author: ANDERSON, EJ.

text:
    Hunzinger Construction Company, Plaintiff-Respondent, v. SCS of Wisconsin, Inc., Defendant-Third-Party Plaintiff-Appellant, DEMCO Wisconsin 4, LLC, d/b/a The Demattia Group, Third-Party Defendant-Respondent, St. Paul Fire & Marine Insurance Company, United States Fidelity & Guaranty Company, John C. Hunzinger, and John Doe, Third-Party Defendants.
    Court of Appeals

      No. 04-0657.

      Submitted on briefs January 20, 2005.

    Decided February 23, 2005.

    2005 WI App 47
    (Also reported in 694 N.W.2d 487.)

      On behalf of the defendant-third-party plaintiff-appellant, the cause was submitted on the briefs of John E. Machulak and Susan R. Robertson of Machu-lak, Robertson & Sodos, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Edward A. Hannan and Brad A. Markvart of Hannan & Associates, LLC, Brookfield.

      On behalf of the third-party defendant-respondent, the cause was submitted on the brief of Paul R. Erickson of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C., Milwaukee.
    Before Anderson, EJ., Nettesheim and Snyder, JJ.
   ANDERSON, EJ.

¶ 1. The sole issue before us is whether Demco Wisconsin 4, LLC, d/b/a The Demattia Group, as property owner, is entitled to dismissal from a lien foreclosure action initiated by SCS of Wisconsin, Inc. We hold that because the property was released from the lien by the bond issued by St. Paul Fire & Marine Insurance Company and United States Fidelity & Guaranty Company pursuant to Wis. Stat. § 779.08 (2003-04) and no personal judgment can otherwise be rendered against Demco, the trial court properly dismissed Demco from the case. We affirm.

FACTS

¶ 2. In June 2001, Demco hired Hunzinger Construction Company, a general contractor, to do extensive remodeling work on a building it owned in Milwaukee. Hunzinger in turn subcontracted with SCS to do demolition work at the site. A dispute arose between Hunzinger and SCS regarding payment for the work performed. In March 2002, SCS filed a construction lien claim pursuant to Wis. Stat. ch. 779 in the amount of $66,266, the total amount due for the work performed, against Demco's property. In April, Hunzinger filed a "Mechanics Lien-Bond to Discharge" issued by St. Paul and USF&G. As required by Wis. Stat. § 779.08, the bond had a penal sum of $82,833 or 125% of the amount of SCS' construction lien claim. The bond stated in part, "the condition of this obligation is such that if. . . Hunzinger . .. shall. .. pay any and all judgments which may be rendered against the said property in favor of the aforesaid lienor... in any action or proceeding to enforce said lien, then this obligation shall be void."

¶ 3. In September, Hunzinger filed this suit, claiming that it was entitled to offset any damages caused by one of SCS' subcontractors against the amount it owed SCS under the parties' contract. SCS filed a counterclaim for the $66,266 principal balance on the contract. SCS also initiated a third-party action against Demco to foreclose its construction lien claim against its building. In January 2003, SCS filed an amended third-party complaint joining St. Paul and USF&G as third-party defendants under the bond issued to Hunzinger and Demco. In their answer, St. Paul and USF&G admitted that Hunzinger obtained and filed the bond to discharge SCS' lien and stated: "St. Paul/USF&G, as sureties, have assumed and accepted the obligations expressed in the written bond." They also set forth the following affirmative defense:

Any obligation on the part of St. Paul Fire & Marine Insurance Company and United States Fidelity and Guaranty Company to SCS, if any, is subject to, and limited by, all terms, conditions and provisions of the bond attached to the amended third-party complaint as Exhibit 1, including the bond's penal sum, $82,833.00.

¶ 4. In November, SCS moved for partial summary judgment, seeking the balance due on its subcontract with Hunzinger. Hunzinger, St. Paul and USF&G filed a motion in opposition, arguing that they were entitled to partial summary judgment on Hunzinger's breach of contract claim and requesting dismissal of the third-party complaint against Demco. Subsequently, Demco filed its own motion to dismiss SCS' third-party complaint.

¶ 5. Following briefing and oral arguments, the trial court issued an order denying the cross-motions for partial summary judgment of SCS and Hunzinger, but granting Demco's motion to dismiss. The court's order read, in part:

3. The relief requested by Demco Wisconsin 4, LLC d/b/a The DeMattia Group, third-party defendant is granted as follows:
a. By agreement of the parties the Clerk of Courts shall satisfy the lien filed by SCS of Wisconsin, Inc. on the property owned by Demco Wisconsin 4, LLC, however, pursuant to [Wis. Stat.] § 779.08(4) such lien shall attach to the bond filed by Hunzinger Construction Company, issued by St. Paul Fire & Marine Insurance Co. instead.
b. The third-party complaint filed by SCS of Wisconsin, Inc. as to Demco Wisconsin 4, LLC is hereby dismissed without prejudice and the lis pendens shall be discharged.

SCS appeals from the portion of the order dismissing its third-party complaint against Demco.

STANDARD OF REVIEW

¶ 6. We review the trial court's ruling on a motion to dismiss and motion for summary judgment de novo. See Eternalist Found., Inc. v. City of Platteville, 225 Wis. 2d 759, 769-70, 593 N.W.2d 84 (Ct. App. 1999). This case also presents us with an opportunity to construe and apply Wis. Stat. § 779.08. Questions of statutory construction or the application of a statute to undisputed facts are questions of law on which we do not defer to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). When we interpret and apply statutes, our aim is to discern the intent of the legislature, and we look first to the language of the statute. McEvoy v. Group Health Coop. of Eau Claire, 213 Wis. 2d 507, 528, 570 N.W.2d 397 (1997). If the language clearly and unambiguously sets forth the legislative intent, we apply that language to the facts at hand. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999).

DISCUSSION

¶ 7. SCS challenges the trial court's determination that Demco was entitled to dismissal under Wis. Stat. § 779.08 on two grounds. SCS maintains that Demco is still a party to the foreclosure action because subsec. (4) of the statute provides that after the security bond is furnished, the foreclosure action "shall proceed as if no security had been furnished." Sec. 779.08(4). Next, SCS complains that by its terms, the bond in this case contemplates a precondition to liability of the sureties that a court has rendered a judgment against the liened property in favor of SCS. SCS argues this cannot happen if the trial court's dismissal of SCS' third-party action against Demco is allowed to stand. SCS misunderstands the nature of its lien foreclosure action against Demco and the release bond procedure set forth in § 779.08.

¶ 8. The construction lien laws of Chapter 779 of the Wisconsin Statutes provide rights and remedies to construction subcontractors and material suppliers. A general purpose of these laws is to ensure the payment of construction project subcontractors and material suppliers. See Kraemer Bros., Inc. v. Pulaski State Bank, 138 Wis. 2d 395, 399-400, 406 N.W.2d 379 (1987). The legislative intent of the construction lien laws is "to protect the claims of [tradespersons], laborers and [material suppliers] for work or materials provided in the improvement of real property." R. Fredrick Redi-Mix, Inc. v. Thomson, 96 Wis. 2d 715, 726, 292 N.W.2d 648 (1980), modified on other grounds, 96 Wis. 2d 715, 729a, 293 N.W.2d 528 (1980). To this end, a subcontractor or supplier may file a construction lien on the property on which it has performed the work. See Wis. Stat. § 779.01. "A construction lien is a remedy created by statute to insure payment to contractors, subcontractors, [tradesper-sons], laborers and [material suppliers] who have furnished labor or materials in good faith for the improvement of another's property." Daughtry v. MPC Sys., Inc., 2004 WI App 70, ¶ 68, 272 Wis. 2d 260, 679 N.W.2d 808 (quoting Mortgage Assocs., Inc. v. Monona Shores, Inc., 47 Wis. 2d 171, 186-87, 177 N.W.2d 340 (1970)). The procedure for an action to foreclose on a construction lien can also be found in Wis. Stat. ch. 779.

¶ 9. Wisconsin Stat. § 779.08 is entitled "Release of lien; undertaking." Pursuant to § 779.08(1) and (2) an "interested party," such as a general contractor, may file with the clerk of courts a bond to discharge the lien on the property having a penal sum equal to 125% of the lien claim. Once the bond is properly filed and deposited, § 779.08(4), provides:

Any action brought after the furnishing of security or pending at the time of the furnishing thereof in accordance with this section shall proceed as if no security had been furnished, except that after the time within which exceptions may be taken to the security, or pursuant to order of the court upon any exception so taken, the clerk shall satisfy the claim for lien of record and discharge any lis pendens filed, and except that the lien thereupon shall attach to the security and the amount adjudged due in the proceeding for foreclosure thereof shall be satisfied out of the security, and the property described in the lien claim shall thenceforth be entirely free of the lien and shall in no way be involved in subsequent proceedings. (Emphases added.)

¶ 10. While the statute plainly states that the lien foreclosure action shall continue as if the interested parties had not furnished a release bond, this does not mean, as SCS contends, that the owner of the property subject to the lien must remain a party to the action. First, the language SCS cites in support of its argument cannot be read in isolation. When read in its entirety, the statute expressly provides that if a bond is properly filed and deposited and the lien claimant does not take exception to the bond within the allowed time, the lien attaches to the security bond, the amount adjudged due in the foreclosure proceeding is satisfied out of the security bond and "the property described in the lien claim shall thenceforth be entirely free of the lien and shall in no way he involved in subsequent proceedings." Wis. Stat. § 779.08(4) (emphasis added).

¶ 11. By its plain language, the patent purpose of the release bond procedure found in Wis. Stat. § 779.08 is to allow a property owner whose property is the subject of a construction lien or a general contractor, acting on the owner's behalf, to substitute a bond for the property. It provides a means by which, before a final determination of the lien claimant's rights and without prejudice to those rights, the property may be freed of the lien, so that it may be sold, developed or used as security for a loan. The procedure thus protects both the property owner by allowing the bond to substitute for the land as the object to which the lien attaches and the claimant by providing an alternate source of recovery on the claim of lien.

¶ 12. Furthermore, a construction lien is a matter in rem and not in personam. 53 Am. Jur 2d Mechanics' Liens § 3 (1996). Absent a contractual relationship between the lienor and the property owner, a personal judgment against the property owner cannot be maintained. See Ponti v. Eckels, 129 Wis. 26, 28, 108 N.W. 62 (1906) (holding that personal judgment against the property owner was erroneous as "[t]here is no pretense either in allegation or proof of any privity between the owner and the subcontractors, or of any promise by the former to pay the latter, from which could result personal liability"); see also 53 Am. Jur 2d Mechanics' Liens §§ 447-48 (1996).

¶ 13. Because the effect of the release bond procedure is to free the real property from the effect of the claim and lien and any action brought to foreclose such a lien and because a lien foreclosure action is an in rem proceeding, unless personal judgment can otherwise be rendered against the property owner, the owner of the liened property is entitled to a judgment of dismissal from the foreclosure action. The action may then proceed against other defendants against whom a personal judgment might be rendered, such as the general contractor, the bond principals and the sureties.

¶ 14. Here, SCS was a subcontractor under contract with Hunzinger. Neither party asserts, and we are not able to find any evidence in the record, that a contractual relationship existed between Demco and SCS. After SCS properly filed a construction lien against Demco's property, Hunzinger filed with the clerk of courts a bond issued by St. Paul and USF&G in the amount of $82,833, or 125% of the $66,266 lien claim. SCS did not lodge any exception to the bond Hunzinger procured and filed. The parties subsequently agreed, in accordance with Wis. Stat. § 779.08(4), that the clerk of courts would satisfy the lien and the lien would then attach to the security bond filed by Hunzinger and issued by St. Paul and USF&G. By operation of the statute, the bond substituted for Demco's property as the object to which the lien attaches. Since Demco's property is free from the lien and since no personal judgment can be rendered against Demco, it was proper for the trial court to dismiss Demco and allow the action to proceed against the other defendants.

¶ 15. As a final matter, we briefly address SCS' claim that the bond, "[b]y its own terms," contemplates as a precondition to liability of St. Paul and USF&G that a "judgment [] . .. be rendered" specifically against Demco's property in favor of SCS, which according to SCS cannot happen if Demco is not a party to the action. SCS reminds us that St. Paul and USF&G's affirmative defense included the proviso that its liability was conditioned on the terms of the bond. Frankly, we are mystified by SCS' logic. By its own terms, the bond does not contemplate a judgment against Demco personally; rather, it envisions a judgment against Demco's property. As explained, this action is in rem, not in personam, and when the bond was recorded and court order issued, the bond obligations of both the principal and surety were substituted for the property as the object to which the construction lien attached. Thus, despite SCS' protests to the contrary, it is not left without remedy. As envisioned by the bond and the statute, the action will proceed on the bond against the remaining parties who might be held liable— Hunzinger, the general contractor and bond principal, and St. Paul and USF&G, the sureties.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       SCS also alleged other claims against Hunzinger that we need not list here.

       WISCONSIN Stat. § 779.08(1) and (2) provide:
      (1) The person against whom a hen is claimed or any other interested party may file with the clerk of court in whose office the claim for hen is filed an undertaking executed by 2 or more sufficient sureties to the effect that the person against whom the hen is claimed shah pay the amount of the claim and ah costs and damages which may be awarded against that person on account of the hen or in heu thereof deposit with the clerk of the court a sum of money, certified check or negotiable government bonds in par value equal to 125% of the claim for hen. The court in which any action to foreclose the hen may be brought shah determine any question of sufficiency of the sureties if exception is taken thereto by the hen claimant within 10 days after notice of the filing of such undertaking or deposit of other security and may upon notice and upon motion of any party, order any sum of money deposited to be invested. The depositor shah be entitled to any income from the investments, certified check or negotiable U.S. government bonds deposited and the clerk shah pay the income to the depositor without order when received or, in the case of coupons, as the income becomes due.
      (2) If an undertaking is furnished, it shah be accompanied by the affidavits of the sureties in which each states that the surety is worth, over and above ah debts and liabilities in property within this state not exempt from execution, an amount in the aggregate equal to 125% or more of the amount of the claim for hen.

       It is important to note that in this case the landowner was not named as a principal on the release bond. Our decision does not speak to the question of whether a property owner who is also a principal on the bond is entitled to a dismissal from the lien foreclosure action.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent,  v. Leonard A. Sarnowski, Defendant-Appellant.
    Court of Appeals

      No. 04-0679-CR.

      Submitted on briefs February 8, 2005.

      Decided February 23, 2005.

    2005 WI App 48
    (Also reported in 694 N.W.2d 498.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael K. Gould, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Wedemeyer, PJ., Fine and Curley, JJ.

       Petition to review denied 9-8-2005.

   FINE, J.

¶ 1. Leonard A. Sarnowski appeals from a judgment convicting him of violating Wis. Stat. § 948.22(2) (1999-2000) by not supporting his children for at least 120 consecutive days, and from the trial court's order denying his motion for postconviction relief. Sarnowski waived his right to a jury, and the case was tried to the trial court. Sarnowski contends that the judge improperly based her finding of guilt on what she knew from her own experience rather than the evidence at trial. We agree and reverse.

I.

¶ 2. Wisconsin Stat. § 948.22(2) makes it a crime to "intentionally" not support one's minor children "for 120 or more consecutive days" when one is "legally obligated" to do so. The State charged that Sarnowski did not support his children for more than 120 consecutive days between October 1, 2000, and May 1, 2001.

¶ 3. Through counsel and personally, Sarnowski agreed that he was under a court order requiring him to pay child support, that he knew about the order, and that he did not make the required payments for the 120 or more consecutive days. Accordingly, the parties stipulated that the only issue for trial was whether he "intentionally" did not make the required payments.

¶ 4. Wisconsin Stat. § 948.22(6) (1999-2000) made (and makes today, see § 948.22(6) (2003-04)) the "inability" to support one's children an affirmative defense, but provides that "[a] person may not demonstrate inability to provide child... support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets." The defendant has the burden of proving this affirmative defense "by a preponderance of the evidence." Ibid.

¶ 5. Sarnowski was thirty-five years old at the time of trial. He did not graduate from high school but later earned his General Equivalency Diploma. He testified that he went into the carpentry "trade when I was around 20." He asserted that he did not meet his child-support obligations during the relevant period because he could not find work.

¶ 6. Sarnowski testified that in the late 1990s he had worked as a carpenter for Atlas Realty and "[r]e-habbed houses" for the company but was let go in September of 2000 because it did not need him anymore. He claimed that he looked for work, but was unable to find it because of what he contended was a slow period in construction. He named a number of places where he sought work, and told the trial court that he also either telephoned potential employers or went to job sites looking for work "at least three or four [times] a week." He testified that the woman with whom he lived supported him.

¶ 7. Sarnowski's former wife testified that she believed Sarnowski was working from October 1, 2000, to May 1, 2001, at various construction jobs "for himself' and for cash. Other than this testimony, the State did not introduce any evidence contradicting Sarnowski's story. It also did not introduce any evidence about the Milwaukee job market from October 1, 2000, to May 1, 2001, relevant to Sarnowski's work experience or abilities.

¶ 8. As noted, the trial court found Sarnowski guilty of violating Wis. Stat. § 948.22(2) (1999-2000). In an oral opinion explaining the finding, the trial court recognized that it was presented with "competing statements" by Sarnowski and his former wife about whether Sarnowski worked from October 1, 2000, to May 1, 2001. The trial court credited the testimony of Sarnowski's former wife, but, as explained in its oral opinion and in its written decision denying Sarnowski's motion for postconviction relief, it did so not because of an assessment of their respective demeanors, but, rather, largely because of the trial judge's personal experience looking for carpenters. Thus, in its oral decision, the trial court reflected:

Interestingly enough, in October of 2000, my husband and I closed on an old house built in 1894. Before we were able to move in in April of 2001, we essentially gutted and redid this house. And I think I can speak from my recollection of this period of time in October of 2000, the economy had not yet gone through the huge slow down that it went through between — I don't know — different industries at different times, but it's safe to say right now the economy is slower than it was in October of 2000 based upon employment figures and so on. The slow down was only just beginning at that point. But during our experience between October of 2000 and April of 2001 and trying to get people to the job site to do work, it appeared that there were too few workers available to do the work that needed to be done.
Mr. Sarnowski's testimony was that he does not do only the exterior work but that he does remodeling, and he does install cabinets and hanging of the doors. That when he worked for Atlas, he was rehabbing homes for the realty company. I think fact finders are entitled to also use their experience in the affairs of life, and it has not been my experience — and I specifically remember that period of time that there was a shortage of work in the remodeling industry.

¶ 9. In its written decision denying Sarnowski's motion for postconviction relief, the trial judge reiterated her reliance on what she knew from her home-remodeling experience:

It is undisputed that the court considered its own experiences in finding that the defendant could have found a job if he wanted to. The court specifically commented on its efforts to renovate a house during the same period of time the defendant was looking for work. The court did not see a slowdown in the economy which supported the defendant's position; rather, based on its own experience, it found workers having the same occupation were extremely scarce.

(Record references omitted.)

¶ 10. The decision quoted and rejected Sarnowski's contention that the trial court had improperly taken judicial notice of the job market for the construction industry or home rehabbing carpenters: "The court was not taking 'judicial notice of disputed non-adjudicative economic "facts."' Rather, it was acting as a factfinder and weighing the evidence." (Record references omitted.)

II.

¶ 11. A trial court's admission or exclusion of evidence is a discretionary decision that we will sustain if it is consistent with the law. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983). We review de novo whether that decision comports with legal principles. See State v. Pittman, 174 Wis. 2d 255, 275, 496 N.W.2d 74, 82 (1993).

¶ 12. Verdicts, whether rendered by juries or judges, must either be based on the evidence properly admitted at the trial, or matters for which judicial notice may be taken. Although there is some eviden-tiary leeway in trials to the court, bench-trial judges may not use inadmissible evidence to decide a "critical issue." McCoy v. May, 255 Wis. 20, 25, 38 N.W.2d 15, 17 (1949). Both juries and judges may, of course, draw logical inferences from the evidence, connecting its dots into a coherent pattern. De Keuster v. Green Bay & W. R.R. Co., 264 Wis. 476, 479, 59 N.W.2d 452, 454 (1953).

¶ 13. Trial courts may take judicial notice in limited areas — "fact[s] generally known within the territorial jurisdiction of the trial court," or "fact[s] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Wis. Stat. Rule 902.01(2). Significantly, a court may not take judicial notice unless the parties have at some point "an opportunity to be heard." Rule 902.01(5). Further, a judge may not take "judicial notice" of things that he or she knows unless that knowledge also falls within the rule. State v. Peterson, 222 Wis. 2d 449, 457-458, 588 N.W.2d 84, 87-88 (Ct. App. 1998) ("A trial court sitting as fact-finder may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute, but it may not establish as an adjudicative fact that which is known to the judge as an individual.") (footnotes omitted).

¶ 14. As we have seen, the trial judge here indicated that she was not relying on judicial notice when she found Sarnowski guilty, even though that finding was based largely on her personal experiences in trying to find carpenters to help gut and redo her 19th-Century house. Rather, she wrote in her decision denying Sarnowski's motion for postconviction relief that she was merely "weighing the evidence," albeit through the filter of her "own experience."

¶ 15. Although as the trial court pointed out, jurors are routinely told that "[i]n weighing the evidence, you may take into account matters of your common knowledge and your observations and experience in the affairs of life," Wis JI — Criminal 195, the shortage, vel non, of carpenters in the Milwaukee area from October 1, 2000, to May 1, 2001, is not something within the "common knowledge" of either jurors or judges. Additionally, the trial judge's trouble getting carpenters help to fix up her house is not, without more, evidence of job opportunities for carpenters in the Milwaukee area during that period. Had the State introduced competent evidence relevant to the employ-ability of Milwaukee area carpenters during that time, the trial court could have used that evidence to assess Sarnowski's testimony and "inability" defense, drawing whatever inferences she deemed appropriate. But by using her specific experience as a substitute for that evidence, which was not subject to judicial notice, the trial judge became, in essence, an impermissible surrogate witness for that evidence. See Solberg v. Robbins Lumber Co., 147 Wis. 259, 265, 133 N.W. 28, 30 (1911) (jurors may use personal knowledge to understand the evidence; they may not "supply a material item of evidence by assuming knowledge on the subject").

¶ 16. The trial judge erred by using her experience in trying to get carpenters to work on her house as a basis for her decision on the critical issue of whether Sarnowski had established his "inability" defense under Wis. Stat. § 948.22(6). Accordingly, we reverse and remand for a new trial.

By the Court. — Judgment and order reversed and cause remanded.

       Wisconsin Stat. Rule 902.01 reads in full:
      Judicial notice of adjudicative facts. (1) Scope. This section governs only judicial notice of adjudicative facts.
      (2) Kinds op facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is any of the following:
      (a) A fact generally known within the territorial jurisdiction of the trial court.
      (b) A fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
      (3) When discretionary. A judge or court may take judicial notice, whether requested or not.
      (4) When mandatory. A judge or court shall take judicial notice if requested by a party and supplied with the necessary information.
      (5) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
      (6) Time op taking notice. Judicial notice may be taken at any stage of the proceeding.
      (7) Instructing jury. The judge shall instruct the jury to accept as established any facts judicially noticed.

       Sarnowski does not contend that if the trial judge's personal experience is not considered that there is insufficient evidence to find that he had not established his defense. Accordingly, we do not consider whether a remand for trial violates his right to be free from double jeopardy. See State v. Ivy, 119 Wis. 2d 591, 609-610, 350 N.W.2d 622, 631-632 (1984) ("[WJhere a defendant claims on appeal from a conviction that the evidence is insufficient to sustain the conviction, the appellate court is required to decide the sufficiency issue even though there may be other grounds for reversing the conviction that would not preclude retrial.").


author: PETERSON, J.

text:
    In re the Marriage of: Larry M. Waln, Petitioner-Respondent, v. Barbara J. Waln, Respondent-Appellant.
    Court of Appeals

      No. 04-1271-FT.

      Submitted on briefs December 10, 2004.

      Decided February 23, 2005.

    2005 WI App 54
    (Also reported in 694 N.W.2d 452.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven L. Miller oí Miller & Miller, River Falls.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Vance M. Waggoner, Oconto Falls.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   PETERSON, J.

¶ 1. Barbara Wain appeals from a divorce judgment. She argues the circuit court erred hy concluding the spendthrift provision of Wis. Stat. § 62.63(4) barred it from considering Larry Wain's pension from the City of Milwaukee as part of the marital estate. We agree, reverse the judgment and remand with directions to consider the pension.

BACKGROUND

¶ 2. Barbara and Larry Wain were married in 1977. At the time of their divorce, they had been married for twenty-six years. Larry worked for the City of Milwaukee Police Department from 1976 until 1995, when he filed for duty disability. In 1996, he began duty disability, which provides him a monthly payment and continues accrual of service time on his pension. In 2007, when Larry turns sixty-three, his duty disability will end and his pension payments will begin.

¶ 3. When Larry turns sixty-three, he may designate a pension beneficiary and select a payout option from the following: (1) single life annuity, providing no payments after his death; (2) fifty percent joint survivor annuity, providing his beneficiary with half the pension after his death; or (3) percentage payable after death, providing his beneficiary with any elected percentage of the pension after his death. His choice of payout option affects the amount of the monthly pension payment he receives.

¶ 4. On September 9, 2003, the date of the final divorce hearing, the value of Larry's pension was $363,260.70. The value of the rest of the divisible marital estate was approximately $132,000. At the hearing, Barbara sought half of Larry's monthly pension payment, when and if it is paid; an order directing Larry to elect the fifty percent joint survivor annuity pension payout option and name Barbara beneficiary; and an order directing Larry to assist her in obtaining life insurance on his life, at her expense, for the time period between the divorce and the commencement of pension payments.

¶ 5. The circuit court found, due to the spendthrift provision of Wis. Stat. § 62.63(4), Larry's pension was "not subject to property division." The court declined to order a specific beneficiary or payout election because it concluded it was barred from doing so by the statute or, alternatively, would decline to do so due to the uncertainty of the future "health and financial situation" of the parties. The court ordered Larry to assist Barbara in obtaining life insurance on his life at her expense.

¶ 6. Barbara moved for reconsideration. She argued that even if the pension was not subject to division through a domestic relations order by virtue of Wis. Stat. § 62.63(4), the pension was a marital asset that must be considered when dividing the property. The motion was denied.

STANDARD OF REVIEW

¶ 7. The division of property in a divorce action is within the circuit court's discretion. Weiss v. Weiss, 122 Wis. 2d 688, 692, 365 N.W.2d 608 (Ct. App. 1985). However, determining whether property is subject to division involves the application of a statute to uncontested facts, a question of law that we review independently. Id. We are also asked to harmonize the spendthrift provision of Wis. Stat. § 62.63 with the statute controlling the division of property at divorce, Wis. Stat. § 767.255. Statutory construction is a question of law that we review without deference to the circuit court. Lindsey v. Lindsey, 140 Wis. 2d 684, 692, 412 N.W.2d 132 (Ct. App. 1987).

DISCUSSION

¶ 8. The division of property at divorce is governed by Wis. Stat. § 767.255. Generally, all property, other than property acquired by a spouse through gift or inheritance, is presumed to be divided equally between the spouses. Wis. Stat. § 767.255. The presumption of equal property division maybe altered after considering the factors enumerated in Wis. Stat. § 767.255(3).

¶ 9. Wisconsin courts usually consider a pension as property, rather than income, and "either divide it or divide other marital assets to effect a de facto pension division." Steinke v. Steinke, 126 Wis. 2d 372, 379-80, 376 N.W.2d 839 (1985) (citing Schafer v. Schafer, 3 Wis. 2d 166, 171, 87 N.W.2d 803 (1958) (postal service pension was "incapable of division by the court" but should have been considered when dividing the marital estate)). As the Steinke court explained:

A spouse's interest in a pension plan is in the nature of property of the marital estate to be divided. The marital estate represents the total of the wealth of property brought into the marriage by either party, as well as wealth accumulated during the marriage, pursuant to the parameters of sec. 767.255, Stats. The division of the estate, presumed to be equal, effectuates the policy that each spouse makes a valuable contribution to the marriage and that each spouse should be compensated for his or her respective contributions. An interest in a pension plan is part of the wealth brought to, or accumulated during, the marriage. As with other property constituting the marital estate, the value of the pension interest must be included in the property division.

Id. at 380-81 (footnote omitted).

¶ 10. Larry argues, however, that because his pension is governed by a statutory spendthrift provision, his pension cannot be considered by the court when dividing the parties' property at divorce. The spendthrift provision, contained in Wis. Stat. § 62.63(4), provides:

Except as provided in s. 49.852 and subject to s. 767.265, all moneys and assets of a retirement system of a 1st class city and all benefits and allowances, both before and after payment to any beneficiary, granted under the retirement system are exempt from any state, county or municipal tax or from attachment or garnishment process. The benefits and allowances may not be seized, taken, detained or levied upon by virtue of any executions, or any process or proceeding issued out of or by any court of this state, for the payment and ratification in whole or in part of any debt, claim, damage, demand or judgment against any member of or beneficiary under the retirement system. No member of or beneficiary under the retirement system may assign any benefit or allowance either by way of mortgage or otherwise. The prohibition against assigning a benefit or allowance does not apply to assignments made for the payment of insurance premiums. The exemption from taxation under this section does not apply with respect to any tax on income.

Larry claims that this language bars the circuit court from dividing his pension, either directly or indirectly.

¶ 11. There is little case law interpreting how the statutory spendthrift provision governing government pensions affects the court's power to equitably divide marital assets at divorce. In Courtney v. Courtney, 251 Wis. 443, 29 N.W.2d 759 (1947), the plaintiff sought to garnish her former husband's City of Milwaukee pension payments to satisfy unpaid alimony. The pension was governed by a statutory spendthrift provision. Id. at 445. The court concluded that the wife could not use garnishment to reach the funds because alimony judgments are subject to revision and thus are not final judgments. Id. at 450. However, it also held the divorce court retained the authority, even in the face of the spendthrift provision, to enforce its decree and could reach the pension funds through quasi-garnishment. Id. at 451.

¶ 12. While Courtney involved alimony, not property division, its reasoning for allowing the pension funds to be reached, even in the face of a broad spendthrift provision, is instructive. The court stated that the pension funds "are created for the protection, not only of the employee or insured, but for the protection of his family. Similarly, the purpose of exemptions is to relieve the person exempted from the pressure of claims that are hostile to his and his dependents' essential needs." Id. at 449. In light of those purposes, the pension was reachable for alimony payments. Id.

¶ 13. Lindsey also involved a City of Milwaukee pension, this time in the context of property division. Lindsey, 140 Wis. 2d at 686. The issues in Lindsey were whether, in light of the spendthrift provision, a pension was subject to a domestic relations order and whether the court had the discretion to order the employee spouse to make a specific payout selection. Id. at 686-87. We concluded the spendthrift provision barred direct division of the pension. Id. at 694. However, we also concluded that the circuit court retained broad discretion to order the employee spouse to make a specific payout election or enter other orders to protect the non-employee spouse's interest in the pension funds. Id. at 696-97. We remanded to the circuit court "to consider whether it should exercise its discretionary authority to direct [the employee spouse] to select a specific retirement payout option and to consider what other orders, if any, are appropriate in the event a selection is made which runs counter to [the non-employee spouse's] interests." Id. at 698.

¶ 14. Larry argues that Lindsey cannot be read to hold that pensions must be considered in the marital estate. In Lindsey, we declined to address the employee spouse's arguments regarding alleged error in the property division of the pension because of his failure to file a cross-appeal. See i d. at 698 n.10. Thus, we did not directly address the issue raised in this case, whether a spendthrift provision prevents a pension from being considered in the marital estate.

¶ 15. Nonetheless, our reasoning in Lindsey is relevant here. We examined a spendthrift provision and determined that the circuit court had the discretion to order a specific payout selection or enter other orders to protect the non-employee spouse's interest in the pension. Implicit in the holding is that the non-employee spouse does, in fact, have an interest in those funds. That conclusion is consistent with the policies embraced in the legislative scheme of Wis. Stat. chs. 766 and 767 — shared ownership of assets during marriage and presumptive equal division of assets at divorce— and does no violence to the language of the spendthrift provision of Wis. Stat. § 62.63(4), which bars direct division of those funds.

¶ 16. Larry also argues that because the legislature has amended other spendthrift provisions to allow direct division but has not amended Wis. Stat. § 62.63(4) to do the same, the legislature intended to exempt his pension from any type of consideration at divorce. See Wis. Stat. § 40.08(lm) (permitting division of state retirement by qualified domestic relations order), and Wis. Stat. § 40.80(2r) (permitting division of state deferred compensation by domestic relations order). However, "[n]umerous variables, unrelated to conscious endorsement of a statutory interpretation, may explain or cause legislative inaction." Wenke v. Gehl Co., 2004 WI 103, ¶ 33, 274 Wis. 2d 220, 682 N.W.2d 405. Additionally, Larry's interpretation of the legislature's intent regarding the spendthrift provision contradicts the policies contained in Wis. Stat. chs. 766 and 767. See Wis. Stat. § 766.62 (classifying deferred employee benefits as marital property) and Wis. Stat. § 767.255 (presumption of equal division of marital estate).

¶ 17. The spendthrift provision for Larry's pension, Wis. Stat. § 62.63(4), bars a court from directly dividing the pension. However, the pension is still a marital asset accumulated during the course of the marriage. Even when a court cannot divide a pension through a domestic relations order, the court "retains broad discretion in dividing a pension plan between the parties." Lindsey, 140 Wis. 2d at 696. The court has the discretionary authority to order the employee spouse to make a specific payout election or enter other orders "in the event a selection is made which runs counter to [the non-employee spouse's] interests." Id. at 698. Therefore, the spendthrift provision, while barring a direct order dividing the pension, does not usurp the court's ability to effectuate an equitable division of the parties' assets, including the pension.

¶ 18. Because the circuit court erroneously concluded the spendthrift provision left it no discretion to consider the pension when dividing the marital estate, we reverse and remand with directions to consider the pension.

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

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       This amount includes the proceeds from the sale of the parties' house, $101,784; a $20,000 bank account; Barbara's pension valued at $1,700; and the cash value of life insurance, $8,348.

       Barbara also sought maintenance, but does not appeal the circuit court's ruling on that issue.

       Wisconsin Stat. § 767.255 provides, in relevant part:
      (1) Upon every judgment of annulment, divorce or legal separation,... the court shall divide the property of the parties and divest and transfer the title of any such property accordingly....
      (3) The court shall presume that all property not described in sub. (2)(a) [property acquired by gift or inheritance] is to be divided equally between the parties ....

       At the time, the pension was called the Policemen's Annuity & Benefit Fund of Milwaukee.

       The spendthrift provision analyzed in Lindsey v. Lindsey, 140 Wis. 2d 684, 412 N.W.2d 132 (Ct. App. 1987), did not include the introductory language, "[e]xcept as providedin s. 49.852 and subject to s. 767.265," that removes child, spousal and family support orders from the scope of the spendthrift provision. See 1997 Wis. Act 191, § 83. However, because we considered Wis. Stat. § 767.265 when deciding Lindsey, the amendment does not affect our conclusions there.


author: BROWN, J.

text:
    James V. Holschbach, Plaintiff-Appellant, v. Washington Park Manor and American Family Mutual Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 04-1307.

      Submitted on briefs January 20, 2005.

    Decided February 23, 2005.

    2005 WI App 55
    (Also reported in 694 N.W.2d 492.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jordan P Blad of Alpert & Fellows, LLP, of Manitowoc.
    On behalf of the defendants-respondents, the cause was submitted on the brief of William R. Wick and Kristy A. Christensen of Nash, Spindler, Grimstad & McCracken LLP of Manitowoc.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review denied 5-11-2005.

   BROWN, J.

¶ 1. This case involves an issue that has arisen numerous times in Wisconsin case law, namely, whether an injured plaintiff who has slipped and fallen on an icy public sidewalk may sue the owner of the property abutting the walk for not alleviating that condition. The law is that when a properly working downspout built in the ordinary and usual manner discharges water upon the property and such water finds its way to the public sidewalk because of the natural slope and topography of the land, the resulting runoff onto the sidewalk is a natural condition for which the property owner incurs no liability. Such are the facts of this case; we therefore affirm.

¶ 2. This case comes before us on summary judgment. We review summary judgments de novo, employing the same well-known methodology the circuit court employs. Gruber v. Village of N. Fond du Lac, 2003 WI App 217, ¶ 4, 267 Wis. 2d 368, 671 N.W.2d 692. We will affirm such a judgment only when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Id. We have drawn all reasonable inferences in the appellant's favor in the recitation of facts that follows. See Morris v. Juneau County, 219 Wis. 2d 543, 550, 579 N.W.2d 690 (1998) (court should draw inferences in the light most favorable to the nonmoving party).

¶ 3. On the evening of December 30, 1999, James V. Holschbach slipped and fell on a snow-covered, public sidewalk as he walked south on South 12th Street in Manitowoc, Wisconsin. The dusting of snow on the sidewalk obscured the large patch of ice that caused Holschbach to lose his balance. As Holschbach unsuccessfully attempted to regain his footing, his ankle popped, causing him severe pain. The fall seriously injured him.

¶ 4. The accident occurred on the part of the sidewalk abutting 1020 South 12th Street, where defendant Washington Park Manor owned and operated an apartment complex. The patch of ice where Holschbach slipped lay on the sidewalk at the northeast corner of the property.

¶ 5. The icy patch formed as a result of runoff from Washington Park Manor's property. The northeast corner of the apartment complex had a downspout running from the roof of the building to the ground below. This downspout lay roughly twenty-five feet from the sidewalk, directing drainage away from the building. Water would run from that area down to the sidewalk because of the grade of the land. The elevation of the area where the downspout discharged lay about two feet above sidewalk level, causing a slope. A retaining wall on the north end of the property might also have contributed to the flow of water. Water would flow from the building, down the slope to the wall, and then down the wall to the sidewalk.

¶ 6. According to the neighbor who eventually discovered Holschbach lying on the sidewalk, icy conditions resulting from the described runoff presented an ongoing problem. In spite of his complaints about the drainage problem, however, Washington Park Manor never corrected the problem. The problem might have been alleviated had Washington Park Manor connected its downspout to the city's storm sewer system, as a local ordinance arguably required. Such a connection had been available to the property since at least 1986.

¶ 7. On December 3, 2002, Holschbach commenced a lawsuit against Washington Park Manor. The complaint alleged a negligence cause of action based on the unsafe condition of the sidewalk. It also named American Family Mutual Insurance Company, Washington Park Manor's insurer, as a defendant.

¶ 8. Both defendants moved for summary judgment on November 7, 2003, and the court rendered its oral decision in their favor on February 26, 2004. According to the circuit court, the case law indicated that the flow of water from the property was by itself insufficient to create liability for slips and falls on a public sidewalk. It asserted that the courts have only imposed liability on property owners in two types of cases: (1) those in which the property owner designed some feature on the property to act as a drainage system and the design led to the accumulation of ice on the sidewalk and (2) those in which a drainage system had a defect that caused the accumulation. It differentiated the situation at hand, observing that in this case, water left the property and ran onto the sidewalk only incidentally.

¶ 9. The circuit court further concluded that even if the city ordinance applied to Washington Park Manor, the result would not change. The court distinguished between the validity of an ordinance and the shifting of tort liability pursuant to an ordinance. According to the circuit court, cities bear the primary responsibility for sidewalk slips and falls. The court stated,

I don't believe that it's the law in Wisconsin, that violation of such an ordinance results not only in making the property owner responsible for an ordinance violation should the city decide to prosecute, but also create [s] a civil liability for a slip and fall where there was no such liability before.

Accordingly, the court granted the defendants' motion for summary judgment.

¶ 10. We begin by repeating the following well-established rule: when ice or snow has accumulated on a public sidewalk abutting private property, the property owner owes no duty to passers-by either to clear the sidewalk or to scatter abrasive material thereon. Corpron v. Safer Foods, Inc., 22 Wis. 2d 478, 484, 126 N.W.2d 14 (1964). A defendant may, however, incur liability for artificial accumulations. See id. at 484; Gruber, 267 Wis. 2d 368, ¶ 2. Thus, whether Holschbach has any chance of winning his suit depends upon whether the runoff causing the ice puddle upon which he slipped was a natural or an artificial condition. We determine independently which of the two categories applies, because the issue presents a question of law. Id., ¶ 3.

¶ 11. As we stated in Gruber, whenever land grading and structures on the property are built in a usual and ordinary way and not for the purpose of accumulating and discharging runoff on a public sidewalk, the courts will deem the incidental drainage that results natural. Id., ¶ 2; see also Corpron, 22 Wis. 2d at 484. On the other hand, when a property owner by negligent omission allows water to accumulate where one would only expect to find a normal amount thereof — for example by failing to properly repair a drainage system —then an artificial condition exists. Gruber, 267 Wis. 2d 368, ¶ 2; see also Sambs v. City of Brookfield, 66 Wis. 2d 296, 306, 224 N.W.2d 582 (1975). Gruber recognized that the presence of a design system is crucial to a slip-and-fall plaintiffs case: something made with human labor must be defective, and the runoff must result from that defect. Gruber, 267 Wis. 2d 368, ¶ 18.

¶ 12. We agree with the trial court that the accumulation of ice in front of 1020 South 12th Street resulted from natural runoff. Certainly, the downspout's purpose involved directing water away from the apartment complex. Nothing in the record, however, reflects that the downspout was installed in other than the ordinary and usual way or that it was designed for the purpose of depositing water onto the sidewalk. Moreover, we have no facts before us to indicate that the two-foot elevation difference between the front of the building and the sidewalk was anything other than naturally occurring topography. We simply cannot assume that the combination of downspout and topography constitute a "design system."

¶ 13. The facts of Gruber are instructive. In Gru-ber, although water normally ran down an alleyway and across a sidewalk to the street during heavy flows, some of the runoff would flow down the sidewalk, resulting in ice accumulations when the pooled water froze. Id., ¶¶ 7, 9. The plaintiff in Gruber sustained her injuries when she fell on such an accumulation. Id., ¶¶ 5-7. The court held that even if the flow resulted from the varying pitches and elevations of the village's streets, it could not deem that flow artificial without the essential allegation that the village paved the streets in this arrangement "as part of a drainage system design plan." Id., ¶ 23 (emphasis added). We quoted the following observation by the trial court:

And when I look at the facts of the Gruber case, our case, well, there really was nothing to tinker with or repair. It's just that's the way it was. There were no downspouts to be maintained. There were no culverts to clean or drainageways to keep open. It was just the way it was.

Id., ¶ 11.

¶ 14. Similarly, in this case, "there really was nothing to tinker with or repair." See id. First, although the downspout was not a naturally occurring structure, nothing in the facts suggests that it was in a state of disrepair or anything other than in perfect working condition; thus, it did not require any tinkering or repairs that would have alleviated the danger of ice accumulation on the sidewalk. See Smith v. Congregation of St. Rose, 265 Wis. 393, 401, 61 N.W.2d 896 (1953) (holding trial court properly overruled a demurrer where allegations in complaint stated accumulation of water resulted from a defective or clogged downspout), overruled on other grounds by Widell v. Holy Trinity Catholic Church, 110 Wis. 2d 648, 121 N.W.2d 249 (1963). Moreover, we note again that the record does not lead us to conclude the downspout was built other than in the ordinary and usual way as an ordinary and usual addition to a building. Second, we cannot discern from the facts anything Washington Park Manor needed to "fix" about the slope of the land. The downspout and topography of the property were "just the way [the property] was." See Gruber, 267 Wis. 2d 368, ¶ 11.

¶ 15. Our holding is also consistent with our supreme court's holding in Plasa v. Logan, 261 Wis. 640, 53 N.W.2d 720 (1952). In Plasa, a drain spout collected water from the roof of the defendants' hospital building and discharged it onto the ground at the rear and southwest side of the premises adjoining the building. Id. at 641, 645. The water flowed from the point of discharge to the hospital's driveway located along the building's south side and then ran eastward down that driveway to the public sidewalk to the east of the building. Id. at 641, 644 — 45. The supreme court held that the ice puddle on the sidewalk resulted only incidentally from natural flow down the driveway. See id. at 645, 647. The court did not conclude that the property's topography in combination with a drain spout on the side of the building resulted in an artificial "design system."

¶ 16. Holschbach attempts to distinguish Plasa from this case. In that case, he observes, the point of discharge was on a different side of the building from the public sidewalk, and the water had to make its way over some distance to reach the sidewalk. He points out that the court "went so far as to state that the discharge of the roof water to the rear of the property showed a clear intent not to divert the same to the front across the public walk." He appears to read Plasa to say that the flow of water from point of discharge to the public sidewalk is natural runoff only when the discharge point lies far away from the public sidewalk and where the landowner does not intend the runoff to reach the sidewalk.

¶ 17. We reject that characterization of Plasa. Plasa stands for the proposition that when a properly working downspout constructed in the ordinary and usual way discharges water onto land and such water flows to the sidewalk merely by virtue of the natural and ordinary layout of the land, no design system exists. We do not read the court's observation about where the defendants intended the water to end up to mean that this intent directly determined the designation of water flow as natural or artificial. At most, that intent might bear on whether the landowner intended the combination of a downspout and natural topography to operate as a "design system." Where the landowner places a downspout in a common and expected location on the property — as was the case both here and in Plasa — there simply is not enough evidence to con-elude that the landowner intended to create such a "design system." Moreover, we see no logical reason why the distinction between natural and artificial water flow should turn on how many feet the point of discharge lies from the point of accumulation.

¶ 18. Holschbach further urges that Adlington v. City of Viroqua, 155 Wis. 472, 144 N.W. 1130 (1914), governs this case. In Adlington, the supreme court affirmed the property owners' liability to the slip-and-fall plaintiff. Id. at 473-74, 480. The defendants discharged water onto a private alleyway on their property via a conveyer pipe. Id. at 473. The runoff reached the nearby sidewalk because a culvert designed to catch the excess drainage had become clogged. Id. at 473, 477-78.

¶ 19. We disagree that this case resembles Adling-ton. That case falls squarely within the rule we clarified in Gruber. An object made with human labor (the culvert) contained a defect (the obstruction), and this defect resulted in the accumulation of ice on the nearby sidewalk. Here, by contrast, no human-made object had any defect that resulted in the drainage. Rather, an artificial object with no alleged defect whatsoever deposited water upon the ground; from there the natural topography drained the excess onto the sidewalk.

¶ 20. We next turn to Holschbach's argument that Washington Park Manor's failure to hook up the downspout to the storm sewer violated a local ordinance requiring them to connect. Holschbach concedes that the ordinance did not attempt to shift the responsibility for maintaining the public sidewalk from the city to private landowners whose properties abutted the sidewalk. He appears to recognize that such liability shifting is contrary to law. See Kobelinski v. Milwaukee & Suburban Transp. Corp., 56 Wis. 2d 504, 513, 202 N.W.2d 415 (1972) ("Since the city cannot delegate its primary responsibility to maintain its sidewalks, it follows it cannot delegate or limit its primary liability by ordinance."). His theory of liability is that the storm sewer ordinance "simply codified the common law responsibility for artificial conditions and set the standard of care for such property." Holschbach's argument clearly relies on the proposition that the ice accumulation that injured him qualified as an artificial condition.

¶ 21. We reject that argument. We have already concluded that the ice patch formed as a result of a natural runoff. Admittedly, hooking up to the local storm sewer might have alleviated any dangerous condition on the abutting sidewalk. But the fact is that any perceived negligence by Washington Park Manor in failing to hook up to the storm sewer does not magically turn the naturally formed ice puddle into an accumulation formed by artificial means. If the supreme court or our legislature wants to fashion a rule or statute making landowners liable for slip-and-fall injuries because of a failure to hook up to a working storm sewer, this court will follow that law. But as the law stands now, the landowner has no such exposure, and this court has no power to create that exposure. See Cook v. Cook, 208 Wis. 2d 166, 188-89, 560 N.W.2d 246 (1997) (Unlike the supreme court, we are primarily an error-correcting court.).

¶ 22. The icy condition of the sidewalk in front of Washington Park Manor resulted from a natural accumulation of water. For that reason, we do not hold the defendants liable for that condition. This result does not change merely because a city ordinance may have required Washington Park Manor to hook up its downspout to the city storm sewer system. We therefore affirm the circuit court's summary judgment for the defendants.

By the Court. — Judgment affirmed.