source: Caselaw Access Project

author: DAVID T. PROSSER, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE N. PATRICK CROOKS, J.

license: Public Domain

text:
    Todd Nommensen, Plaintiff-Appellant-Petitioner, v. American Continental Insurance Company and Saint Mary’s Medical Center, Inc., a Wisconsin corporation, Defendants-Respondents.
    Supreme Court

      No. 99-3018.

      Oral argument April 30, 2001.

    Decided July 12, 2001.

    2001 WI 112
    (Also reported in 629 N.W.2d 301.)

      For the plaintiff-appellant-petitioner there was a brief by John Barry Stutt and Stewart, Peyton, Crawford, Crawford & Stutt, Racine, and oral argument by John Barry Stutt.

    For the defendants-respondents there was a brief by John A. Nelson, Timothy W. Feeley and von Briesen, Purtell & Roper, S.C., Milwaukee, and oral argument by John A. Nelson.

   DAVID T. PROSSER, J.

¶ 1. This is a review of a published decision of the court of appeals, Nommensen v. American Continental Insurance Co., 2000 WI App 230, 239 Wis. 2d 129, 619 N.W.2d 137, which affirmed a judgment by the circuit court for Racine County, Richard J. Kreul, Judge. The case involves an alleged error in the jury instructions in a medical negligence trial. The sole issue is whether the circuit court erred in failing to grant the plaintiffs request to modify the standard jury instruction on the ordinary burden of proof in a civil case by substituting the word "probability" for the word "certainty."

¶ 2. The court of appeals affirmed the circuit court's decision to give the standard instruction. Wisconsin JI — Civil 200 (civil jury instruction 200 or instruction 200) states the quantum of evidence required in an ordinary civil case — that is, "the greater weight of the credible evidence." It also provides a standard for the degree of certitude required of the fact finder — that is, "reasonable certainty." These two elements are combined in the second sentence of the instruction, which we place in context:

The burden of proof.. .rests upon the party contending that the answer to a question should be "yes." This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.

Wis JI — Civil 200 (emphasis added).

¶ 3. The plaintiff-petitioner contends that this instruction is ambiguous or confusing and constitutes an erroneous statement of the burden of proof. He argues that the problem would be solved by replacing the word "certainty" in the instruction with the word "probability."

¶ 4. In making this argument, the petitioner raises important and disquieting questions that have been debated in this court for more than a century. We take these questions seriously. Yet, we are not convinced that the present jury instruction on the ordinary burden of proof is erroneous as a matter of law, that the petitioner's formulation of a new instruction would resolve the suggested dilemma, or that the petitioner has made the case for a new trial. We are especially convinced that this court should not assume the responsibility of writing a new jury instruction on the burden of proof. Accordingly, we affirm the decision of the court of appeals.

¶ 5. As we reach this conclusion, we respectfully urge the Wisconsin Civil Jury Instructions Committee to revisit Wis JI — Civil 200 to explore whether the instruction can be improved without abandoning precedent on the two-element approach to the ordinary burden of proof.

¶ 6. The petitioner fails to persuade us to grant the specific relief he requested — a new trial on the issue of liability. However, the issue of whether instruction 200 is a satisfactory instruction is well developed in the parties' briefs and is of such statewide import that it requires our attention. We are mindful that we must maintain a wide-angle view of the instruction and its role in assisting juries to reach the proper answers to verdict questions.

FACTS & PROCEDURAL HISTORY

¶ 7. Todd Nommensen was a patient for chest surgery at St. Mary's Medical Center in Racine. He claims that during his recovery, he suffered nerve damage when he received an injection of the pain medication Toradol in the front of his right thigh. He contends that the front of the thigh is an improper body location to administer an injection because there is a nerve that runs across the leg that can be struck by a needle. He alleges that the pain and numbness resulting from the nerve damage is particularly troublesome to him because he is blind and the injury interferes with his non-sight sensory perceptions.

¶ 8. When Nommensen filed proposed jury instructions with the circuit court, he asked the court to replace the word "certainty" with the word "probability" in civil jury instruction 200 on the ordinary burden of proof. The circuit court declined to do so.

¶ 9. Thus, the circuit court charged the jury with instruction 200 without modification. This instruction read as follows:

The burden of proof, other than on question_ (e.g., comparison of negligence) and the damage questions in the verdict, rests upon the party contending that the answer to a question should be "yes." This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.
By the greater weight of the evidence is meant evidence which when weighed against evidence opposed to it has more convincing power. Credible evidence is evidence which in the light of reason and common sense is worthy of your belief.
If you have to guess what the answer should be after discussing all evidence which relates to a particular question, then the party having the burden of proof as to that question has not met the required burden.

Wis JI — Civil 200 (emphasis added).

¶ 10. The jury was then asked to answer three questions in a special verdict. The jury answered "yes" to the question whether St. Mary's was negligent through its employees. The jury answered "no" to the question whether St. Mary's negligence caused injury to Nommensen. Finally, the jury wrote that $95,000 would "fairly and adequately compensate" Nommen-sen "for past and future pain, suffering and disability."

¶ 11. On appeal, Nommensen raised three issues. All were rejected by the court of appeals.

¶ 12. First, the court of appeals ruled that the circuit court properly admitted testimony from nurse Ellen Buggy on behalf of St. Mary's about certain properties of Toradol and its propensities for causing discomfort or harm even when properly injected. Nom-mensen had argued that this testimony spoke to a superseding cause for his injury which St. Mary's had not pled as an affirmative defense. Second, the court ruled that the circuit court properly instructed the jury when it used Wis JI — Civil 200 without modification. Third, the court ruled that the five-sixths verdict requirement had been met, despite dissents by various jurors on all three verdict questions.

¶ 13. Only the second issue is before this court. The court of appeals indicated that it was bound by precedent on the validity of the burden of proof jury instruction. Nommensen, 239 Wis. 2d 129, ¶ 16. However, Presiding Judge Richard S. Brown wrote a lengthy concurring opinion suggesting that this court reevaluate the use of the phrase "reasonable certainty" within Wis JI — Civil 200. Id. at ¶¶ 25-48 (Brown, P.J., concurring). Judge Brown's concurrence weighed the pros and cons of the current instruction and found it wanting. His exegesis on the subject requires a thoughtful response.

ANALYSIS

¶ 14. This case presents a single issue for our review: Did the circuit court erroneously instruct the jury when it used Wis JI — Civil 200, the standard civil jury instruction on the ordinary burden of proof?

¶ 15. This issue is of great import to all civil trials in this state because the focus of criticism applies not only to the ordinary burden of proof (instruction 200) but also to the middle burden of proof (Wis JI — Civil 205). Thus, the legal issue posed must be analyzed against the backdrop of all civil litigation.

¶ 16. Wisconsin JI — Civil 200 embodies two related elements: (1) degree of certitude and (2) quantum of evidence. State ex rel. Brajdic v. Seber, 53 Wis. 2d 446, 448, 193 N.W.2d 43 (1972). There appears to be no dispute that the appropriate quantum of evidence in an ordinary civil case is "the greater weight of the credible evidence." This expression of the required quantum of evidence "is an exact synonym for 'fair preponderance' and much more understandable by the average juror." Wis JI — Civil 200 cmt. (citing Wangen v. Ford Motor Co., 97 Wis. 2d 260, 299, 294 N.W.2d 437 (1980)).

¶ 17. The criticism of the instruction is thus pointed toward the other element — the degree of certitude. Nommensen argues in essence that the present instruction is confusing, potentially misleading, and substantively wrong. In this criticism he is supported by Judge Brown and a provocative article by Attorney Alan E. Gesler. Alan E. Gesler, The Burden of Proof: How Certain is Reasonable?, 14 The Verdict 11 (1991).

HISTORICAL ANALYSIS

¶ 18. Nommensen argues that the precedent supporting use of the phrase "reasonable certainty" is based on an erroneous understanding of the law. He is joined in this criticism by Judge Brown and Attorney Gesler.

¶ 19. The current version of Wis JI — Civil 200 "Burden of Proof: Ordinary" dates from 1972. It follows an earlier version of the instruction adopted by the Wisconsin Civil Jury Instructions Committee in 1960. The committee stated in both its 1960 and 1972 comments to instruction 200 that the phrase "satisfied to a reasonable certainty" had been used since Kausch v. Chicago & Milwaukee Electric Railway Co., 176 Wis. 21, 26, 186 N.W. 257 (1922).

¶ 20. In 1967 in Savina v. Wisconsin Gas Co., Justice E. Harold Hallows wrote for the court:

In this type of civil case the burden of the plaintiff is only to satisfy the jury to a reasonable certainty. The plaintiff is not required to remove all uncertainty. Kausch v. Chicago & M.E. Ry. Co. (1922), 176 Wis. 21, 186 N.W. 257. However, in instructing generally on burden of proof the court correctly informed the jury that it was to be satisfied or convinced by a fair preponderance of the evidence to a reasonable certainty.

36 Wis. 2d 694, 703, 154 N.W.2d 237 (1967) (citation omitted).

¶ 21. By January 4, 1972, Justice Hallows had become Chief Justice, and on that date he wrote in State ex rel. Brajdic v. Seber:

Every standard burden of proof, other than the standard applied to criminal cases, is composed of two elements: (1) The degree of certitude required of the trier of the fact, i.e., reasonable certainty, and (2) either the quantity of the evidence, i.e., the greater weight or convincing power, or the quality of the evidence, i.e., clear, satisfactory, and convincing.

53 Wis. 2d at 448.

¶ 22. This is very close to what Justice Hallows had written in 1960 in Kuehn v. Kuehn: "We do not believe there is any substantial difference in the two statements of the rule, both have two elements, reasonable certainty and the required quantity and quality of the evidence." 11 Wis. 2d 15, 29-30, 104 N.W.2d 138 (1960).

¶ 23. In Kuehn, Justice Hallows quoted from Will of Ball: Ball v. Boston, 153 Wis. 27, 35, 141 N.W. 8 (1913), to the effect that "in ordinary civil matters the person on whom the burden of proof rests may rely upon evidence establishing the facts to a reasonable certainty," but in specific civil cases with a higher burden, such as " 'where fraud is the gist of the matter, then he must go further, — not to the extent of establishing the charge with the highest degree of certainty, but to that one which rests, not only in reasonable certainty, but on evidence which is clear and satisfactory.' " Kuehn, 11 Wis. 2d at 29 (quoting Ball, 153 Wis. at 35).

¶ 24. We do not know whether the committee on civil jury instructions adopted the analysis of Justice Hallows from Kuehn in 1960 or Brajdic in 1972, or whether Justice Hallows borrowed from the work of the committee, which was created and had been working since 1959; but there is certainly an overlap of analysis and wording in Wis JI — Civil 200.

¶ 25. The instruction on the ordinary burden of proof has remained essentially unchanged since 1972. It was specifically embraced by this court in Victorson v. Milwaukee & Suburban Transportation Corp., 70 Wis. 2d 336, 356-57, 234 N.W.2d 332 (1975). Justice Leo Hanley, the author of Victorson, was a member of the court when it decided both Savina and Brajdic. He cited Savina in his analysis. Victorson, 70 Wis. 2d at 357.

¶ 26. We think the Wisconsin Civil Jury Instructions Committee was standing on solid ground when it commented that "The Committee believes the term 'reasonable certainty' has been firmly established in our case law and accurately reflects the degree of certitude jurors must reach in answering verdict questions." Wis JI — Civil 200 cmt.

¶ 27. The linkage between the old preponderance standard and "reasonable certainty" predates Kausch, as evidenced in Will of Ball. For example, in Grotjan v. Rice in 1905, the court observed:

What is meant by "preponderance of the evidence," the manner in which the jury should proceed in solving disputed propositions on evidence, and the degree of certainty to which they should arrive before rendering a verdict, are elementary. . . .The term "preponderance of the evidence" suggests the quality of outweighing in convincing power. So it means preponderance in the convincing power of the evidence. In the orderly way of determining the truth from evidence, the jury first consider the same and determine on which side of the dispute there is the greater weight thereof, the more convincing indications as to where the truth lies. They next determine whether such greater indications are sufficiently convincing to satisfy them of the truth of the matter, not beyond a reasonable doubt, for no such degree of certainty in civil cases is required,.. .but satisfied of the truth to a reasonable certainty. That doctrine has been frequently announced in this court.

124 Wis. 253, 258, 102 N.W. 551 (1905) (citations omitted).

¶ 28. Favorable reference to reasonable certainty was reiterated in Thoma v. Class Mineral Fume Health Bath Co. in 1943, where the court approved an instruction that read:

"If you are convinced by the preponderance of the evidence to a reasonable certainty that you should answer this question 'Yes,' then make that your answer. If you are not so convinced, your answer to this question should be 'No'."

244 Wis. 347, 355, 12 N.W.2d 29 (1943).

¶ 29. In Kausch this court emphasized the importance of the phrase "reasonable certainty":

Error is assigned because the court did not charge the jury with reference to the burden of proof. The questions were so framed that the burden of proof was on the affirmative side in each instance. With reference to each question the jury were told that before they could return an affirmative answer they must be satisfied to a reasonable certainty by a consideration of all the evidence that the fact inquired about existed. If not so satisfied, they were directed to answer the question "No." This most effectually placed the burden of proof upon the party required to prove the affirmative of each question propounded, and made a charge with reference to the burden of proof unnecessary. The trial judge, in his opinion upon the motions after verdict, stated that this was his uniform practice, and expressed the opinion that it was a better and safer practice than to attempt to define the terms "burden of proof' and "preponderance of evidence." It appears to be a simple and effective way of impressing upon the jury the rule which should govern them in arriving at their determination, and rendered an instruction with reference to the burden of proof unnecessary.

176 Wis. at 26. Kausch has drawn criticism for straying from the two-element analysis of Brajdic. The Kausch approach may not square entirely with the two-element analysis, but it certainly does not invalidate "reasonable certainty" as an essential element of the burden of proof.

¶ 30. Other cases could be cited. Consequently, we disagree with the criticism that "reasonable certainty" is not firmly established in our case law, or that it is not well supported by the cases that adopted it. Reasonable certainty is one of the two essential elements of the ordinary burden of proof in this state.

POTENTIAL TO MISLEAD

¶ 31. A more serious criticism of Wis JI — Civil 200 is that it is misleading as written, that it confuses the jury as to the plaintiffs burden of proof. This criticism is best summarized by Judge Brown when he writes that "using the term 'reasonable certainty' in the instruction creates too high of a risk that jurors will hold a plaintiff to a higher burden of proof than intended." Nommensen, 239 Wis. 2d 129, ¶ 25 (Brown, P.J., concurring).

¶ 32. Both Judge Brown and Attorney Gesler turn to dictionary definitions of certainty. Gesler cites Black's Law Dictionary 205 (5th ed. 1979) for the definition that certainty means "absence of doubt." Gesler, supra, at 12. Judge Brown quotes The Random House Dictionary of the English Language, Unabridged 339 (2d ed. 1987) that certainty means "an assured fact" and "without a doubt." Nommensen, 239 Wis. 2d 129, ¶ 27 (Brown, P.J., concurring). They support their premise with a statistical study from The New England Journal of Medicine. Augustine Kong et al., How Medical Professionals Evaluate Expressions of Probability, 315 New Eng. J. Med. 740, 740-44 (1986). Citing this study, Gesler writes that "[u]se of the word certainty produces in the hearer an expectation of probability of over 90%." Gesler, supra, at 12. Judge Brown writes of the study:

The word "certain" had a probability rating of 99%. When the adverb "almost" was added to the adjective "certain," the median moved from 99% to 94%. The data thus points to the unescapable conclusion that words matter and a person being asked to find something to a "certainty" thinks of the task as being asked to find something to a 99% degree of probability or higher.

Nommensen, 239 Wis. 2d 129, ¶ 29 (Brown, P.J., concurring) (citations omitted).

¶ 33. Nommensen contends that the term "reasonable certainty" means "without a doubt." He argues that the

instruction makes no attempt to explain how jurors are to deal with two different, separate pieces of information presented to them: 1) that the jurors must be convinced in their own mind and 2) that they must be convinced that one side's evidence is probably more true than the other side's. There is no explanation in the jury instruction as to how to weigh the evidence. This absence of explanation creates the very real danger that a juror will use the "reasonable certainty" language as a method by which to analyze the two pieces of information. Presently, a jury can easily understand the instruction to say that unless the plaintiff s evidence is true to a "reasonable certainty" he may not be considered right enough for the plaintiff to win. The use of the term "reasonable certainty" creates too high a danger that jurors will hold the plaintiff to a higher proof standard than intended and that they may believe they need to be satisfied to a greater than required degree of precision.

¶ 34. Judge Brown comes to the same conclusion. He writes:

I am convinced that a reasonable juror could understand the instruction to say as follows: "Plaintiffs evidence is weighed against the defendant's and the job of deciding whose evidence has more weight is yours. But before you may find that the plaintiff s evidence has more weight, you must first be satisfied that the plaintiff has provided you with evidence that is absolutely true or nearly absolutely true."

Nommensen, 239 Wis. 2d 129, ¶ 45 (Brown, P.J., concurring).

¶ 35. Nommensen's solution to all this is to substitute the word "probability" for the word "certainty" in the instruction. He also picks up an idea from the Gesler article that perhaps the mental element should be dropped from the instruction altogether. He urges the court to rewrite the instruction.

¶ 36. The purpose of a jury instruction is to fully and fairly inform the jury of a rule or principle of law applicable to a particular case. Grube v. Daun, 213 Wis. 2d 533, 549, 570 N.W.2d 851 (1997); Nowatske v. Osterloh, 198 Wis. 2d 419, 428, 543 N.W.2d 265 (1996). We agree with Judge Brown that the job of an instruction is not only to state the law accurately but also to "explain what the law means to persons who usually do not possess law degrees." Nommensen, 239 Wis. 2d 129, ¶ 45. Thus, a jury instruction should be as clear and simple as reasonably possible to aid the jury in understanding the law.

¶ 37. The jury instruction committees play a vital role in Wisconsin's system of justice. Kim v. Am. Family Mut. Ins. Co., 176 Wis. 2d 890, 896-97, 501 N.W.2d 24 (1993). Their often unheralded work is indispensable to the successful operation of the courts. The desirability of uniform instructions for most cases is not open to debate because uniformity, supported by scholarship and attention to detail, tends to assure that litigants will be treated fairly and equally in the court system.

¶ 38. Crafting jury instructions is demanding and meticulous work. It invites constructive comment and suggestion so as better to appreciate the clarity and workability of each instruction.

¶ 39. We are impressed with an observation in Grotjan v. Rice, 124 Wis. at 258: "Efforts to state elementary principles in ways not found in the books are quite liable to work harm. The better way is not to depart from those definitions which have received judicial approval." We do not mean by this to suggest that the formulations of existing jury instructions cannot be improved. We do mean to say that revising jury instructions on fundamental principles requires caution.

¶ 40. It is not the role of the supreme court to draft jury instructions, particularly instructions that have the potential of affecting every civil trial in Wisconsin. We have often referred difficult instruction issues to the jury instruction committees. State v. Lohmeier, 205 Wis. 2d 183, 199, 556 N.W.2d 90 (1996); Nowatske, 198 Wis. 2d at 449; State v. Garcia, 192 Wis. 2d 845, 860 n.6, 532 N.W.2d 111 (1995); Foley v. City of West Allis, 113 Wis. 2d 475, 495, 335 N.W.2d 824 (1983).

¶ 41. In this instance, the change petitioner seeks in instruction 200 would require adjustments in many other civil jury instructions. Neither the petitioner nor the respondents have discussed the effect of the proposed change in instruction 200 on other jury instructions.

¶ 42. According to our computer search of the instructions, the words "reasonable certainty" appear in about 60 jury instructions, in addition to Wis JI — Civil 200. Most of these instructions read as instruction 200 does: "to a reasonable certainty by [or "from"] the [or "a"] greater weight of the credible evidence." Wis JI — Civil 107 (Submission on Ultimate Fact Verdict); 108 (Submission on Ultimate Fact Verdict When Court Finds One or More Parties at Fault); 350 (Presumptions: Conflict as to Existence of Basic Fact; Evidence Introduced from Which Nonexistence of Presumed Fact May be Inferred); 352 (Presumptions: Existence of Basic Fact Uncontradicted; Evidence Introduced from Which Nonexistence of Presumed Fact May be Inferred); 353 (Presumptions: Deceased Person was not Negligent); 1001 (Negligence: Fault: Ultimate Fact Verdict); 1023 (Medical Negligence); 1023.8 (Professional Negligence: Chiropractor — Treatment); 1023.10 (Professional Negligence: Dental); 1026 (Bailment: Negligence of Bailee May be Inferred); 1114 (Duty of Preceding Driver to Following Driver: Lookout); 1580 (Comparative Negligence: Plaintiff Driver and One or More Defendant Drivers); 1585 (Comparative Negligence: Plaintiff-Guest and Host-Defendant Negligent); 1590 (Comparative Negligence: Plaintiff-Guest Passively Negligent; Host (or Other Driver) Negligent); 1591 (Comparative Negligence: Guest Passively Negligent; Claims Against and Among Drivers; Apportionment from One Comparative Negligence Question); 1592 (Comparative Negligence: Guest Passively Negligent; Claims Against and Among Drivers; Apportionment of Comparative Negligence from Two Questions); 1600 (Servant: Driver of Automobile (Presumption from Ownership of Vehicle)); 1723 (Enhanced Injuries); 1730 (Damages: Duty to Mitigate; Physical Injuries); 1731 (Damages: Duty to Mitigate); 2501 (Defamation: Private Individual Versus Private Individual, No Privilege); 2507 (Defamation: Private Individual Versus Private Individual with Conditional Privilege); 2509 (Defamation: Private Individual Versus Media Defendant (Negligence Standard)); 2552 (Invasion of Privacy: Publication of a Private Matter: Conditional Privilege); 2760 (Bad Faith by Insurance Company (Excess Verdict Case)); 2780 (Intentional Interference with Contractual Relationship); 3725 (Damages: Future Profits); 5001 (Paternity: Child of Unmarried Woman) (recommending burden of proof instruction "[i]f the statistical probability of paternity is 99.0% or higher"); 8060 (Adverse Possession Not Found on Written Instrument (Wis. Stat. § 893.25)).

¶ 43. Other instructions reverse the order of the element of certitude and the necessary quantum of evidence. These instructions read: "by the greater weight of the credible evidence to a reasonable certainty." Wis JI — Civil 1001 (Negligence: Fault: Ultimate Fact Verdict) (also contains an inverted version of the phrase); 1381 (Negligence: Teacher: Duty to Supervise Students); 2006 (Battery: Self-Defense); 2006.5 (Battery: Defense of Property); 2770 (Termination of Dealership (Dealer/Plaintiff — Grantor/Defendant)); 3260 (Strict Liability: Duty of Manufacturer to Ultimate User).

¶ 44. Eliminating the phrase "reasonable certainty" in instruction 200 would affect other instructions in an assortment of ways. Wis JI — Civil 50 (Preliminary Instructions Before Trial) (explaining that burden of proof cannot be met absent "reasonable certainty"); 1026.5 (Bailment: Negligence of Carrier Presumed) ("to a reasonable certainty by a fair preponderance of the evidence that it is more probable"); 1054 (Equipment and Maintenance of Vehicles: Brakes) ("from all of the credible evidence, you are satisfied to a reasonable certainty"); 2610 (Malicious Prosecution: Advice of Counsel as Defense) ("The burden is upon (defendant) to satisfy you to a reasonable certainty. . . ."); 3725 (Damages: Future Profits) (using "reasonable certainty" in numerous ways).

¶ 45. Finally, some comments to existing instructions contain references to the phrase "reasonable certainty" in the context of discussing the applicable burden of proof. E.g., Wis JI — Civil 200 (Burden of Proof: Ordinary); 1006 (Gross Negligence: Defined) (alternative instruction); 2100 (False Imprisonment: Definition); 4000 (Agency: Definition) (recommending burden of proof instruction in certain circumstances).

¶46. If we were to rewrite instruction 200, as Nommensen suggests, by substituting the word "probability" for the word "certainty," we would in effect be deciding to substitute that word in many other instructions. This would require an impact analysis that we are ill equipped to undertake. It would be far better for an expert committee of circuit judges and scholars, working without an artificial deadline, to decide how to accomplish such wide-sweeping changes, if there were a consensus that such changes were warranted.

¶ 47. It is important to keep in mind that Nom-mensen's proposal to substitute the word "probability" for the word "certainty" in Wis JI — Civil 200 has been rejected by the Wisconsin Civil Jury Instructions Committee in the past. Wis JI — Civil 200 cmt. ("Suggestions have.. .been made to the Committee and to trial judges during instruction conferences that the certainty element ('to a reasonable certainty') should be replaced with the term 'reasonable probability.'. . .The Committee believes that the term 'reasonable certainty' has been firmly established in our case law and accurately reflects the degree of certitude jurors must reach in answering verdict questions."). While the decisions of the civil instructions committee are not binding upon this court, we generally find the committee's work insightful and persuasive.

¶ 48. Another of Nommensen's proposals — to eliminate discussion of the degree of certitude altogether — runs contrary to well-established case law. Even if we were to accept this proposal, the work of rewriting the instructions would be a daunting task. The degree of certitude appears in so many instructions, and is written in so many different ways, that to follow Nommensen's suggestion would require that we effectuate deep and fundamental revisions in many instructions, as well as minor deletions in others. This is not our institutional role. In addition, this idea of Nommensen's does not square with this state's longstanding two-element approach to the burden of proof. The Wisconsin Civil Jury Instructions Committee also has expressly rejected this proposal. Accordingly, we decline to rewrite instruction 200 in the manner proposed by Nommensen.

NOMMENSEN'S BURDEN ON APPEAL

¶ 49. Nommensen fails to establish that the giving of instruction 200 constituted an erroneous exercise of discretion by the circuit court in his case. He has not shown that his "substantial rights" were affected by the instruction, which is the burden he is required to meet on appeal.

¶ 50. A circuit court has broad discretion when instructing a jury. White v. Leeder, 149 Wis. 2d 948, 954, 440 N.W.2d 557 (1989). As a general matter, if we determine "that the overall meaning communicated by the instruction as a whole was a correct statement of the law, and the instruction comported with the facts of the case at hand, no grounds for reversal exists." Id. at 954-55.

¶ 51. Even if we determine that a circuit court has committed an error in administering a jury instruction, we must assess whether the miscue constitutes reversible error, that is, whether the "substantial rights" of a litigant have been affected.

¶ 52. For an error "to affect the substantial rights" of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727; Koffman v. Leichtfuss, 2001 WI 111, 246 Wis. 2d 31, 630 N.W.2d 201; Martindale v. Ripp, 2001 WI 113, 246 Wis. 2d 67, 629 N.W.2d 698; State v. Dyess, 124 Wis. 2d 525, 543, 547, 370 N.W.2d 222 (1985). A reasonable possibility of a different outcome is a possibility sufficient to "undermine confidence in the outcome." Dyess, 124 Wis. 2d at 544-45 (quotation omitted).

¶ 53. Nommensen did not persuade this court how the circuit court committed error in administering a jury instruction with language that has been in place in this state for more than a century. The circuit court followed an instruction that this court has sanctioned in the past, Victorson, 70 Wis. 2d at 357, and it declined to modify the instruction in a way previously rejected by the Wisconsin Civil Jury Instructions Committee. Wis JI — Civil 200 cmt. Under the circumstances presented, we cannot find that the circuit court erroneously exercised its discretion.

¶ 54. Assuming arguendo that the circuit court did commit error in giving in Wis JI — Civil 200, Nom-mensen has not shown that his substantial rights were affected. He has not shown there is a reasonable possibility that the result of the trial would have been different. He makes minimal argument about the facts and he does not present a cogent analysis of how instruction 200 affected the outcome of his case. Even if Nommensen had argued that his substantial rights were affected, the jury's finding of negligence upon the part of St. Mary's undercuts his contention.

CONCLUSION

¶ 55. We conclude that Nommensen has not made a case for granting him a new trial because he did not establish that the circuit court administered an erroneous jury instruction or that if the instruction were error in his case, his substantial rights were affected. We have carefully considered petitioner's argument that there is potential for juror confusion in Wis JI — Civil 200, with respect to the elements of degree of certitude and quantum of evidence. With this in mind, we respectfully request the Wisconsin Civil Jury Instructions Committee to revisit the instruction for a thorough review. We do not necessarily agree with Judge Brown that "the instruction fails miserably." However, we appreciate the spirit in which his message was delivered. We recognize that jury instructions must be designed for the lay people on a jury. We support Alan Gesler's statement that the purpose of all jury instructions is not only to "accurately state the law, but to clearly state the law." Gesler, supra, at 12.

¶ 56. Changing "reasonable certainty" to "reasonable probability" in the instruction is not the proper tonic for potential juror confusion and would be inconsistent with precedent. However, we concur with Nommensen that instruction 200 as written is deserving of a thorough review. Such a review should consider all legitimate reformulations of the current instruction, so long as the instruction maintains the two-element approach to the burden of proof.

¶ 57. In examining instruction 200, the committee should make every effort to remedy one of the most troubling aspects of the instruction: the juxtaposition of the two elements of the burden of proof. The ordinary juror could be misled into thinking that the burden of proof is to a "reasonable certainty." Yet, immediately following that phrase, another seemingly contradictory aspect of the burden of proof is set forth: "by the greater weight of the credible evidence." This juxtaposition has the potential to confuse the ordinary juror. The committee might well revise this instruction in a way that separates the two elements of the burden of proof and that allows an ordinary juror to discern the meaning and interrelation of the two elements.

¶ 58. The goal of any revision or rewrite should be to inform jurors of both elements of the burden of proof in the simplest and most understandable manner, while explaining each concept distinctly and relating the role of each element in deciding verdict questions.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 59. (concurring). I join the majority opinion. I wrote a concurrence on the issue of harmless error in In re the Termination of Parental Rights to Jayton S.: Evelyn C.R. v. Tykila S., 2001 WI 110, ¶¶ 37-42, 246 Wis. 2d 1, 629 N.W.2d 768 (Abrahamson, C.J., concurring). My views on harmless error expressed in that concurrence apply to the present case as well. Rather than repeat the concurrence verbatim in the present case, I refer the reader to the Evelyn C.R. case.

N. PATRICK CROOKS, J.

¶ 60. (concurring). I concur in the majority's decision to affirm the court of appeals because, as the majority concludes, Nommen-sen failed to establish that the circuit court erroneously exercised its discretion in giving Wis JI — Civil 200. Majority op. at ¶49. I disagree, however, with the majority's harmless error analysis.

¶ 61. First, I take issue with the majority's standard for harmless error. That standard, which is repeated in four other decisions from this court, is whether there is "a reasonable possibility that the error contributed to the outcome," and that a "reasonable possibility" is one "sufficient to 'undermine confidence in the outcome.'" Id. at ¶ 52 (quoting State v. Dyess, 124 Wis. 2d 525, 544-45, 370 N.W.2d 222 (1985)). Since the standard for harmless error is the same for civil, as well as criminal, cases (Town of Geneva v. Tills, 129 Wis. 2d 167, 184-85, 384 N.W.2d 701 (1986)), it is imperative that the standard be accurately conveyed.

¶ 62. For at least the past 35 years, this court has wrestled with formulating a standard for harmless error. See, e.g., Pulaski v. State, 24 Wis. 2d 450, 456-57, 129 N.W.2d 204 (1964); State v. Spring, 48 Wis. 2d 333, 339-40, 179 N.W.2d 841 (1970); Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973); State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987). In an attempt to formulate a single, uniform test for harmless error, Dyess "conclude[d] that the test of prejudice as formulated in Strickland subsumes the various statements of the harmless error test that this court has used over the years." Dyess, 124 Wis. 2d at 545. The Strickland case referred to is Strickland v. Washington, 466 U.S. 668, 693 (1984), and the test is whether "there is a reasonable probability" that "but for" the error, "the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694 (emphasis added). Dyess obviously adopted that test, but incorrectly assumed that there was no real difference between using "reasonable possibility" instead of "reasonable probability." 124 Wis. 2d at 544. Granted, Dyess applied its test by stating that "[i]n the present case, the probability to be weighed is whether the defendant would have been acquitted." Id. at 546 (emphasis added). However, as evident in the majority's opinion here today, Wisconsin courts have frequently used the term "reasonable possibility," and have not indicated that, in the context of a harmless error standard, possibility means probability.

¶ 63. There can be no doubt that there is a significant difference between what is reasonably probable and what is reasonably possible. "A possibility test is the next thing to automatic reversal." Wold v. State, 57 Wis. 2d 344, 356-57, 204 N.W.2d 482 (1973). While I agree that the focus should be "on whether the error ’undermine[s] confidence in the outcome,'" (Dyess, 124 Wis. 2d at 545 (quoting Strickland, 466 U.S. at 694)), if that error need only possibly undermine the confidence in the outcome, rather than probably, appellate courts, and circuit courts considering motions after verdict and post-convictions motions, will find themselves invading the purview of the jury. A cornerstone of the common law is deference to the jury, which is diluted by determining whether the alleged error possibly, and only possibly, may have affected the jury's decision.

¶ 64. I do not take issue with the term "reasonable possibility," so long as it is made clear that this term means reasonable probability, and probability is the standard to be applied. Accordingly, I offer the following test for harmless error, which makes clear that Dyess' use of the term "reasonable possibility” is intended to require "reasonable probability":

Wisconsin Stat. § 805.18(2) provides that an error requires reversal only where it has "affected the substantial rights of the party" claiming error. We have long recognized that the focus of a court's analysis under this statute is whether, in light of the applicable burden of proof, the error is significant enough to "undermine confidence in the outcome" of the trial. Dyess, 124 Wis. 2d at 544—45. An error is significant enough to undermine confidence in the outcome if there is a reasonable probability of a different outcome without the error. Dyess made it clear that "probability" is substantially the same as "possibility" under Wisconsin law. Id. at 544.

¶ 65. The majority's opinion presents an apt example of how using a "reasonable possibility" test, as opposed to "reasonable probability" test, is problematic. The majority concludes that there is "potential" for jury confusion in using Wis JI — Civil 200, and, on that basis, "urge[s]" the Wisconsin Civil Jury Instructions Committee to review the instruction. Majority op. at ¶¶ 5, 55. If there is a "potential" that the jury would be confused, then it is "possible" that the jury was confused. See Grant, 139 Wis. 2d at 78 (Day, J., concurring) (one definition of possible is "having an indicated potential"). In turn, if there is a possibility that the jury was confused or mislead, then there was prejudicial error. Yet, this is not what the majority concluded.

¶ 66. Moreover, this analysis runs counter to other decisions from this court, as noted by the majority (at ¶ 52 n.6), which hold that "instructions are to be judged as a whole and prejudicial error will not be found unless the instructions 'would probably, not possibly, mislead the jury.'" Victorson v. Milwaukee & Suburban Transp. Corp., 70 Wis. 2d 336, 357, 234 N.W.2d 332 (1975) (quoting Savina v. Wisconsin Gas Co., 36 Wis. 2d 694, 154 N.W.2d 237 (1967)) (emphasis added); see also Brown v. Dibbell, 227 Wis. 2d 28, 595 N.W.2d 358 (1999) ("where an instruction is erroneous and tends to mislead or probably misleads the jury, such misstatement of the law constitutes prejudicial error"). The majority opinion characterizes Victorson's standard as one of a "variety of ways" this court has "stated the standard for harmless error in jury instruction cases." Majority op. at ¶ 52 n.6. Yet, Victorson and Savina plainly foreclose the consideration of whether the error "possibly" misled the jury. Indeed, the effect of the majority's adoption of a "reasonable possibility" harmless error standard, without acknowledging that "reasonable possibility" means "reasonable probability," is to overrule Savina, Victor-son, and Brown v. Dibbell sub silentio.

¶ 67. That Wisconsin courts have often used "reasonable possibility" rather than "reasonable probability" should not dissuade the court from correcting such missteps today. See, e.g., State v. Sullivan 216 Wis. 2d 768, 792, 576 N.W.2d 30 (1998); State v. Alexander, 214 Wis. 2d 628, 653, 571 N.W.2d 662 (1997). There is no time like the present — dum fervet opus — when the court has before it five cases wherein it discusses the harmless error standard, to clarify Dyess.

¶ 68. For the reasons stated herein, I respectfully concur.

¶ 69. I am authorized to state that Justice JON P. WILCOX joins this opinion.

       The circuit court used the version of Wis JI — Civil 200 that was in effect at the time of Nommensen's trial in 1999, the 1991 version. The instruction has changed slightly since then, with a revision in the year 2000. The first sentence of the instruction now reads: "The burden of proof on questions_ rests upon the party contending that the answer to a question should be 'yes.'" The recent change does not affect this case.

       Wisconsin JI — Civil 200 has undergone a variety of minor changes since its inception. According to the instruction's comment, it was first approved in 1972 and underwent changes in 1989, 1991, and 2000, Wis JI — Civil 200 cmt, though the Wisconsin State Law Library also holds a Wis JI — Civil 200 published in 1960. The 1960 instruction differs significantly from the post — 1972 instructions, but it too contains the phrase "to a reasonable certainty, by the greater weight of the credible evidence."
      The 1989 revision added the current third paragraph of the instruction. The 1991 revision added the word "your" to the last sentence of the second paragraph. Finally, the 2000 revision changed the format of the first sentence of the instruction. None of these revisions is particularly pertinent to this case, but they underscore the civil instruction committee's attention to detail.

      Gesler pointed out that in 1918 this court said that the phrase "reasonable certainty" "is not essential" in a burden of proof instruction. Alan E. Gesler, The Burden of Proof: How Certain is Reasonable?, 14 The Verdict 11, 12 (1991) (citing Sullivan v. Minneapolis, St. Paul & Sault Sainte Marie Ry. Co., 167 Wis. 518, 527, 167 N.W. 311 (1918)).

       In addition, many instructions that relate to the middle burden of proof read: "to a reasonable certainty by [or "from"] evidence that [or "which"] is clear, satisfactory, and convincing." Wis JI — Civil 205 (Burden of Proof: Middle); 2004 (Assault); 2005 (Battery (Physical Harm)); 2151 (Federal Civil Rights Actions: § 1983 Actions); 2500 (Defamation); 2511 (Defamation: Public Figure Versus Media Defendant or Private Figure with Constitutional Privilege (Actual Malice)); 2520 (Defamation: Punitive Damages); 2760 (Bad Faith by Insurance Company (Excess Verdict Case)) (also contains an instruction on the lower burden); 2780 (Intentional Interference with Contractual Relationship) (also contains an instruction on the lower burden); 2800 (Conspiracy: Defined); 2802 (Conspiracy: Proof of Membership); 2804 (Conspiracy: Indirect Proof); 2810 (Conspiracy: Overt Acts); 3074 (Estoppel) (withdrawn instruction; language contained in note for trial judges); 7060 (Protective Placement); 7070 (Commitment of an Alcoholic). Some instructions state the middle burden in a different but substantially similar manner, though also employing the phrase "reasonable certainty." Wis JI — Civil 2155 (Federal Civil Rights: Excessive Force in Arrest (In Maintaining Jail Security)); 7050 (Mentally Ill).
      Changing or eliminating the phrase "reasonable certainty" for cases involving the ordinary burden of proof (greater weight of the credible evidence) might also require changing the phrase in cases involving the "middle" burden of proof ("clear, satisfactory, and convincing" evidence). Wis JI — Civil 205. This concern is outside the scope of this case.

       The comment to Wis JI — Civil 200 provides:
      Some have suggested, pointing to decisions predating 1920, that the dual component civil burdens can be abbreviated by simply dropping the mental element. See Sullivan v. Minneapolis, St Paul & S.S.M.R. Co., 167 Wis. 518, 167 N.W. 311 (1918). The Committee disagrees with such proposals and follows the rationale expressed by the Wisconsin Supreme Court in Kuehn v. Kuehn, supra, in which Chief Justice Hallows said:
      The statement of the complete rule of the burden of proof contains both the element of reasonable certainty and some degree of preponderance of the evidence. It is possible the contestant having the burden of proof may have the preponderance of the evidence fair, clear, or otherwise in his favor and still fall short of convincing the jury to a reasonable certainty of the existence of the facts for which he is contending. 11 Wis. 2d at 28.

       In previous cases, we have stated the standard for harmless error in jury instruction cases in a variety of ways. Nowatske v. Osterloh, 198 Wis. 2d 419, 429, 543 N.W.2d 265 (1996) ("[W]hen the circuit court has given an erroneous instruction or has erroneously refused to give an instruction, a new trial is not warranted unless the error is prejudicial. '[A]n error relating to the giving or refusing to give an instruction is not prejudicial if it appears that the result would not be different had the error not occurred."); Victorson v. Milwaukee & Suburban Transp. Corp., 70 Wis. 2d 336, 357, 234 N.W.2d 332 (1975) ("[Ijnstructions are to be judged as a whole and prejudicial error will not be found unless the instructions 'would probably, not possibly, mislead the jury.'").
      Nevertheless, we find that the "reasonable possibility" test applied in the recent cases of this court — Green, Koffman, Mar-tindale — correctly describes the proper test to measure whether the substantial rights of Nommensen have been affected.

       As the petitioner, Nommensen filed the first brief in this court. Even after the respondents argued in their response brief to this court that Nommensen had failed to discuss the substantial rights standard, Nommensen did not address this issue. Instead, he declined to file a reply brief.

        See also Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727; Koffman v. Leichtfuss, 2001 WI 111, 246 Wis. 2d 31, 630 N.W.2d 201; Martindale v. Ripp, 2001 WI 113, 246 Wis. 2d 67, 629 N.W.2d 698; and Evelyn C.R. v. Tykila S., 2001 WI 110,246 Wis. 2d 1, 629 N.W.2d 768. (I have written dissents or concurrences in these cases.) But see State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223 (Strickland's probability sufficient to undermine the confidence in the outcome test used to determine ineffective assistance of counsel claim).

        Dyess' single test for harmless error standard has not been without controversy. State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985). In addition to the majority opinion's discussion of Dyess' harmless error standard, authored by Justice Day, in State v. Grant, 139 Wis. 2d 45, 406 N.W.2d 744 (1987), Chief Justice Heffernan, Justice Day, Justice Abrahamson, and Justice Callow separately concurred on the Dyess issue. The controversy has continued. See State v. Dodson, 219 Wis. 2d 65, 92-98, 580 N.W.2d 181 (1998) (Crooks, J., concurring, joined by Justice Steinmetz and Justice Wilcox).

       According to my research, on few occasions since Dyess has this court, in a majority opinion, noted that reasonable possibility means reasonable probability. See State v. Armstrong, 223 Wis. 2d 331, 372 n.40, 588 N.W.2d 606 (1999); see

        also State v. Huntington, 216 Wis. 2d 671, 695-96, 575 N.W.2d 268 (1998). However, several court of appeals opinions have applied the Dyess harmless error test using the correct "reasonable probability" standard. See, e.g., State v. A.H., 211 Wis. 2d 561, 569, 566 N.W.2d 858 (Ct. App. 1997); State v. Joseph P., 200 Wis. 2d 227, 237, 546 N.W.2d 494 (Ct. App. 1996).

         Wold's "reasonable probability" test for harmless error was replaced by Dyess' "reasonable possibility" test.

       "While the action is fresh; in the heat of action." Black's Law Dictionary 518 (7th ed. 1999).


author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Shomari L. Robinson, Defendant-Appellant.

    Court of Appeals

      No. 00-1170-CR.

      Submitted on briefs January 5, 2001.

    Decided April 5, 2001.

    2001 WI App 127
    (Also reported in 629 N.W.2d 810.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph L. Sommers, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Shunette T. Campbell, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, Roggensack and Deininger, JJ.

      Petition to review denied.

   DEININGER, J.

¶ 1. Shomari Robinson appeals a judgment convicting him of second-degree sexual assault of a child, and an order denying postcon-viction relief. He claims that his plea agreement with the State was breached when he was prevented from presenting certain evidence at his sentencing hearing, and, alternatively, that the trial court erred in not allowing the evidence. We reject both arguments and affirm.

BACKGROUND

¶ 2. Robinson originally faced three charges: one count of second-degree sexual assault alleging intercourse with a person under the age of sixteen years; a second count of sexual assault, based on the same incident, alleging intercourse "by use or threat of force or violence"; and battery to a child, also arising from the same incident. Under a plea agreement with the State, he pled no contest to the first count and the other two charges were dismissed. Because the substance of the plea agreement is at the heart of this appeal, we set out below what Robinson's trial counsel and the prosecutor said on the record regarding their agreement:

[DEFENSE COUNSEL]: [T]he state and I have come to an agreement on this case and what that — what that agreement is — for the record is that Mr. Robinson will be pleading guilty or — he will be pleading no contest to count one in the criminal complaint. Everything else in the complaint including the repeater allegations will be dismissed. And we would like to have this matter set over for sentencing at which point we will be arguing sentence on this case.
[PROSECUTOR]: Your Honor, that's essentially correct. It's my understanding he'll plead no contest to count one of the information as opposed to the complaint. Counts two and three are the only other counts that relate to Mr. Robinson. Count two covers the same conduct that count one covers, that is, the sexual assault and in exchange for the plea to count one the state will agree to dismiss count two. We will also dismiss count three.
It is our intention by taking a plea — It's both the state and the defense's intention that by having a plea to second degree sexual assault of a child, that both sides are free to argue at sentencing for whatever they feel is appropriate and the nature of the sexual assault will be not really litigated at that time but there will be evidence that will be presented at that time that will go to the nature of the sexual assault, whether it was purely an age case or whether there was force and violence involved.

(Emphasis added.)

¶ 3. The fifteen-year-old victim testified at the preliminary hearing that Robinson assaulted her in the rear seat of a car in which Robinson had driven her and several others to a school playground. After the others left the car, the victim testified that Robinson got into the back seat with her and asked her to have sex with him. After she refused, according to the victim, Robinson pinned her down, removed her clothing and had intercourse with her. She also said that, while struggling with Robinson, she put her foot through a car window, and that he slapped her face.

¶ 4. At the sentencing hearing Robinson's counsel requested that the court view a car alleged to be the one in which the assault occurred. The court declined, saying:

I decline to look at the car. The violation of the discovery statute [as argued by the State] is part of the problem. But this is a sentencing. Mr. Robinson has pled. He's here for sentencing. It is not a trial. We're not going to go take a view of a car, especially when no one has been provided notice of this request. And the sentencing provisions in the statutes are quite specific about what can be allowed at sentencing, and I think for the very reason that courts are not to relitigate cases at sentencing. And what is allowed at a sentencing is [a] statement by the victim, that is an absolute right, and other • statements by people as the court sees fit.
I see nothing that would allow me to go out and take a look at a car that may or may not have been involved in a sexual assault of a child. I decline to do it....

Defense counsel then stated that he "had hoped to call witnesses" at the sentencing regarding the car and the condition of the window. The court responded that "Mr. Robinson can make a statement about what he feels I need to know, and it is his absolute right to tell me what he thinks I need to know before I sentence him, and you have a limited right to present statements in the court's discretion."

¶ 5. The discussion continued. Counsel inquired if he could "make offers of proof on what I wanted to bring in," to which the court replied:

You can argue. You can tell me in argument what you think the facts are. You can argue from the presentence. That's why a presentence is prepared. That's why we go through the process of saying what's in the presentence that isn't right. Tell me, so that Mr. Robinson can be sentenced on correct information. But it is long, long past the time to retry the case.

The court then inquired of counsel whether he had "anyone here who was at the scene who could testify about the events that night?" Counsel acknowledged that he did not, that "[t]he major portion of the witnesses that I have have to do with this car." The court then informed counsel that he would not be allowed to call witnesses "about the condition of the car," and counsel stated that he would not call any witnesses.

¶ 6. The prosecutor argued, based on the victim's preliminary hearing testimony, that Robinson had committed a forcible sexual assault, for which he had shown little remorse, given his claim of consensual sexual activity. She also pointed to witness statements to the effect that the victim claimed to have been raped and was upset, crying and throwing up immediately after the encounter with Robinson. Pointing to Robinson's prior record and failure on probation, the State requested a "six to eight year" prison sentence.

¶ 7. Defense counsel took issue with the prosecutor's version of the offense and presented Robinson's version of what occurred — that the victim had consented to intercourse. He pointed to discrepancies between the victim's story and the statements of other witnesses who were at the scene of the incident and detailed what he deemed the victim's motivation to lie about the character of the incident.

¶ 8. The court, responding to the defense argument, inquired whether Robinson wanted to withdraw his plea or to have the sentencing set over. Counsel replied that he "would like to discuss that with my client.. . because of your unwillingness to allow me to have witnesses in terms of what car was actually used that night," but there is no indication in the sentencing transcript that counsel and Robinson actually conferred on the matter. Instead, counsel proceeded with his argument, requesting that Robinson receive probation and jail time for the statutory assault in lieu of a prison sentence.

¶ 9. Robinson then personally addressed the court. He admitted that he "did attempt to have sex with" the victim, but did not rape her. He also acknowledged that he had originally lied about what car he had been driving that night in order to protect his friend who owned it. Robinson claimed that the victim's version of the incident was a lie, and that no window had been kicked out of the car. He claimed that she attempted to perform oral sex on him but, at his request, consented to intercourse instead. According to Robinson, the victim removed her own clothing, and he attempted intercourse "two or three times, and it wasn't working because she was too small. I stopped... . That was basically it."

¶ 10. Following the arguments of counsel and Robinson's allocution, the court stated it had extensively reviewed the record, "struggling to know everything I can about you and about this offense and whose version I ought to believe." It rejected Robinson's version of the offense as "simply inconsistent with the contemporaneous statements of the other people who were at the scene." The court then reviewed the presentence investigation information regarding Robinson's background and character, past offenses, probation and revocation, and his need for treatment. The court sentenced Robinson to five years in prison for the sexual assault.

¶ 11. Robinson moved for postconviction relief, alleging "1) Breach of plea agreement/ineffective assistance of counsel; and 2) Sentencing based on inaccurate information due to an erroneous use of discretion by the trial court." The trial court found no breach of Robinson's plea agreement with the State and thus no deficient performance on trial counsel's part for failing to allege a breach prior to sentencing. The court also noted that, even if it had received evidence regarding whether a car window had been broken, it likely would have come to the same conclusion regarding Robinson's sentence. In lieu of an evidentiary proceeding, Robinson's postconviction counsel was permitted to make an offer of proof regarding the matters he would have presented through testimony at the hearing. The offer included the anticipated testimony of several witnesses regarding the car Robinson was driving on the night of the offense and its lack of a broken window thereafter.

¶ 12. The court entered an order denying Robinson's postconviction motion, and he appeals that order as well as his conviction.

ANALYSIS

¶ 13. Robinson makes the same claims on appeal as he raised in his postconviction motion. It is undisputed that Robinson first alleged that the plea agreement was breached in his postconviction motion. An alleged breach of a plea agreement is waived if the issue is not raised before a defendant is sentenced. State v. [Mickey Lee] Smith, 153 Wis. 2d 739, 741, 451 N.W.2d 794 (Ct. App. 1989) (A defendant waives the right to object to an alleged breach of a plea agreement when he or she "fails to object and proceeds to sentencing after the basis for the claim of error is known to the defendant."). Inasmuch as Robinson has combined his allegation of a breach of plea agreement with a claim of ineffective assistance of counsel, however, we begin our inquiry regarding counsel's performance with a consideration of whether a breach occurred. See State v. [Tony M.] Smith, 207 Wis. 2d 258, 264 ¶ 6, 558 N.W.2d 379 (1997). We conclude that one did not.

¶ 14. The trial court specifically concluded that Robinson's plea agreement with the State had not been breached. Our review is in two parts:

If there are disputed questions of fact on appeal, that is, if the question of whether the prosecutor violated the terms of the plea agreement turns on a question of fact, then the court must give deference to the factual findings of the circuit court unless clearly erroneous. See, e.g., State v. Jorgensen, 137 Wis. 2d 163, 169, 404 N.W.2d 66 (Ct. App. 1987) (utilizing this standard on appeal when there was a dispute as to what the parties meant when they agreed that the prosecutor would remain "silent" at sentencing). . . . [I]f there is both a disputed question of fact and a question of whether the facts establish a breach, the court must first review the facts under a clearly erroneous standard of review and then determine as a matter of law under a de novo standard of review whether the prosecutor violated the terms of the plea agreement.

State v. Wills, 193 Wis. 2d 273, 277-78, 533 N.W.2d 165 (1995).

¶ 15. Here, the trial court did not expressly separate its conclusion that the plea agreement had not been breached into a factual determination regarding what the parties had agreed to, and a legal conclusion as to whether what transpired at sentencing conformed to the agreement. We conclude, however, that the court made both determinations. In concluding that the plea agreement had not been breached, the trial court said that it "came into the sentencing knowing full well that the parties had preserved the right to argue whether or not this was a forcible sexual assault or not. I wasn't sure whether the parties were going to be presenting evidence or simply argument." Thus, in the trial court's view, the parties had clearly agreed that the nature of the sexual assault would be argued at sentencing, and further that some evidence might be offered on the issue. The court's remarks show that the court did not view the parties' agreement as calling for a full-blown trial of the details of the offense, however, and the record supports this finding.

¶ 16. In defense counsel's statement of the agreement at the plea hearing, he did not employ the words "evidence" or "testimony" in describing what the parties had agreed regarding the sentencing hearing. Rather, he told the court that "we will be arguing [the] sentence on this case." Unlike defense counsel, the prosecutor did use the word "evidence" in her recitation of the parties' agreement, but her remarks also qualified the term by indicating that any evidentiary aspects of the sentencing hearing would be limited in scope:

It's both the state and the defense's intention that by having a plea to second degree sexual assault of a child, that both sides are free to argue at sentencing for whatever they feel is appropriate and the nature of the sexual assault will be not really litigated at that time but there will be evidence that will be presented at that time that will go to the nature of the sexual assault, whether it was purely an age case or whether there was force and violence involved.

We thus conclude that the trial court did not clearly err in finding that the plea agreement called for argument by the parties, and at most, a very limited presentation of evidence at sentencing regarding the nature of the sexual assault.

¶ 17. Given that the parties' agreement called for the right to argue and to present limited evidence at sentencing regarding the nature of the sexual assault, we conclude, as did the trial court, that the agreement was not breached. Robinson gave his version of what occurred on the night in question, and his counsel argued at length as to why his client's statement was more credible than the victim's preliminary hearing testimony. Although the court specifically declined to view the car proffered at sentencing, it did not deny Robinson the opportunity to present evidence other than that relating to the condition of the proffered car. In fact, the court specifically offered to consider testimony from any persons who were present in the schoolyard at the time of the assault.

¶ 18. In short, we conclude that Robinson got everything he bargained for: the dismissal of two felony counts and the opportunity to persuade the court at sentencing that the assault to which he pled was simply an "age case" rather than a forcible assault. The agreement did not provide that Robinson would be permitted to introduce any and all evidence he wished at sentencing, regardless of its relevance and probative value. Even if Robinson's understanding of what he would be permitted to present at sentencing was broader than the prosecutor's, the parties could not supplant the court's exercise of discretion in setting the permissible bounds of the sentencing hearing, anymore than an agreement for a joint sentencing recommendation may bind a court's discretion in imposing the sentence itself. In the absence of a plea agreement breach, Robinson's counsel's performance was neither deficient nor prejudicial for failing to raise the issue prior to sentencing. See State v. Hanson, 2000 WI App 10, ¶ 31 n.5, 232 Wis. 2d 291, 606 N.W.2d 278, review denied, 234 Wis. 2d 177, 612 N.W.2d 733.

¶ 19. What remains is for us to consider whether the trial court erroneously exercised its discretion by prohibiting Robinson from presenting his "car evidence" at sentencing. As the trial court correctly noted, the only statements which a court must permit at sentencing are those of the defendant and his counsel, the victim and the prosecutor. See Wis. Stat. §972.14 (1999-2000). The receipt or consideration of any other statements or evidence at sentencing is within the court's discretion, and is conditioned upon being "relevant to the sentence." Section 972.14(3)(b). Here, the court concluded that the proffered "car evidence" had little or no probative value regarding the nature of the offense, and it certainly did not bear on any of the other sentencing factors. The trial court acknowledged that evidence relating to what car Robinson was driving and whether its window was broken out on the night in question might have some bearing on the overall credibility of the victim's description of the offense, but concluded that the evidence would have had no impact on the court's sentencing decision. Thus, we conclude that the court committed no evidentiary error in refusing to allow the "car evidence" at Robinson's sentencing.

¶ 20. Robinson, however, also argues that he has a due process right to be sentenced on the basis of accurate information. We do not quarrel with the proposition. The supreme court has recently emphasized this right in State v. Spears, 227 Wis. 2d 495, 596 N.W.2d 375 (1999), which Robinson cites in support of his entitlement to present evidence at sentencing to refute the victim's version of the offense. His reliance on Spears, however is misplaced. The supreme court held in Spears that "where a victim's criminal record supports a defendant's version of a crime, the gravity of which crime is a sentencing factor, it should be admitted as evidence at the defendant's sentencing hearing." Id. at 511 ¶ 30. The specific error committed by the trial court was its "refus[al] to consider" this evidence, id. at 508 ¶ 22, which the supreme court deemed relevant to the circumstances leading to the crime in question. Id. at 499 ¶ 3, 508 ¶ 23.

¶ 21. In this case, however, the trial court did not refuse to consider relevant evidence regarding the nature of the offense Robinson had committed. It simply declined to permit the sentencing hearing to be diverted into litigation of what vehicle the defendant had been driving and whether a window in the car had been broken. Evidence that a car window had not been broken would not have made it any "more probable or less probable" that the sexual assault was consensual as opposed to forcible. See Wis. Stat. § 904.01. We concur with the trial court's assessment that the "car evidence" was not relevant to the issues at sentencing:

I kept my mind open as to whether or not evidence could be presented. And what I was given was a request from [defense counsel] that I should go out and take a look at a car that could be driven from Monona Terrace over to the front of the courthouse so that I could determine as part of the sentencing process whether it was the same car that was used in the sexual assault. I rejected that as simply not pertinent, not relevant to the sentencing because how could I determine from looking at the car whether or not it was the same car?
Then [defense counsel] said well, there will be other people who will testify about whether there was broken glass, whether it had to be repaired, and at that point I think the record bears this out very clearly, I said this is a collateral issue. This is not — whether the window is broken or not isn't going to tell me whether this was a forcible sexual assault. It may tell me something about the credibility of the victim, so [defense counsel], tell me what you would put on as evidence if I were to consider the credibility of the victim. And he did. He went on at great length.

¶ 22. Spears does not stand for the proposition that a defendant may, at sentencing, present any and all evidence he or she wishes to present. We conclude that the trial court did not violate Robinson's right to due process in disallowing the "car evidence" at Robinson's sentencing hearing.

CONCLUSION

¶ 23. For the reasons discussed above, we affirm the appealed judgment and order.

By the Court. — Judgment and order affirmed.

       These witnesses did not testify at the preliminary hearing, and we were unable to locate their statements in the record.

       The court noted the statements of witnesses reporting that the victim was "vomiting and crying afterwards and saying that she was raped." See note 1, above.

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

       The trial court said at the postconviction hearing that "[i]f I had heard that perhaps the window had not been broken ... I believe I would have come to the same conclusion." The court noted that it placed considerable weight at sentencing on the fact that probation had "been tried and it didn't work," and that Robinson needed "something more in the way of treatment, more than probation and jail time would provide."


author: WEDEMEYER, P.J.

text:
    Policemen’s Annuity and Benefit Fund of the City of Milwaukee, and George H. Sprague, both plaintiffs individually and as representative of a class consisting of City of Milwaukee Police Officers hired prior to 1948 who participated as members of the Policemen’s Annuity and Benefit Fund System, and Ruth Ackmann, Gilbert C. Armbruster, Phyllis C. Bailey, Robert Baker, John W. Balcerak, Vladimir V. Barak, Elizabeth Barnes, Hildegarde Barg, Ethel G. Bartelt, Theresa Bartl, Alphonse P. Bauer, Dolores Baumann, Samuel Bay, Eugene W. Bebo, Esther B. Beck, Raymond J. Bednarek, Harold F. Behling, Virginia Behrendt, Violet Behrens, Franz Belot, Allen H. Bence, Howard C. Bentz, Ruth L. Berg, Gustav C. Bergemann, Leona Bett, Leona Bevsek, Agnes M. Beyer, Elsie V. Bilty, Richard W. Bohmer, Margaret M. Booton, Leocadia Borkowicz, Adele Brasile, Mildred Breidenbach, Harold A. Breier, Harold Breitlow, Elizabeth A. Brelsford, Hazel Brown, Ralph J. Brown, Mildred A. Bruss, Florence A. Budich, Evelyn Buege, Andrew Busalacchi, Edward F. Domask, Ann Doro, Mariann Dorow, John Dotski, Betty J. Drake, Anna J. Dunham, Harry E. Dunn, Jr., Mardella B. Eckhardt, Raymond A. Ehmke, Margaret M. Eichman, Vera M. Eichstaedt, Edmund H. Eigenfeld, Virginia Einem, Milton A. Engbring, Leone Erfert, William Ericsson, Chester R. Esch, Lucille Evans, Clara S. Evenson, Eileen Evica, Ruth Fabich, Isabelle C. Faubel, Dolores L. Feilen, Mary Ann Feilen, Florence T. Filipiak, Irene M. Fischer, Julia M. Fisher, Sylvia Freismuth, Florence Freund, Dorothy Frischmann, Glyn Fuglesang, Ruth Gaertner, John O. Galler, Ethel Galligan, Hermine Garms, Florence A. Gelhar, Marianne Gilbert, Florence Girard, Elsie Gleisner, Virginia J. Glembin, Marvin R. Godfried, Frances G. Goehle, Norma Goehlen, Tobias J. Golembiewski, Sylvia Gorniak, John W. Grantz, Henrietta Granum, Rosemary Greinke, Theresa F. Gust, Estelle Guttowski, Mary Guzinski, Laverne J. Guzman, Stanley Gwiazdowski, Louis J. Habel, Dorothy L. Haensgen, Genevieve Hanley, Dora I. Harris, Ewald J. Hartmann, Marie Heibler, Hulda E. Heidelberg, Rose M. Hein, Walter D. Heller, Esther Helm, Mary Helz, Edmund M. Hemmen, Edwin F. Henke, Emilie C. Henrich, Rachel Hensler, Harold J. Hermann, Frances M. Herold, Rachelle Heyse, Herbert L. Hinstorff, Stella Hoffmann, Gertrude A. Horsch, Winifred Hubbard, Donald W. Huffer, Lorraine Huml, Edward W. Ihlenfeld, Gregory F. Isermann, Charles E. Jaeck, Ann Jaeger, Ronald Jaeger, Leroy A. Jahnke, Alvina Jakubiak, Robert H. Jamrozy, John A. Jarvella, Bruno J. Jedrzejewski, Lucille M. Jefferies, Chester B. Jelinski, Howard L. Jennrich, William S. Jens, Earl M. Jenson, Helen C. Jeske, Dolores M. Johnson, Edgar R. Jones, Frances H. Julien, Edmund L. Jurkowski, Edwin W. Justen, Leone Kahne, Norma Karpinski, Chester R. Kasinski, Ervin F. Kasprzak, Marion V. Kassow, Henry R. Kasza, Eva Katsekes, John Kenzoria, Bertha J. Kieckhefer, Evelyn A. Kind, Bernice King, Theresa Kirsch, Ruth D. Klann, Casimir Klapczynski, Wilbur H. Klasen, Frank Klein, William J. Klippel, Otto Knapke, Dorothy E. Knueppel, Doris Knuth, Cecelia F. Koch, Gladys Koenig, Leo Koenig, Robert W. Koepp, Sara M. Koepp, Lyle W. Kohn, Doris I. Komperda, Edward Kondracki, Estelle Konz, Leo Kopecki, Mary J. Kopsar, Stanley A. Korbar, Mercedes Kottke, Arthur H. Kranich, Vernell Krasnan, Rudolph E. Krause, Arthur G. Krebs, Louise Kremsreiter, Helen M. Kresnicka, Dorothy M. Kropkat, Norman L. Kruse, Edward M. Kubiak, Henry J. Kubiak, Gladys H. Kuehnel, Ruth W. Kuhn, Harry J. Kuhr, Ann Kurek, Richard Kurowski, Angeline C. Kuszewski, Peter J. Kuzniewski, Stephen Kwasniewski, Mary T. Kwiatkowski, Phillip L. LaPorte, Lucille G. Laabs, Ervin C. Landowski, Pearl Lange, Gladys Lauby, Evalyn Lavann, Florence O. Lavin, Walter Lazowski, Fritz Lehto, Hazel Lemke, Mary Lepak, Ruth E. Lewin, Dorothy Liebscher, Hildagard Liederbach, Ralph E. Lietz, Irma Lindemann, Arlene I. Lund, Luella Lund, Ethel C. Maass, Alois Machnik, Stephen C. Magenheim, Harriet M. Mahlberg, William J. Mann, Clarence Mantei, Evelyn D. Mantz, Ferdinand J. Meyer, Theron A. Meyer, Beatrice Michalzik, Joseph A. Michuda, Emil F. Milo, Eleanore E. Miotke, Joseph J. Miszewski, Theodore B. Mizak, Gordon Moll, Alexia M. Morawetz, Gloria H. Morrell, Ben Morrow, Bernice Mozach, George Muehlbauer, Lauretta Muenchow, Gladys Multhauf, Olive Murray, Edith Nagy, Joyce D. Nauertz, Frank Nawrocki, Bessie Neff, Dorothy Nelson, Eleanore Nennig, George A. Nielsen, Richard Niemann, Dolores Nimmer, Estelle M. Obst, Robert J. O’Connor, Ruth E. Ohde, Allen W. Oldenburg, Florence M. Olson, Irene Opolak, Regina J. Oppmann, Margaret Orlick, Martha Ostermeyer, Joseph Pagliano, Anthony J. Pakulski, Lawrence J. Papke, John Papp, Genevieve Pares, Jeanette E. Petermann, Marie Petersdorff, Caroline Pfeil, Tony H. Pike, Grace A. Pittenger, Marina Plant, Clara L. Plate, Selma Plinska, John Podlesnik, Josephine Pogorelc, Richard T. Polsen, Cecelia L. Popper, Anthony Primozich, Evelyn Quandt, Howard E. Radtke, Lillie E. Raiter, Greta Rasmussen, Raymond P. Raths, Myron R. Ratkowski, Lambert F. Rehorst, Harold J. Reinelt, Minnie Cox Reiter, Mary H. Reitz, Howard A. Ritzman, Kenneth F. Roberts, Robert L. Roepke, Peter Rokich, Dorothy M. Roubik, Mary Rowe, Mary S. Ruehle, Bernice Rutkowski, Helen G. Rybka, Gladys C. Salapa, William G. Schendel, Betty Fay Schiefelbein, Dorothy F. Schmid, Helmuth G. Schmidt, Jack E. Schmitt, Freda Schneider, Gertrude M. Schneider, Irene Schoknecht, Clara M. Schramm, Earl W. Schroeder, Lillian Schultz, Harley Schwertfeger, Alma Seelow, Howard R. Senn, Annette E. Shaffer, Florence Sigg, Richard F. Sinski, Esther Slottke, Raymond L. Sokol, Peter Sokop, Harold Sommerfield, Theodore R. Sonju, Mary Sorgi, Anice M. Spees, Zanana Spencer, Katie Spende, George H. Sprague, Jerome J. Springer, Stanley St. Onge, Mary E. Stark, Marion W. Stephen, Harriet Stolz, Esther D. Stout, Ethel L. Strachota, Mary A. Stroede, Mary A. Strzyzewski, Karl R. Stuhmer, Isabelle Surges, Michael Sworske, Jack C. Sylvester, Florence Szczepanski, Marie Teevan, Elsie Tellefson, Mary A. Tesch, Clara Tesmer, Gertrude Tieffenbach, Earl H. Tietyen, Dorothy H. Tietyn, Evelyn J. Todryk, Margaret Torcivia, Leonard Trinastic, Helen Ulatowski, Veronica Ullenberg, Roy V. Ullius, Regina R. Urbanek, Dorcas E. Vlcansky, Grace Voeks, Andrew H. Voss, Ben J. Wacker, Charles O. Waedekin, Jeanette E. Wahlen, John F. Walenta, Eleanor Walters, Clara Waterhouse, Ruth Weber, Gerda M. Weidner, Frank Weis, Maude W. Wellauer, June V. Wheeler, Agnes White, Louis Wiesmueller, Antola Wilburn, Kenneth A. Wille, Melvin L. Wingert, Mabel E. Winkelmann, Janet Winter, Edna M. Wissing, Richard Wissmueller, Antoinette Witt, Josephine Wittig, Ralph W. Wobszal, Frances J. Wolf, Anne Wolke, August Yanke, Estelle Zakrzewski, Norman Zastrow, Harold F. Zemlicka, Ruth M. Zenda, Evelyn Zepecki, Alice Ziemann and Ruth L. Zimdars, Plaintiffs-Appellants, v. City of Milwaukee, Defendant-Respondent.

    Court of Appeals

      No. 99-0965.

      Oral argument February 14, 2001.

    Decided April 17, 2001.

    2001 WI App 144
    (Also reported in 630 N.W.2d 236.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of John F. Fuchs and Marcia A. Snow of Fuchs Snow & DeStefanis, S.C., Milwaukee. There was oral argument by John F. Fuchs.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Matthew W. O'Neill and Lawrence J. Glusman of Friebert, Finerty & St. John, S.C., Milwaukee. There was oral argument by Matthew W. O'Neill.

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

      Petition to review dismissed.

   WEDEMEYER, P.J.

¶1. The Policemen's Annuity and Benefit Fund of the City of Milwaukee ("PABF") and George H. Sprague, et. al, appeal from a summary judgment dismissing a declaratory judgment action against the City of Milwaukee. PABF claims the trial court erroneously ruled that: (1) no express or statutory trust was created to require the City to make "in lieu" widow's annuity and other contributions from 1969 to 1989; (2) the six-year statute of limitations in Wis. Stat. § 893.43 (1999 — 2000) bars PABF's claim; and (3) the City is not estopped from raising a statute of limitations defense. PABF further posits two bases for relief not addressed by the trial court: (1) equity requires the imposition of a constructive trust as a result of the City's failure to make the required payments; and (2) the doctrine of laches does not bar PABF's action. Because equity requires the imposition of a constructive trust, and because neither laches nor the statute of limitations bars this action, we reverse.

I. BACKGROUND

¶ 2. Prior to Judy 30,1947, police officers hired by the City of Milwaukee became members of the PABF, which is a retirement system that provides pension and other retirement benefits to its members and their beneficiaries. The PABF is governed by Chapter 35 of the Milwaukee City Charter, which was amended in 1969 to provide that the City make "in lieu" contributions to the fund on behalf of the police officer members and their beneficiaries for widow's annuity and other benefits. The City was to pay a sum not to exceed 6% of the earnable compensation paid a police officer who was still eligible for fund contributions.

¶ 3. The City had authority over the fund, and could amend the provisions, provided it did not modify the annuities and associated benefits of the person who became a member of the system prior to the effective date of any amendment. The retirement act, codified at 35-01-67 of the Milwaukee City Charter, provides that officers and their beneficiaries have vested rights to annuities and benefits that shall not be diminished or impaired by subsequent legislation without the officers' consent. The act provides a lifetime widow's annuity with required contributions until an officer turns fifty-seven years old and optional contributions after that time. It provides that a police officer who continues working after turning fifty-seven may elect to continue making widow's annuity contributions to the fund. If an employee elects to do so, 4.625% of earnable compensation is deducted until the officer completes twenty-five years of service and then 4.125% of earnable compensation is deducted until employment ends. The deductions are credited to the widow's annuity account in the salary deduction fund. If the employee elects to continue making those deductions, the City has to contribute 2.5% of earnable compensation.

¶ 4. In June 1995, Sprague, then the President of the PABF Board, discovered that the City was not making the "in lieu" payments. Sprague contacted the City to address the error. The city attorney initially denied that the City owed anything to the PABF, and later revised the opinion to state:

In the event an active future entrant of the Policemens' [sic] Annuity and Benefit Fund made the requisite election under sec. 35.01 (72) in a timely maimer, the City would have to make the additional employe[e] contribution for widows' annuity of 4.625% of earnable compensation until the completion of 25 years of service and the 4.125% of earnable compensation thereafter and, in addition, make a City contribution for widows' annuity of 2.5% from each payment of salary for service rendered after age 57. For future entrants in excess of 57 years with 25 years of service who make the requisite election, the requisite contributions shall be as follows: 0% for employe[e] contributions for age and service annuity, 4.125% for employe[e] contributions for spouse annuity and 2.5% for employer contribution for spouse annuity, bringing the total City contribution to 6.625% of earnable compensation.

¶ 5. Sprague requested that the City fund an audit to determine when the deficiency in City contributions began. The City conducted the audit, but limited the scope to the six previous years, 1989-1995, based on the city attorney's opinion that a six-year statute of limitations applied. The audit revealed that the City had failed to properly fund the PABF for the entire six-year period. The City agreed to make up the deficit for that six-year period.

¶ 6. PABF brought this declaratory judgment action alleging that the City was required to make the "in lieu" widow's annuity and other contributions it neglected to make from 1969 to 1989. In its answer, the City admitted it had failed to make the required payments, but that the action was barred by the statute of limitations and laches. The trial court ordered the parties to address these issues. Both sides filed cross-motions for summary judgment.

¶ 7. PABF argued that the fund constitutes an express, statutory trust or, in the alternative, a constructive trust and, therefore, the statute of limitations defense does not apply. PABF argued that equity does not favor applying the doctrine of laches, and that even if the statute of limitations applies, the City should be estopped from relying on it.

¶ 8. The trial court ruled that: (1) no trust relationship was created; (2) the six-year statute of limitations barred the action seeking contributions before 1989; and (3) estoppel did not preclude the application of the statute of limitations because PABF did not rely on anything the City did that was misleading. The trial court granted summary judgment to the City and dismissed PABF's complaint. PABF now appeals.

II. DISCUSSION

¶ 9. This case comes to us after a grant of summary judgment. Our methodology in reviewing summary judgments is well known and need not be repeated here. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Our review is de novo.

A. Constructive Trust.

¶ 10. PABF contends that the facts presented here require the imposition of a constructive trust. We agree.

¶ 11. "A constructive trust is an equitable device created by law to prevent unjust enrichment." Watts v. Watts, 137 Wis. 2d 506, 533, 405 N.W.2d 303 (1987). The primary purpose of this device is to prevent unjust enrichment of the party unfairly holding the property that justly belongs to another. Duhame v. Duhame, 154 Wis. 2d 258, 267, 453 N.W.2d 149 (Ct. App. 1989). Whether to impose a constructive trust is a discretionary determination, but should be imposed when property is "held by someone who in equity and good conscience should not be entitled to beneficial enjoyment" where the property was obtained "by means of actual or constructive fraud, duress, abuse of a confidential relationship, mistake, commission of a wrong, or by any form of unconscionable conduct." Wilharms v. Wilharms, 93 Wis. 2d 671, 679, 287 N.W.2d 779 (1980).

¶ 12. Here, the City, apparently through its own mistake, failed to make the "in lieu" of contributions to the fund, which were required by the collective bargaining agreement. The City promised to make the payments into the fund, and failed to do so. As a result, the City retained any and all amounts for its benefit. In addition, the City, through its own legislation, expressly stated that the PABF board was not to include in its annual certification the "in lieu" of contribution amounts. The City controlled all the data necessary to determine the amount of the required contributions, and there was little if any way to discover that the City was not satisfying its obligations. The City contends it was the PABF board's responsibility to catch any failure to contribute to the fund. In essence, however, the City is pointing a finger at itself because the city treasurer and another representative of the City were members of the five-member board. Under these circumstances, it would be unfair and unjust to allow the City to benefit from its mistake to the detriment of the many police officers, who were relying on the "in lieu" of payments as part of a retirement package. Therefore, we agree that a constructive trust was created, and the City is responsible for paying the deficient amounts.

B. Statute of Limitations.

¶ 13. The City contends that it is not responsible for the deficient amounts prior to 1989 based on Wis. Stat. § 893.43, the six-year contract statute of limitations. We disagree for two reasons: (1) even if the statute was applicable, it was erroneously applied in this case; and (2) the City is estopped from using the statute of limitations.

1. Misapplication.

¶ 14. In Jensen v. Janesville Sand & Gravel Co., 141 Wis. 2d 521, 415 N.W.2d 559 (Ct. App. 1987), we held that an action alleging a breach of a pension contract is an action to enforce a contract, not an action for wages and, therefore, the six-year statute of limitations under Wis. STAT. § 893.43 applied. Id. at 526. The question therefore becomes, in this matter, when the six-year statute of limitations began to run. In the context of a continuing right to receive a periodic payment due under a pension, "the statute of limitations runs from the time when an installment is due under the pension." Id. at 527. We noted, in Jensen, that where a continuing contract, such as a pension, is capable of partial breaches, an action may be brought within six years of any partial breach. See id.

¶ 15. We reached the same conclusion in Welter v. City of Milwaukee, 214 Wis. 2d 485, 571 N.W.2d 459 (Ct. App. 1997). In Welter, the City argued that the six-year statute of limitations began to run from the effective date of each of a series of new ordinances, which lowered the age for duty disability retirees to convert to a lower benefit. See id. at 495-96. Welter argued that the statute would not begin to run until "an affected officer receives a pension installment that is less than it should be." Id. at 497. Relying on the statement in Jensen that receipt of a pension installment that was less than required by contract was a separate breach of that contract, Jensen, 141 Wis. 2d at 527, we concluded that Welter had "six years to sue on any pension installment that was less than it should have been." Welter, 214 Wis. 2d at 497.

¶ 16. As in Welter, each of the members of PABF was issued individual written benefit contracts incorporating the provisions mandated by §§ 35-01-67 and 35-01-69 of the Milwaukee City Charter. PABF alleges that the City breached these contracts because it failed to make the required "in lieu" contributions pursuant to § 35-04-01, Milwaukee City Charter, thereby lowering monthly widow's annuity payments and monies available in the annuity fund to pay for increased benefits for affected beneficiaries and retired policemen. Thus, based on Welter, each improper payment triggered the statute of limitations, rendering the current action timely filed.

2. Estoppel.

¶ 17. PABF also argues that the City should be estopped from relying on the statute of limitations defense. The City admits that it failed to make the proper payments, but argues that PABF should be responsible for the mistake. The City points to § 35-01-7(a) of the Milwaukee City Charter, which places the responsibility for collection of all the required funds on PABF. PABF concedes that under normal circumstances, ensuring that proper payments occur rests with the PABF board. However, the City thwarted the process of certifying the amounts due to the fund by amending the charter so that the certification would not include "the annual amounts required to be contributed by the City under any ordinance which may be in effect that requires the City to make contributions for the employees in lieu of their own contributions." Moreover, two representatives of the City were members of the board and therefore, in effect, the City was responsible to catch the error. We agree with PABF that the City should be equitably estopped from applying the statute of limitations.

¶ 18. Equitable estoppel is invoked when one side has engaged in fraudulent or wrongful conduct, and the other side has relied on the conduct to its detriment. See Hester v. Williams, 117 Wis. 2d 634, 644, 345 N.W.2d 426 (1984). The test as to whether a party should be estopped from asserting the statute of limitations is "whether the conduct and representations of [the defendant] were so unfair and misleading as to outbalance the public's interest in setting a limitation on bringing [the] actions." Id. at 645 (citation omitted). Here, the City engaged in wrongful conduct by failing to make the "in lieu" of payments, which it was supposed to make pursuant to the bargaining agreement. The City determined how those payments would be made, and promised to safeguard the collected amounts for use by the officers during retirement. The PABF relied on the City to keep its promise, and it had no idea that the City failed to make such payments until Sprague's discovery in 1995. Once discovered, the PABF acted promptly to protect its rights. Under these circumstances, we agree that the City is estopped from asserting the statute of limitations to avoid its responsibility.

C. Laches.

¶ 19. The City also contends that the doctrine of laches bars the PABF's claim. We disagree.

¶ 20. "For laches to bar a claim, an unreasonable delay must occur, the plaintiff must know the facts and take no action, the defendant must not know the plaintiff would assert the right on which the suit is based, and prejudice to the defendant must occur." Jensen, 141 Wis. 2d at 529. Whether the doctrine of laches applies is fact-specific. See Diehl v. Dunn, 13 Wis. 2d 280, 286, 108 N.W.2d 519 (1961). The facts in this case do not support the application of the doctrine.

¶ 21. The obligation to make the "in lieu" of payments rested solely with the City. Because of the manner in which the contributions were reported to the PABF board, monitoring whether the correct payments were being made was virtually impossible. The PABF's annual audit never revealed the error, nor did the independent audit conducted in 1986. When Sprague noticed the error, he immediately brought it to the attention of the City. When the City finally admitted the mistake, it agreed to make up the deficit only for the past six years, relying on the statute of limitations. PABF points out that the City should not be surprised by the fact that police officers and officers' widows(ers) would pursue retirement benefits that were bargained for and promised.

¶ 22. Applying the standard under these circumstances, we conclude that laches does not apply. PABF did not "know the facts and take no action." Jensen, 141 Wis. 2d at 529. Rather, it was operating under the assumption that the City was making the required contributions. It did not know the facts. We cannot enforce the doctrine of laches against PABF for not taking action before it knew of the City's mistake.

III. CONCLUSION

¶ 23. In sum, we conclude that equity requires the imposition of a constructive trust for all of the "in lieu" of contributions to the fund, which were required from 1969 to 1989. We remand this matter to the trial court for further proceedings consistent with this opinion.

By the Court. — Judgment reversed and cause remanded.

       Based on our disposition, we need not address PABF's additional arguments based on express/statutory trust and estoppel. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed).

       All police officers hired after this date became members of the Milwaukee Employes' Retirement System.

       The parties dispute what was the appropriate procedure to elect to continue contributing to the widow's annuity fund. The City contends that the statute requires the officers who want to so elect to provide notice in writing of such election; i.e., to "opt-in." The PABF contends that at the time this portion of the act was promulgated, the officers were notified that any who did not want to continue making the contributions must notify the PABF board in writing; i.e., to "opt-out." If the officer took no action, he or she was deemed to have elected to continue the widow(er)'s annuity deductions. Resolution of this dispute, however, is not germane to the issues ripe for our consideration and therefore, we will not address it.

       At oral argument, counsel for the City suggested that if none of the officers elected to continue contributions to the widow's annuity fund, then the City would not concede that it failed to make the proper payments. The City's suggestion that of all the police officers involved, none elected to continue contributing to a fund to benefit his or her widow(er) is fallacious at best, given both statistical probability and the fact that this was a negotiated benefit after collective bargaining. At worst, the City's suggestion contradicts the record, and is inconsistent with its decision to make the payments for all of the entitled officers for the six years preceding the discovery of the mistake.