in Daanen, 216 Wis. 2d at 416." State Farm, 225 Wis. 2d at 340. In light of this statement, made by the very court that decided LaCrosse, Sunnyslope and Daanen, we believe it to be clear that City of LaCrosse is no longer good law.

       The Association cites to Jacob v. Russo Builders, 224 Wis. 2d 436, 592 N.W.2d 271 (Ct. App. 1999), and Northridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 471 N.W.2d 179 (1991), in support of its contention that Wisconsin law has previously addressed and rejected the integrated systems test in the context of building defect cases. We are unpersuaded. The facts and circumstances of Jacob and Northridge render them inap-posite to the case at har.

        Jacob is an insurance case involving the interpretation of a business risk exclusion in a general liability policy. Jacob, 224 Wis. 2d at 440. The Jacob court expressly rejected reliance on cases involving the economic loss doctrine as they did not involve an insurance coverage issue and did not assist the court in determining how a reasonable insured would understand the insurance policy language at issue in that case. Here, we similarly reject the Association's reliance on an insurance coverage case in determining the application of the "integral system" test to a building defect case.

        Northridge is likewise inapplicable in this case. Northridge involved a claim based on the defendant's sale of fireproofing material containing asbestos. The plaintiffs argued that the fireproofing material contaminated their buildings and resulted in damages. Northridge, 162 Wis. 2d at 922. The circuit court determined that the plaintiffs' claims did not result from damage to other property and, therefore, were barred by the economic loss doctrine. Id. at 922-23. The supreme court reversed, holding that the complaint alleged damage to other property caused by the contamination of the plaintiffs' buildings with asbestos from the defendant's product, posing a health hazard. Id. at 923. The supreme court clarified its holding in Northridge in a later case, Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 263-64, 593 N.W.2d 445 (1999). There, the court instructed that Northridge is not applicable when, as here, the plaintiff is alleging that the product is of inferior quality. Wausau Tile, 226 Wis. 2d at 261. Further, the court indicated that it developed the Northridge rule "in response to the unique facts of that case" as it involved a defective product containing an inherently dangerous material. Wausau Tile, 226 Wis. 2d at 261. The "public safety exception" to the economic loss doctrine created by the court in Northridge was designed "to address special public safety concerns present in claims involving contamination by inherently hazardous substances like asbestos." Wausau Tile, 226 Wis. 2d at 264. Because this case does not involve any material inherently dangerous to the health and safety of humans, Northridge does not apply. Wausau Tile, 226 Wis. 2d at 265.

       The reasoning of Casa Clara Condominium Ass'n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244 (Fla. 1993), has been cited in a number of jurisdictions. See, e.g., Oceanside at Pine Point Condo. Owners Ass'n v. Peachtree Doors, Inc., 659 A.2d 267, 271 (Me. 1995) (holding that tort claim for water damage caused to condominium units by defective windows barred by economic loss doctrine); In re Masonite Corp, 21 F. Supp. 2d 593, 602-03 (E.D. La. 1998) (holding that tort claim against siding manufacturer for water damage and infestation caused defective siding barred by economic loss doctrine); Calloway v. City of Reno, 993 P.2d 1259, 1266-67 (Nev. 2000) (holding that economic loss doctrine applies to construction defect cases). We note, however, that the Casa Clara holding was called into doubt by a later Florida case, Moransais v. Heathman, 744 So. 2d 973, 981 (Fla. 1999).