author: SCHUDSON, J. CURLEY, J.

text:
    Karl A. Burg by his legal guardian, Gladys M. Weichert, Plaintiff-Appellant, v. Cincinnati Casualty Insurance Co. and Robert W. Zimmerman, Defendants-Respondents.

    Court of Appeals

      No. 00-3258.

      Submitted on briefs July 6, 2001.

    Decided September 11, 2001.

    2001 WI App 241
    (Also reported in 635 N.W.2d 622.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Victor C. Harding of War-shafsky, Rotter, Tamoff, Reinhardt & Bloch, S.C., of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Gregory J. Cook of Kasdorf, Lewis & Swietlik, S.C., of Milwaukee.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review granted 11-27-01.

   SCHUDSON, J.

¶ 1. Karl A. Burg, by his legal guardian, Gladys M. Weichert, appeals from the judgment, following a jury trial, dismissing his action against Robert W. Zimmerman and Zimmerman's insurer, Cincinnati Casualty Insurance Co. Burg argues that the trial court erred in concluding that Zimmerman's conduct in the operation of a snowmobile was not negligent per se, and that the jury's damages verdict was perverse. Burg is correct and, therefore, we reverse.

I. BACKGROUND

¶ 2. The facts relevant to resolution of the issues on appeal are not in dispute. According to the trial testimony, at approximately 5:30 EM. on November 29, 1995, about one hour after sunset, Burg and a friend were snowmobiling on two snow-covered gravel lanes, parallel to Highway 36 in Racine County. The two lanes, under construction and not yet open to automobile traffic, were to become additional lanes of the highway. Zimmerman and a friend, Dean Leighton, were also snowmobiling on the same lanes when they stopped, turned off their motors, and were talking; their snowmobiles, snowmobile suits, and helmets were black. The head lamps and tail lamps of Zimmerman's and Leighton's snowmobiles automatically went out when Zimmerman and Leighton turned off their motors.

¶ 3. Burg and his friend, approaching the location where Zimmerman and Leighton had stopped, did not see them until it was too late. Burg swerved, apparently to avoid Zimmerman's snowmobile, and struck Leighton's snowmobile. Burg was thrown approximately forty feet and sustained brain injury, resulting in a coma and the need for prolonged hospitalization and rehabilitation. He has permanent residual physical and cognitive impairments.

¶ 4. Burg sued Zimmerman and his insurer, alleging negligence. In pretrial proceedings, Burg moved for an order declaring that Zimmerman was negligent per se under Wis. Stat. § 350.09(1), which, in relevant part, provides: "Any snowmobile operated during the hours of darkness .. . shall display a lighted head lamp and tail lamp." Denying Burg's motion, the trial court ruled, as a matter of law, that Zimmerman had not been "operating" his snowmobile at the time of the accident.

¶ 5. During the course of the trial, Burg's attorney suggested that "maybe the Court has made an incorrect ruling up to this point, and maybe the Court can correct its ruling." The trial court, having concluded that because the motor was not on, Zimmerman was not "operating" his snowmobile at the time of the accident, responded that "it's been pretty much a consistent ruling when [snowmobiles are] parked, they're not being operated based upon the definition of the word 'operate' in the statutes of this state." The trial court, however, commented:

I think the law is stupid, but I'm stuck with what the law is.
You know, I think when two people park their snowmobile[s] out there and are sitting around talking about what route they're going to take, it's hard for me to comprehend how the law can say that's not operating, but it does.

¶ 6. After the jury retired for deliberation, Burg, relying on Wis. Stat. §§ 350.09(1)-(3) and 346.51, renewed his motion that the court find Zimmerman negligent per se. The trial court replied: "I think the record's clear on that. The motion is denied."

¶ 7. The jury found neither Zimmerman nor Leighton negligent "with respect to the use" of their snowmobiles. Burg moved for a new trial, again contending that Zimmerman was negligent per se, and also arguing that the jury's determination of damages was "perversely low." The trial court denied his motion, stating that "[tjhere is nothing in this definition [of 'operate' under Wis. Stat. § 350.01(9r)] that supports [Burg's] claim." The court reasoned, "Here the facts show. . . that the defendant was merely sitting on a snowmobile that was not turned on, and that he was not engaged in any physical manipulation or activation of the snowmobile's controls."

II. DISCUSSION

A. Negligence Per Se

¶ 8. We agree that if, as the trial court concluded, turning off one's snowmobile motor and sitting on the snowmobile on a snowmobile lane in the dark did not constitute "operating," the law would be "stupid." We conclude, however, that the statutes, literally read and reasonably applied, establish that such conduct does indeed constitute "operating" a snowmobile.

¶ 9. The interpretation of a statute presents a question of law subject to this court's de novo review. Gloudeman v. City of St. Francis, 143 Wis. 2d 780, 784, 422 N.W.2d 864 (Ct. App. 1988). "In construing a statute, the primary source is the language of the statute itself." County of Milwaukee v. Proegler, 95 Wis. 2d 614, 625, 291 N.W.2d 608 (Ct. App. 1980). Interpreting the language of the statute, we endeavor to give the words their commonsense meanings and to avoid any interpretation that would produce an absurd result. See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 449, 405 N.W.2d 354 (Ct. App. 1987). We conclude that "operate," under Wis. Stat. § 350.01(9r), is clear and unambiguous, see Proegler, 95 Wis. 2d at 624-29 (concluding that the meaning of "operate," under Wis. Stat. § 346.63(3), is clear), and that it does encompass Zimmerman's conduct in this case.

¶ 10. "Operate," under Wis. Stat. § 350.01(9r), includes "the exercise of physical control over the speed or direction of a snowmobile." "Operate," therefore, necessarily encompasses a person's actions in stopping a snowmobile and turning off its motor because, literally, such actions do "exercise physical control over the speed and direction" of the snowmobile. The fact that such actions stop the snowmobile certainly renders those actions no less controlling of speed and direction than other actions that accelerate the snowmobile or change its course.

¶ 11. Further, under the statute, turning off the motor certainly, and quite literally, involves "the physical manipulation ... of the controls of a snowmobile necessary to put it in motion." The fact that the manipulation stopped the snowmobile's motion certainly renders that action no less a manipulation of the controls necessary to put the snowmobile in motion. Indeed, in Proegler, this court, in determining the meaning of "operate" under Wis. Stat. § 346.63(3)(b), held that "restraining the movement of a running vehicle constitutes physical manipulation of a vehicle's controls which falls within the scope of our statute." Proegler, 95 Wis. 2d at 627-28. Obviously, turning off a snowmobile's motor is a "physical manipulation" of the controls, causing a "restraining [of] the movement" of the snowmobile.

¶ 12. Moreover, while Proegler involved a drunk driver sleeping in his car with the motor running, id. at 624, this court's comments now gain special significance in the context of the instant case:

"[0]ne could have 'actual physical control' while merely parking or standing still so long as one was keeping the car in restraint or in position to regulate its movements. Preventing a car from moving is as much control and dominion as actually putting the car in motion on the highway. Could one exercise any more regulation over a thing, while bodily present, than prevention of movement or curbing movement!?] As long as one were physically or bodily able to assert dominion, in the sense of movement, then he [or she] has as much control over an object as he [or she] would if he [or she] were actually driving the vehicle."

Id. at 628 (quoting State v. Ruona, 321 P.2d 615, 618 (Mont. 1958)). Indeed, a drunk driver, sleeping in a parked car with the motor running, has less physical control over that vehicle than a snowmobile operator, sitting awake at the controls of a parked snowmobile with the motor off. See also State v. Modory, 204 Wis. 2d 538, 544, 555 N.W.2d 399 (Ct. App. 1996) C'Proegler does not say that movement is necessary; rather, it merely says that if the defendant exercises dominion in the sense of movement, then the fact of operation has been established.").

¶ 13. As Burg correctly argues, the legislature, quite obviously, enacted the detailed requirements of Wis. Stat. § 350.09 in part because it "wants snowmo-bilers at night to illuminate their head and tail lamps so other people in the vicinity can see them." See Parr v. Douglas, 253 Wis. 311, 318-19, 34 N.W.2d 229 (1948) (explaining that statutes governing trailer lights establish safety standards, the violation of which "shall be prima facie evidence of unsafe practices in the use of the public highway by such vehicles"). To conclude, nevertheless, that the, mandate of § 350.09(1) does not apply to the circumstances of this case would indeed be "stupid." Such a conclusion would require an absurd statutory interpretation precluding the literal reading and commonsense application of the statute to one of the most serious dangers these safety standards are intended to prevent. See Lyons, 137 Wis. 2d at 449 (explaining that statutes are to be construed 'to avoid absurd results).

B. Damages

¶ 14. Burg also argues that "[t]he jury's award of damages was so perverse that it warrants a new trial in the interests of justice." He explains that "[his] medical condition was never in issue," and that the defense "called no medical witnesses" to counter the undisputed evidence of his permanent injuries. Further, he points out that the jury awarded damages that were considerably less than what even the defense suggested.

¶ 15. Zimmerman does not dispute Burg's factual assertions. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed admitted). He, simply argues that "[e]ven if this court were to find the damages awarded by the jury in this case inadequate, a new trial in the interests of justice is not warranted." Zimmerman, however, premises his argument on the principle that "where the jury verdict finding the plaintiff solely negligent in causing his own injuries is supported by credible evidence upon the record, inadequate damages is not a ground for a new trial." True enough; but where, as here, the jury's verdict cannot stand because the plaintiff was denied the correct ruling on Zimmerman's negligence per se, a new trial is required on both liability and damages. See Martin v. Allstate Ins. Co., 45 Wis. 2d 657, 663, 173 N.W.2d 646 (1970) (when damages award has been challenged as excessive, and error in law necessitates new trial in interests of justice, "the issue of damages should be retried with the issue of liability"); Mainz v. Lund, 18 Wis. 2d 633, 645, 119 N.W.2d 334 (1963) (although inadequate damages award "is not in itself grounds for ordering a new trial where a jury has answered other questions in the verdict so as to find no liability on the part of the party charged with negligence," the inadequate damages award may be significant in determining whether interests of justice require new trial where "the finding of no liability is against the great weight of the evidence").

By the Court. — Judgment reversed.

CURLEY, J.

¶ 16. {dissenting). The controversy in this case surrounds the interpretation of Wis. Stat. § 350.09(1) which requires, in part, "Any snowmobile operated during the hours of darkness . . . shall display a lighted head lamp and tail lamp." Burg urged the trial court to find that Zimmerman had violated this safety statute and, consequently, was negligent per se. The trial court disagreed, finding that the definition of the verb "operate" found in the statutes did not encompass the facts presented here. Those facts are that Zimmerman, while keeping the keys in the ignition, decided to stop his snowmobile by turning off the ignition, which resulted in the extinguishment of the head and tail lamp, in order to chat with his fellow snowmobiler. By contorting the statute and borrowing phrases from other cases, the majority opinion has redefined the word "operate" to place Zimmerman's conduct within the statute. I disagree and respectfully dissent.

¶ 17. The interpretation of a statute is a question of* law which this court reviews de novo. State v. Ambrose, 196 Wis. 2d 768, 776, 540 N.W.2d 208 (Ct. App. 1995). The goal of statutory interpretation is to discern and to give effect to the intent of the legislature. Hackl v. Hackl, 231 Wis. 2d 43, 47, 604 N.W.2d 579 (Ct. App. 1999); State v. Cardenas-Hernandez, 219 Wis. 2d 516, 538, 579 N.W.2d 678 (1998). The primary source for statutory construction is the language of the statute itself. Wisconsin Envtl. Decade v. Public Serv. Comm'n, 81 Wis. 2d 344, 350, 260 N.W.2d 712 (1978). In determining the meaning of any single phrase or word in a statute, it is necessary to examine it in light of the entire statute. State v. Board of Trs., 253 Wis. 371, 373, 34 N.W.2d 248 (1948). Where the statute is ambiguous, we may look to the legislative intent found in the language of the statute in relation to its scope, history, context, subject matter, and objective intended to be accomplished. Wisconsin Envtl. Decade, 81 Wis. 2d at 350; State v. Wachsmuth, 73 Wis. 2d 318, 324-25, 243 N.W.2d 410 (1976); Ortman v. Jensen & Johnson, Inc., 66 Wis. 2d 508, 520, 225 N.W.2d 635 (1975); State v. Automatic Merchandisers, 64 Wis. 2d 659, 663, 221 N.W.2d 683 (1974); Wisconsin Southern Gas Co. v. Public Serv. Comm'n, 57 Wis. 2d 643, 648, 205 N.W.2d 403 (1973). The objective to be accomplished must be given great weight in determining legislative intent. Town of Menomonee v. Skubitz, 53 Wis. 2d 430, 437, 192 N.W.2d 887 (1972). If the statute's language is clear, we look no further and simply apply the statute to the facts and circumstances before us. See Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996). An interpretation of a statute is unreasonable if it directly contravenes the language of the statute, is plainly contrary to the legislative intent underlying the statute, or lacks a rational basis. Trott v. DHFS, 242 Wis. 2d 397, 409, 626 N.W.2d 48 (Ct. App. 2001). Here, the majority's interpretation contravenes the clear statutory language and lacks a rational basis.

¶ 18. The legislature's definition of "operate," found in Wis. Stat. § 350.01(9r), reads: " 'Operate' means the exercise of physical control over the speed or direction of a snowmobile or the physical manipulation or activation of any of the controls of a snowmobile necessary to put it in motion. 'Operate' includes the operation of a snowmobile." There is nothing ambiguous about the language found in the statute which requires us to resort to other aids in interpreting the statute. Clearly, one operates a snowmobile when one controls either the speed or direction of the snowmobile or when one physically manipulates or activates the controls. A snowmobile stopped without the engine running or any controls activated, by virtue of the definition, is not being "operated" by the person sitting on it.

¶ 19. Here, Zimmerman was neither running nor moving his snowmobile when Burg was injured. While sitting on a snowmobile, stopped and turned off in the middle of a well-used snowmobile path on a dark night while wearing dark clothes surely must be negligent conduct, it does not constitute "operating" the snowmobile. Evidence was presented that in order to start the snowmobile, Zimmerman was required to both turn the key and pull a rope. When a person sits on a snowmobile that is not on, has the keys in the ignition in the off position, and, further, needs to pull a rope to start the engine, one is not exercising physical control over the speed or direction of the snowmobile. There was neither a speed nor a direction. In addition, Zimmerman was not physically manipulating or activating the controls necessary to put it in motion.

¶ 20. While the majority would make it appear that Zimmerman was in the process of slowing down and turning off the engine when the accident occurred, no evidence supports this conclusion. The record states that Zimmerman's engine had been turned off for five minutes before the accident. Therefore, the interpretation given by the majority opinion, that because Zimmerman once exercised physical control over the speed of the snowmobile by stopping it and turning it off some time before the accident occurred, but remained seated on the snowmobile, he was still "operating" the vehicle when the accident occurred, twists and distorts the interpretation of "operate."

¶ 21. Were the majority's definition to be adopted, there would be no logical stopping point. How much time need expire for someone seated on the snowmobile, after turning off the ignition and leaving the keys in the ignition, in order to no longer be "operating" the snowmobile? Is a person operating a snowmobile if he turns off the snowmobile and removes the keys, but remains seated on the snowmobile? What if someone stops the snowmobile, leaves the keys in the ignition, walks away from the snowmobile but returns and sits on it — is he still "operating" the snowmobile? Consider whether an underage person, who sits on a snowmobile stored in a garage with the keys in the ignition, is guilty of operating a snowmobile contrary to Wis. Stat. § 350.02. Clearly, the majority's attempt to reshape Zimmerman's conduct so as to fit within the definition of "operate" in order to find Zimmerman negligent is misguided and fraught with problems.

¶ 22. Moreover, contrary to the majority's contention, both the Milwaukee County v. Proegler, 95 Wis. 2d 614, 291 N.W.2d 608 (Ct. App. 1980), and State v. Modory, 204 Wis. 2d 538, 555 N.W.2d 399 (Ct. App. 1996), cases support the legal conclusion that Zimmerman was not operating the snowmobile when the accident occurred. As noted in the majority opinion, Proe-gler was found guilty of operating his vehicle while under the influence of an intoxicant when he was found sleeping in a car with the motor running. The holding of the case states that one is operating a vehicle when "a defendant starts the motor and/or leaves it running." Proegler, 95 Wis. 2d at 614. Zimmerman was doing neither when the accident occurred.

¶ 23. Modory was convicted of operating while intoxicated when he was discovered in his pickup truck, seated in the driver's side of the car with the engine running and the wheels spinning. The truck, was not moving, however, because it was resting on a mound of dirt which prevented the tires from making contact with the ground. In affirming his conviction, this court said:

We agree with the State's argument. Section 346.63(3)(b), Stats., does not require movement. The statute only requires that the defendant physically manipulate or activate any of the controls "necessary to put [the motor vehicle] in motion." There is little doubt from the evidence in this case that Modory performed the requisite acts under this statute. He was behind the wheel of a vehicle with the engine running and was attempting to free the vehicle from its stuck position.

Modory, 204 Wis. 2d at 544. Again, the undisputed facts are that Zimmerman's snowmobile engine was off, had been off for some time, and he was not attempting any movement when the accident occurred. Under both holdings, Zimmerman clearly was not operating the snowmobile.

¶ 24. I suspect the real concern behind the majority opinion's ill-conceived definition of "operate" is its objection to the jury's finding that Zimmerman's acts were not negligent at all and to the jury's award of inadequate damages to Burg. If true, then the majority should have questioned whether they were "satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain [the jury's verdict]," Kuklinski v. Rodriguez, 203 Wis. 2d 324, 331, 552 N.W.2d 869 (Ct. App. 1996), and, depending on the answer, remand for a new trial. Attempting to squeeze this factual situation into the definition of "operate" will only serve to obfuscate the law and result in additional litigation.

¶ 25. Accordingly, I respectfully dissent.

       The appeal also brings before this court the trial court order denying Burg's postverdict motion for a new trial. See Wis. Stat. Rule 809.10(4) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       None of the issues in this appeal, however, turns on the fact that Burg struck Leighton's snowmobile, not Zimmerman's.

       It was undisputed that Zimmerman's and Leighton's snowmobiles had neither their head lamps nor tail lamps illuminated at the time of the accident. WISCONSIN Stat. § 350.09(2) provides:

        After February 12,1970, the head lamp on a snowmobile may be of the single beam or multiple beam type, but in either case shall comply with the following requirements and limitations:
      (a) The head lamp shall be an electric head lamp and the current shall be supplied by a wet battery and electric generator, by a current-generating coil incorporated into the magneto or by a generator driven directly by the motor by means of gears, friction wheel, chain or belt.
      (b) The head lamp shall display a white light of sufficient illuminating power to reveal any person, vehicle or substantial object at a distance of 200 feet ahead.
      (c) If the snowmobile is equipped with a multiple beam head lamp, the upper beam shall meet the minimum requirements set forth in par. (b) and the lower most beam shall be so aimed and of sufficient intensity to reveal persons and vehicles at a distance of at least 100 feet ahead.
      (d) If the snowmobile is equipped with a single beam lamp, such lamp shall be so aimed that when the vehicle is loaded none of the high intensity portion of the light, at a distance of 25 feet ahead, projects higher than the level of the center of the lamp from which it comes.
      Section 350.09(3) provides, "After February 12, 1970, the tail lamp on a snowmobile must display a red light plainly visible during darkness.from a distance of 500 feet to the rear."

       " 'Operate' means the exercise of physical control over the speed or direction of a snowmobile or the physical manipulation or activation of any of the controls of a snowmobile necessary to put it in motion." Wis. Stat. § 350.01(9r).

       WISCONSIN Stat. § 346.51, in relevant part, provides:
      (1) No person shall park, stop or leave standing any vehicle, whether attended or unattended, upon the roadway

         of any highway . . . when it is practical to park, stop or leave such vehicle standing off the roadway, but even the parking, stopping or standing of a vehicle off the roadway of such highway is unlawful unless the following requirements are met:
      (b) Such standing vehicle must be capable of being seen by operators of other vehicles from a distance of 500 feet in each direction along such highway.
      (Emphasis and asterisk added.) Under Wis. Stat. § 346.02(10), § 346.51 is applicable to operators of snowmobiles upon roadways.

       Wisconsin Stat. § 340.01(54) states, in relevant part, " 'Roadway' means that portion of a highway between the regularly established curb lines or that portion which is improved, designed or ordinarily used for vehicular travel, excluding the berm or shoulder."

       Earlier in the trial, outside the presence of the jury, the court had explained why it believed that Wis. Stat. § 346.51 did not apply to the case:
      This isn't designed to protect snowmobiles from driving 55 feet off the highway. It's designed to protect vehicles that are traveling on the roadway.
      It requires that. .. the vehicle when stopped off the roadway is visible 500 feet back for the protection of people who are using ' the roadway, not for the protection of the people who are using the land adjacent to the roadway some 55 feet off the roadway.

       Wisconsin Stat. § 346.63(3)(b) provides, " 'Operate' means the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."

       And, indeed, affirming the trial court's interpretation would render a truly ironic result: the operator of a snowmobile that is stopped with its motor off would not be negligent per se, while the operator of a snowmobile that is stopped with its motor on would be negligent per se, although he or she would be better able to quickly respond to a dangerous situation. As Burg fairly argues:
      [E]veryone agrees that Zimmerman would have been negligent per se for sitting in the dark with his engine running and his lights off. To then argue that he is not negligent per se by turning both his engine and lights off only rewards Zimmerman for his unreasonable action. This is nonsense.

       The dangers of snowmobiling are extremely serious. According to the Wisconsin Department of Natural Resources, thirty-eight fatal snowmobile accidents were reported in Wisconsin for fiscal year 1999-2000, and collision with an object was the leading cause of death. Wis. Dep't of Natural Res., 1999-2000 Snowmobile Program Report Summary, at http://www.dnr.state.wi.us/org/es/enforcement/safety/snow-mobile_report.html. Not surprisingly, therefore, the legislature has made the "operator of a snowmobile upon a roadway" subject to numerous rules of the road governing operators of other motor vehicles. See Wis. Stat. § 346.02(10).


source: Caselaw Access Project

author: WEDEMEYER, P.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Steve Norton, Defendant-Appellant.
    Court of Appeals

      No. 00-3538-CR.

      Submitted on briefs August 7, 2001.

    Decided September 11, 2001.

    2001 WI App 245
    (Also reported in 635 N.W.2d 656.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Peter M. Koneazny, assistant state public defender of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney generad, and Maura EJ. Whelan, assistant attorney general.
    Before Wedemeyer, EJ., Schudson and Curley, JJ.
   WEDEMEYER, P.J.

¶ 1. Steve Norton appeals from a judgment entered after he pled guilty to theft from a person, contrary t o Wis. Stat. § 943.20(1)(a) (1999-2000). He also appeals from an order denying his postconviction motion. Norton claims that extraordinary circumstances, which caused his sentence to be extended nine months, constituted a new factor warranting sentence modification. Because the trial court relied on inaccurate information when imposing the sentence, and because the circumstances presented here involve a new factor, we reverse and remand for resentencing.

I. BACKGROUND

¶ 2. On November 29, 1999, Norton stole a purse from Chevette Haynes who was standing at a bus stop on Martin Luther King Drive in Milwaukee. Norton initially evaded police, but later turned himself in and confessed. He admitted that he stole the purse, stating that he was stealing money to support his drug habit. He was charged with felony theft from a person, and entered into a plea agreement wherein he agreed to plead guilty, and the prosecutor would leave the length of the sentence up to the trial court.

¶ 3. At the time of the offense, Norton was serving two years' probation for a misdemeanor theft conviction from June 1999. This sentence included a nine-month period of incarceration, which was stayed.

¶ 4. In the pre-sentence investigation report in the instant case, Norton's probation agent, Tonya Hubbard, advised the court that Norton's probation in the misdemeanor theft case would not be revoked. She recommended that Norton be sentenced to between twenty-four and forty-eight months' incarceration, and that Norton should participate in drug and alcohol treatment while in prison. At the sentencing hearing, the prosecutor recommended a sentence of thirty months, despite the plea agreement that the prosecutor would leave the length of the sentence up to the court. The prosecutor indicated that Norton needed an extended incarceration so that he could "dry out" and "be clean." Defense counsel also recommended time in prison sufficient to permit Norton to "dry out and get drugs out of his system."

¶ 5. The trial court sentenced Norton to forty-two months in prison, "consecutive to any other sentence." Six weeks after sentencing, Hubbard contacted Norton and suggested that he voluntarily agree to submit to the revocation of probation on the misdemeanor theft offense. She told him that the nine-month stayed sentenced could be served concurrently with the forty-two month sentence. Based on these representations, Norton agreed to a voluntary revocation of his probation and waived his right to a hearing. Because of the trial court's "consecutive to any other sentence" language, however, the nine-month sentence could not be served concurrently and Norton, in fact, now faced fifty-one months in prison.

¶ 6. Norton filed a postconviction motion, alleging that the revocation and extension of his sentence constituted a new factor because the trial court relied on inaccurate information when it imposed the sentence; that is, that his probation would not he revoked. The trial court denied the motion. Norton now appeals.

II. DISCUSSION

¶ 7. Norton contends that because of the unusual circumstances in this case, the trial court relied on inaccurate information when it sentenced him on the felony theft conviction. He requests that the case be reversed and remanded for resentencing. The State argues that revocation in another case can never constitute a new factor. We disagree.

¶ 8. To gain sentence modification, a defendant must establish: (1) that a new factor exists; and (2) that the new factor justifies sentence modification. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor presents a legal issue which we decide de novo. Id. Whether a new factor justifies sentence modification, however, presents an issue for the trial court's discretionary determination, subject to our review under the erroneous exercise of discretion standard. Id.

¶ 9. A new factor is a

fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.

Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). Further, a new factor is "an event or development which frustrates the purpose of the original sentence." State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989). A defendant bears the burden of proving the existence of a new factor by clear and convincing evidence. Franklin, 148 Wis. 2d at 8-9. Erroneous or inaccurate information used at sentencing may constitute a "new factor" if it was highly relevant to the imposed sentence and was relied upon by the trial court. State v. Smet, 186 Wis. 2d 24, 34, 519 N.W.2d 697 (Ct. App. 1994).

¶ 10. Although we agree with the State that, in general, revocation of probation in another case does not ordinarily present a new factor, the specific facts involved in this case require an exception to the general rule. It is clear from the sentencing transcript that everyone understood that Norton's probation would not be revoked at the time of sentencing, or subsequent to sentencing, as a result of the felony theft. Instead, the probation agent intended to use an alternative to revocation as a consequence for committing another crime while on probation. Therefore, Norton would not be exposed to the stayed nine-month sentence from the misdemeanor theft.

¶ 11. The probation agent's intentions were discussed during the sentencing hearing. The record reflects that the prosecutor was upset by the Department of Corrections decision not to revoke Norton's probation. The trial court questioned Hubbard about the decision, and she explained that the department had elected an alternative to probation revocation. It is also clear from the sentencing transcript that both sides, Hubbard, and the trial court were all focused on sending Norton to prison for a sufficient period of time so that he could receive drug treatment. The trial court fashioned the sentence which it believed was necessary to allow Norton to become "drug free." Here, the purpose of the sentence was to keep Norton in prison for a sufficient time to break him of the drug habit.

¶ 12. Subsequent to sentencing, Norton voluntarily submitted to the revocation of his probation, triggering the nine-month sentence on the misdemeanor theft based on erroneous advice from Hubbard, who indicated that the nine-month sentence could be served at the same time Norton was serving his forty-two month sentence. The nine-month sentence, however, could not be served concurrently because of the trial court's order that the forty-two month sentence be served "consecutive to any other sentence."

¶ 13. The question here is whether such circumstances present a new factor and, if so, whether sentence modification is warranted. We conclude that the circumstances do constitute a new factor and resen-tencing is required because the inaccurate information relied on by the trial court frustrates the purpose of the sentence. A new factor is a set of facts highly relevant to sentencing, but not known, or not in existence, at the time of sentencing. The probation and whether it was going to be revoked was highly relevant to sentencing. The trial court focused on imposing a sufficiently long sentence to permit Norton to "dry out" and become "drug free." The trial court was advised that Norton's probation was not going to be revoked as a result of the felony theft committed in the instant case. The prosecutor expressed disappointment that the probation would not be revoked, and the trial court inquired as to why the probation was not being revoked. After discussing the probation and understanding that the nine-month sentence would not have any impact on the instant case, the trial court proceeded to impose its sentence. The trial court believed that the nine-month stayed sentence from the misdemeanor conviction would not be an issue.

¶ 14. In a case where a defendant commits a new crime while on probation, whether or not the defendant will be exposed to the sentence underlying the probation is significant. A criminal sentence should represent the minimum amount of custody consistent with the factors of the gravity of the offense, the character of the offender, and the need to protect the public. State v. Setagord, 211 Wis. 2d 397, 416, 565 N.W.2d 506 (1997). It was not known to the trial court at the time of sentencing in this case that Norton's probation would be revoked; rather, the trial court was advised by Hubbard that probation was not going to be revoked. Thus, the trial court imposed a sentence in this case which was based on inaccurate information.

¶ 15. Moreover, the inaccurate information was directly linked to the purpose of the sentence. As noted, the State recommended thirty months in prison, indicating that this would be sufficient to "dry Norton out." Both defense counsel and Hubbard recommended at least twenty-four months in prison so that Norton would become drug-free. The trial court, referencing Norton's need for drug treatment, imposed a forty-two month sentence.

¶ 16. Norton has a right to be sentenced on accurate information. State v. Slagoski, 2001 WI App 112, ¶ 7, 244 Wis. 2d 49, 629 N.W.2d 50. Under the circumstances here, Norton's sentence was based, in part, on inaccurate information from an ordinarily reliable source a probation agent. Accordingly, we must reverse and remand for resentencing to permit the trial court an opportunity to review the sentence with the benefit of the new information; i.e., that Norton must now serve the nine-month sentence on the misdemeanor theft.

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

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


author: NETTESHEIM, P.J.

text:
    Cary N. Kain, Plaintiff-Appellant, v. Bluemound East Industrial Park, Inc. and Robert A. Johnson, Defendants-Respondents, Mason Building Systems, Inc., Third-Party Defendant, American Family Mutual Insurance Company, Intervenor.
    Court of Appeals

      No. 00-2250.

      Submitted on briefs August 3, 2001.

    Decided September 12, 2001.

    2001 WI App 230
    (Also reported in 635 N.W.2d 640.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Sean Lanphier, Gordon P. Giampietro and David A. Krutz of Michael, Best & Friedrich LLP of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of W. Wayne Siesennop and Mary Susan Maloney of Hannon, Siesennop & Sullivan of Milwaukee.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   NETTESHEIM, P.J.

¶ 1. Cary N. Kain appeals from a trial court judgment dismissing his claims against Bluemound East Indust rial Park, Inc., and denying various posttrial motions. Kain's appellate issues include the following: (1) the trial court erroneously determined that his false advertising claim is barred by the statute of limitations, (2) the trial court erred in dismissing his breach of warranty claim following his case-in-chief due to insufficient evidence, (3) the trial court erred when it included a special verdict causation question relating to his misrepresentation claims, and (4) the jury's answers to the cause questions on the strict misrepresentation claim and the negligent misrepresentation claim are inconsistent.

¶ 2. We reject Kain's arguments with the exception of the breach of warranty claim. As to that claim, we conclude that Kain presented sufficient evidence in his case-in-chief to resist a motion to dismiss. We therefore reverse that portion of the judgment dismissing Kain's claim of breach of warranty and remand for a new trial. We otherwise affirm the judgment.

BACKGROUND

¶ 3. On July 22, 1993, Kain purchased a vacant parcel of land from Bluemound East. The land was formerly a quarry site that had been filled and divided into thirty-five lots. Kain negotiated the purchase of one of these lots with Robert A. Johnson, the secretary and a part owner of Bluemound East. Johnson's company had quarried sand and gravel from the site of the land. During negotiations, Johnson assured Kain that the land would support a building exerting 3000 pounds per square foot (PSF). As part of his offer to purchase the vacant land, Kain included a rider containing a contingency regarding "soil suitability." The rider provided in relevant part, "This offer is contingent upon Buyer, at Buyer's expense, completing a subsoil analysis showing that the soil conditions of the subject property are sufficient and suitable to permit the construction and erection thereupon of the improvements contemplated by Buyer at Buyer's sole and absolute discretion." Bluemound East accepted that portion of Kain's rider and Kain accepted Bluemound East's counteroffer as to other terms.

¶ 4. Subsequently, at the real estate closing, Kain requested and received a handwritten note signed by the attorney for Bluemound East stating that Blue-mound East "shall provide to [Kain] a written guarantee that [the land] complies with all Environmental Laws, Ordinances and Statutes, and that the soils of said lot will support construction of a building exerting 3000 lbs. per sq. ft." On July 26, 1993, Johnson signed and sent to Kain a letter stating in pertinent part:

This letter is to confirm our conversations regarding environmental condition and soil stability of the subject premises.
Bluemound East Industrial Park, Inc. hereby warrants and represents to Mr. Cary N. Kain that the soils on the subject premises will satisfactorily support a minimum of 3,000 pounds per square foot.

Shortly after the closing, Kain contracted with Mason Building Systems, Inc., for the construction of an office/warehouse on the property. The building was designed to have a soil bearing capacity of less than 3000 pounds PSF. Kain did not conduct soil borings prior to the construction of the building, instead opting to rely on more shallow "test pits."

¶ 5. In April 1997, Kain discovered that the southwest corner of the building had settled by approximately 1.75 inches. As a result, Kain incurred significant expenses in repairing damage to the building and preventing further settling.

¶ 6. On August 27, 1998, Kain filed this action against Bluemound East and Johnson alleging breach of warranty, and negligent and strict misrepresentation. He later amended his complaint to additionally allege false advertising pursuant to Wis. Stat. § 100.18 (1999-2000). Bluemound East denied Kain's allegations of breach of warranty and misrepresentation and asserted that "the proximate cause of any damage to the plaintiff as alleged or otherwise was caused and contributed to by the failure of the plaintiff to exercise ordinary care in having his building designed and constructed." Bluemound East also alleged that Kain's false advertising claim was barred by the statute of limitations. Bluemound East later filed a motion to dismiss Kain's false advertising claim. The court granted Bluemound East's motion on June 15, 1999, following a hearing on the issue.

¶ 7. The remaining claims proceeded to jury trial. At the close of Kain's case, the trial court granted Bluemound East's motion to dismiss Kain's breach of warranty claim based on its determination that there was "no evidence put forth by the plaintiff to indicate that the soils . . . did not satisfactorily support a minimum of 3,000 pounds per square foot." The court additionally dismissed Kain's misrepresentation claims against Johnson personally. The court ruled that Johnson was acting as a corporate officer at all times during the sale of the property.

¶ 8. At the close of the evidence, Kain's claims of strict misrepresentation and negligent misrepresentation went to the jury. Kain and Bluemound East disagreed as to whether questions of causation should be included on the special verdict form. The court granted Bluemound East's request to include causation questions. As to strict misrepresentation, the jury found that Bluemound East had made an untrue representation that the soils would support the building. However, the jury further found that the untrue representation was not a cause of damage to Kain. As to negligent misrepresentation, the jury found that Bluemound East was negligent in making the representation that the soil would support construction of a building exerting 3000 pounds PSF. But unlike the strict misrepresentation claim, the jury then found that Bluemound East's negligence was a cause of Kain's damage. However, the jury further determined that Kain's contributory negligence exceeded Bluemound East's negligence. The jury determined that Kain's damages were $262,150.

¶ 9. Both Kain and Bluemound East filed postver-dict motions. Kain moved the trial court for a judgment notwithstanding the verdict as to his breach of warranty claim, for a change of certain answers in the special verdict and, alternatively, for a new trial due to an inconsistent verdict. Bluemound East requested in part that the court dismiss Kain's claims of strict and negligent misrepresentation as a matter of law because the damages were barred under the economic loss doctrine.

¶ 10. Following the hearing on the postverdict motions, the trial court issued a written order denying Kain's postverdict motions and granting Bluemound East's motion to dismiss Kain's misrepresentation claims on the grounds that the claims are precluded by the economic loss doctrine.

¶ 11. Kain appeals.

DISCUSSION

1. False Advertising Claim

¶ 12. The trial court dismissed Kain's false advertising claim prior to trial based on its determination that it was time barred pursuant to Wis. Stat. § 100.18. Kain argues that the trial court erroneously determined that the time limits of § 100.18 ran from the date of the alleged false advertising in June 1993, as opposed to the date of Kain's pecuniary loss in April 1997. Whether the trial court properly applied the time provisions of § 100.18 to the facts of this case presents a question of law that we review without deference to the conclusion of the trial court. Tomczak v. Bailey, 218 Wis. 2d 245, 252, 578 N.W.2d 166 (1998).

¶ 13. Wisconsin Stat. § 100.18 governs claims of fraudulent representation in advertising. Relevant to this action, it prohibits an entity, including a corporation, from making any assertion, representation or statement of fact which is untrue, deceptive or misleading in an effort to induce the sale of real estate. Sec. 100.18(1). With respect to the time limits for bringing an action for fraudulent representation, § 100.18(11)(b)3 provides, "No action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action."

¶ 14. The issue is whether Wis. Stat. § 100.18(11)(b)3 is a statute of limitations or a statute of repose. Under a statute of repose, "a cause of action must be commenced within a specified amount of time after the defendant's action which allegedly led to injury, regardless of whether the plaintiff has discovered the injury or wrongdoing." Tomczak, 218 Wis. 2d at 252 (emphasis added). A statute of limitations bars an action not commenced within a specified amount of time after the cause of action "accrues." Id. In a statute of repose, the legislature has already determined when the claim "accrues" — at the time of the defendant's action. Id. at 254.

¶ 15. In Tomczak, the statute, Wis. Stat. § 893.37, barred the bringing of an action against an engineer or land surveyor "more than 6 years after the completion of a survey." Tomczak, 218 Wis. 2d at 248 n.1. The supreme court held that the statute was one of repose. Id. at 252. Except for the subject matter (surveyors) and the time period (six years), the fraudulent advertising in this case mirrors the survey statute in Tomczak. Wisconsin Stat. § 100.18(11)(b)3 bars suit for fraudulent representation brought "more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action." Therefore, the fraudulent representation statute is a statute of repose.

¶ 16. In this case, the alleged unlawful act took place when Bluemound East provided Kain with the representation that the soil would support a building exerting 3000 pounds PSF in June 1993. Therefore, Kain's action was untimely since it was brought more than three years after the alleged fraudulent representation in June 1993.

¶ 17. While Kain does not dispute that the unlawful act occurred during the negotiations for the sale of the property in June 1993, he urges this court to construe the time limitations of Wis. Stat. § 100.18(11)(b)3 as commencing at the time of injury in April 1997. Kain argues that statutes of repose such as that set forth in § 100.18(11)(b)3 are disfavored in Wisconsin and that the legislature could not have intended to protect false advertisers who could hide the falsity of their representations for more than three years. However, the language of § 100.18(11)(b)3 is clear. Kain's cause of action "accrued" at the time of the false representation in June 1993 and not at the time of injury.

¶ 18. Wisconsin courts have traditionally held that time limitation statutes are policy considerations and have been unwilling to change the legislature's decision on such limitation periods. Tomczak, 218 Wis. 2d at 254. Likewise, we decline Kain's invitation to change the legislature's decision as to the time limitations set forth in Wis. Stat. § 100.18(11)(b)3. Kain's remedy is with the legislature, not with the courts.

¶ 19. Because we conclude that Wis. Stat. § 100.18 is a statute of repose and not a statute of limitations, we uphold the trial court's dismissal of Kain's claim of false advertising as time barred.

2. Breach of Warranty Claim

¶ 20. At the close of Kain's case, Bluemound East moved for the dismissal of Kain's breach of warranty claim due to insufficient evidence. The trial court granted Bluemound East's motion, stating, "there is no evidence to show pursuant to the warranty that was given to Mr. Kain that the soils on these premises did not satisfactorily support a minimum of 3,000 pounds per square foot."

¶ 21. We review a trial court's decision to grant a defendant's motion to dismiss for insufficient evidence at the close of plaintiffs case on a de novo basis. Am. Family Mut. Ins. v. Dobrzynski, 88 Wis. 2d 617, 624, 277 N.W.2d 749 (1979). The trial court may grant a motion to dismiss for insufficient evidence at the close of plaintiffs case only if "the court is satisfied that, considering all credible evidence in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such a party." Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 388, 541 N.W.2d 753 (1995) (citation omitted). When ruling on a motion to dismiss, the trial court should consider only the proof that the plaintiff has offered before resting its case. Beacon Bowl, Inc. v. Wis. Elec. Power Co., 176 Wis. 2d 740, 788, 501 N.W.2d 788 (1993). Our review on appeal is the same as that conducted by the trial court. See Weiss, 197 Wis. 2d at 389-90.

¶ 22. "A 'warranty' is an assurance by one party to a contract of the existence of a fact upon which the other party may rely. It is intended to relieve the promisee of any duty to ascertain the fact for himself, and amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue." Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500, 511, 434 N.W.2d 97 (Ct. App. 1988) (citation omitted).

¶ 23. Bluemound East concedes that Johnson provided Kain with a warranty in his correspondence dated July 26, 1993, in which Johnson stated, "Blue-mound East.. . hereby warrants and represents to Mr. Cary N. Kain that the soils on the subject premises will satisfactorily support a minimum of 3,000 pounds per square foot." However, Bluemound contends that the trial court properly dismissed Kain's claim because there was no evidence that the warranty was not true at the time it was made.

¶ 24. We reject Bluemound East's contention that the warranty's application is limited to the time it was made and does not warranty the land subsequent to Kain's constructing a building upon it. The language of the warranty itself looks to the future. It states that the land "will" support a minimum of 3000 pounds PSE We construe the warranty to have a prospective application.

¶ 25. Next, we look to the evidence on this question. Bluemound East's affirmative defense to Kain's breach of warranty claim was that Kain's construction of the building and reconfiguration of the land surface, not the underlying soil layers, caused the building to settle. Bluemound East argues that its expert, William Painter, presented testimony that the cause of the settling was the storm water runoff that was improperly controlled. It also points to testimony that the settling was due to Kain's failure to construct a storm sewer system.

¶ 26. At times, Bluemound East's appellate argument strays into evidence presented after the trial court had dismissed the breach of warranty claim at the close of Kain's case. However, we must bear in mind that our consideration of the evidence on this question is necessarily limited to that presented by Kain in his case-in-chief. Beacon Bowl, 176 Wis. 2d at 788. Viewed in that light, we conclude that Kain presented sufficient credible evidence to resist a motion to dismiss.

¶ 27. Gary Kretchmer, the architect who designed Kain's office building, testified in detail as to the construction of the building and as to the fact that the building exerts less than 3000 pounds PSF. Michael Marlin, the geotechnical engineer and soil engineer who worked on the building, testified that prior to constructing the building in 1993, he dug four "test pits to check the subsurface soil." The test pits located at the corners of the proposed building site were approximately nine feet deep. The soil tested was hard and compact. Later, when the building began to settle, Marlin conducted deeper soil borings, which examined each layer of soil under the building to approximately twenty to thirty feet of depth. His conclusion based on the soil borings was that a "loose layer [between thirteen and twenty-one feet] was consolidating, and this was the reason that the building above it was settling." As for Blue-mound East's theory that water problems caused by Kain's reconfiguration of the land caused the consolidation, Marlin testified that the soil borings nearest the southwest corner of the building did not indicate the presence of groundwater.

¶ 28. Marlin additionally testified regarding a letter he wrote in February 1998 regarding the settling of the building's southwest corner. He stated, "The water encountered in the test pit around the footing [of the building] was perched[,] indicating the upper fill layer is relatively impermeable." Therefore, the runoff water could not really "percolate" to a deeper level and would not be "getting down to the loose layer of fill." He also testified that he stated in his letter, "[b]ased on these observations, we believe that the water trapped around the building foundation is not weakening the dense, hard upper fill layer and thus is not affecting the building settlement" but that "[b]ased on the soil bor-ings, test pit, and settlement records, it is our opinion that the ten-foot thick loose / stiff fill layer below a depth of approximately ten feet is consolidating."

¶ 29. In Marlin's opinion, the fill had not been placed and compacted properly. Had it been, the building would not have settled. Marlin explained, "Soil is typically placed in level lifts of. .. eight to twelve inches, and compacted with, say, a large vibratory roller running over the fill several times compacting it." According to Marlin, if the soil had been compacted properly, even if there was water running through it, the water should not have caused the settling.

¶ 30. Finally, Ellis Mason, the owner of the company that built Kain's office building, testified that his understanding is that the soil borings determined that the soil is not good between the depth of eleven and twenty feet.

¶ 31. Thus, the sum of this evidence at the close of Kain's case-in-chief was the following. Kain was the beneficiary of Bluemound East's warranty that the soils would support "a minimum of 3,000 pounds per square foot." The building constructed for Kain exerted less than 3000 pounds per square foot. The soil borings revealed loose layers of the soils at depths between thirteen to twenty-one feet. This soil was consolidating which caused the building to settle. And, as to Blue-mound East's affirmative defense, water would not cause the building to settle if the soil had been properly compacted.

¶ 32. In order to uphold the trial court's dismissal of Kain's breach of warranty claim for insufficient evidence, we must determine that there is no credible evidence to sustain a finding in Kain's favor. Weiss, 197 Wis. 2d at 388. Based upon our review of the evidence presented by Kain, we cannot make such a determination. We therefore conclude that the trial court erroneously dismissed Kain's breach of warranty claim.

3. Misrepresentation Claims

a. The Cause Questions

¶ 33. Kain brought claims of strict responsibility misrepresentation and negligent representation against Bluemound East. In its special verdict, the jury determined that Bluemound East committed both strict responsibility misrepresentation and negligent misrepresentation. However, the jury's answer as to cause differed on each claim. As to strict misrepresentation, the jury determined that Bluemound East's misrepresentation did not cause Kain's damages. As to negligent misrepresentation, the jury determined that Blue-mound East's misrepresentation did cause Kain's damages. The jury then determined that Kain was 62.5% contributorily negligent.

¶ 34. Kain contends that it was error for the trial court to submit a cause question to the jury on the misrepresentation claims. Kain additionally argues that the jury's response to the cause questions rendered the verdict inconsistent.

¶ 35. In support of his argument that the trial court erroneously submitted a cause question to the jury, Kain correctly notes that neither the standard jury instruction nor the suggested verdict forms contain a question as to cause. See Wis JI — Civil 2400-03. He reasons that the reliance inquiry in a negligent misrepresentation claim is the equivalent of the causation element in a negligence claim. Ramsden v. Farm Credit Servs., 223 Wis. 2d 704, 721, 590 N.W.2d 1 (Ct. App. 1998). Kain argues that the inclusion of the causation questions on the special verdict form was legally unnecessary and confusing to the jury.

¶ 36. A trial court has discretion in framing a special verdict and we will not disturb the trial court's ruling if the material issues of fact in the case are addressed. Maci v. State Farm Fire & Cas. Co., 105 Wis. 2d 710, 719, 314 N.W.2d 914 (Ct. App. 1981). Here, the trial court determined that a question as to cause was necessary.

¶ 37. Bluemound East argues that our holding in D'Huyvetter v. A.O. Smith Harvestore Prods., 164 Wis. 2d 306, 475 N.W.2d 587 (Ct. App. 1991), supports the trial court's ruling. There, the special verdict involved a claim of intentional misrepresentation. Like Kain, the plaintiffs in D'Huyvetter argued that the trial court erred in singling out the causation issue for a separate special verdict question. We upheld the trial court's determination, finding no error in the trial court's submission of a cause question on a claim of misrepresentation. Id. at 335. Kain distinguishes D'Huyvetter on the basis that it involved two defendants who allegedly made misrepresentations whereas here there is only one. Id. at 318. While the distinction Kain notes is correct, he overlooks that in this case there was a sharp dispute between the parties as to what caused the building to settle — the condition of the subsoils or Kain's reconfiguration of the land surface as part of the building construction. Given that factual dispute, we see no erroneous exercise of discretion by the trial court in choosing to put the cause question squarely to the jury.

¶ 38. Alternatively, Kain contends that our decision in D'Huyvetter is wrong. Whether or not he is correct, we are nevertheless bound by it. Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997).

¶ 39. For the foregoing reasons, we conclude that the trial court did not err in submitting a cause question to the jury on the special verdict form.

b. Inconsistent Verdict

¶ 40. Kain contends that the jury's differing responses to the cause questions on the claims of strict responsibility misrepresentation and negligent misrepresentation render the verdict inconsistent. An inconsistent verdict is one in which the jury's answers are "logically repugnant to one another." Fondell v. Lucky Stores, Inc., 85 Wis. 2d 220, 228, 270 N.W.2d 205 (1978).

¶ 41. Here, with respect to Kain's claim of strict responsibility misrepresentation, the jury found Blue-mound East's misrepresentation was not a cause of Kain's damages. However, on Kain's claim of negligent misrepresentation, the jury found that Bluemound East's misrepresentation was a cause of Kain's damages but that Kain was 62.5% contributorily negligent. In making his argument, Kain overlooks that the claims of strict responsibility misrepresentation and negligent misrepresentation impose differing burdens of proof as to liability.

¶ 42. The burden of proof for a claim of negligent misrepresentation carries an ordinary burden of proof which requires the plaintiff to satisfy the jury "to a reasonable certainty by the greater weight of the credible evidence." Wis JI — Civil 200, 2403 (comment). By contrast, the burden of proof for a claim of strict responsibility misrepresentation is the middle burden, which requires the plaintiff to convince, the jury "to a reasonable certainty by evidence that is clear, satisfactory, and convincing." Wis JI — Civil 205, 2402 (comment). The evidence required to meet the middle burden "must be more convincing than merely the greater weight of the credible evidence but less than beyond a reasonable doubt." Wis JI — Civil 205.

¶ 43. In reviewing a jury's verdict, we presume that the jury followed the law. Frayer v. Lovell, 190 Wis. 2d 794, 812, 529 N.W.2d 236 (Ct. App. 1995). Here, we conclude that the jury's differing responses as to whether Bluemound East's misrepresentation was a cause of damage is explained by the differing burdens of proof. Therefore the verdict is not inconsistent.

¶ 44. Because we uphold the jury's verdict rejecting Kain's claims of misrepresentation, we need not address his further arguments that the trial court erroneously dismissed his misrepresentation claim against Johnson in his individual capacity and that the trial court erroneously dismissed his misrepresentation claims based on the economic loss doctrine. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

CONCLUSION

¶ 45. We conclude that the trial court properly-determined that Kain's claim of false advertising was time barred by Wis. Stat. § 100.18(11)(b)3. We further conclude that the trial court did not err in submitting a cause question to the jury on Kain's claims of misrepresentation. Finally, we conclude that Kain presented sufficient credible evidence to resist Bluemound East's motion to dismiss the breach of warranty claim at the close of the case-in-chief. We reverse that portion of the judgment dismissing Kain's claim of breach of warranty and remand for further proceedings. In all other respects, we affirm the judgment.

¶ 46. No costs to either party.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

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

       We also reject Kain's argument that the jury's verdict is a "compromise" because it expressed its percentage breakdown as to comparative negligence down to one-half of one percent. (The jury found that Kain was 62.5% contributorily negligent.) Kain contends that the jury most likely added up each juror's assessment of negligence and divided by twelve. Kain's argument is sheer speculation. In the absence of any other evidence of a compromise verdict, we must reject Kain's argument.


author: ANDERSON, J.

text:
    Estate of John D. Riley, by Joanne Riley as Special Administrator of the Estate of John D. Riley, Plaintiff-Respondent, v. Ford Motor Company, Defendant-Appellant, Frank Boucher Lincoln-Mercury of Waukesha, LLC, Defendant.
    Court of Appeals

      No. 00-2977.

      Submitted on briefs August 3, 2001.

    Decided September 12, 2001.

    2001 WI App 234
    (Also reported in 635 N.W.2d 635.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick L. Wells of Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William S. Pocan of Jastroch & LaBarge, S.C., Waukesha.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petitions to review denied 1-29-02.

   ANDERSON, J.

¶ 1. This is a Lemon Law case. Ford Motor Company (Ford) appeals from a judgment of the trial court holding that Ford violated Wisconsin's Lemon Law with regard to John D. Riley and his 1998 Lincoln Town Car. Because we agree with the trial court that under Wis. Stat. § 218.015 (1997-98) Ford violated the requirement to provide Riley with a refund no later than the thirty-day time limit, we affirm this part of the decision. However, because we disagree with the trial court's inclusion of the "current value of the written lease" in the damages award, we reverse this portion of the decision.

Facts

¶ 2. Riley dealt with Frank Boucher Lincoln-Mercury of Waukesha, LLC (Boucher) in leasing his vehicle. Boucher is an authorized "motor vehicle dealer" and an agent of the "manufacturer" Ford. See Wis. Stat. § 218.015(1)(e), (c). Riley experienced problems with his leased vehicle and, after taking the statutorily required efforts to allow Boucher to bring the vehicle up to satisfactory standards, he demanded a refund from Ford. See § 218.015(2)(a), (b). Riley's demand for a refund was made on Friday, January 29, 1999. Thirty days from the date of Riley's demand fell on Sunday, February 28, 1999. On Monday, March 1, 1999, Ford faxed a letter to Riley's lawyer indicating that a refund had been forwarded to the sales manager of Boucher. Ford argues that if it sent a refund to Boucher by March 1, 1999, it satisfied the time-limit requirements under the Lemon Law. Ford also argues that the provisions for computing time in Wis. Stat. § 990.001(4)(a) and (b) apply to Wisconsin's Lemon Law and make the thirtieth day fall on Monday, March 1, 1999.

¶ 3. Before trial, the parties stipulated that Riley's leased vehicle was a "lemon." Ford filed a motion in limine with a request for a protective order seeking to preclude Riley from proceeding under the theory that Ford failed to provide Riley a refund within thirty days. In Riley's response to Ford's motion in limine, he argued that even if March 1,1999, is the compliance date, Ford did not provide a refund to Riley on or before March 1, 1999. Riley correctly stated that "[i]f the refund was not provided to the consumer within the statutory period, the lemon law has been violated regardless of whatever intentions the manufacturer may or may not have had in the way of compliance."

¶ 4. After a hearing on Ford's motion in limine, the trial court concluded that Ford did not comply with the requirements of Wisconsin's Lemon Law. Based upon the trial court's conclusions and the stipulations of the parties, the only remaining issue for trial was the amount to be paid to Riley by Ford. On July 25 and 26, 2000, a jury trial was held. Following the jury's verdict in his favor, Riley brought a motion for an order for judgment seeking twice the amount of pecuniary loss, attorney's fees and costs pursuant to Wis. Stat. § 218.015(7). Riley also sought damages related to the current value of the written lease. The trial court issued a judgment awarding Riley approximately $100,000, which included the current value of the written lease.

Law

¶ 5. Wisconsin's Lemon Law statute requires that when the manufacturer of a nonconforming vehicle (a lemon) receives an offer from the consumer to transfer title of that vehicle to that manufacturer, that manufacturer shall provide the consumer with a refund or a comparable new motor vehicle no later than thirty days after the consumer's offer. Wis. Stat. § 218.015(2)(c).

¶ 6. Wisconsin's Lemon Law provides in part:

(a) If a new motor vehicle does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the motor vehicle lessor or any of the manufacturer's authorized motor vehicle dealers and makes the motor vehicle available for repair before the expiration of the warranty or one year after first delivery of the motor vehicle to a consumer, whichever is sooner, the nonconformity shall be repaired.
(b) 1. If after a reasonable attempt to repair the nonconformity is not repaired. . . .
3. a. [w]ith respect to a consumer [who leases a motor vehicle from a motor vehicle lessor under a written lease] [the manufacturer shall] accept return of the motor vehicle, refund to the motor vehicle lessor and to any holder of a perfected security interest in the motor vehicle, as their interest may appear, the current value of the written lease and refund to the consumer the amount the consumer paid under the written lease plus any sales tax and collateral costs, less a reasonable allowance for use.
(c) To receive a comparable new motor vehicle or a refund due under par. (b) 1. or 2., a consumer described under sub. (l)(b) 1., 2. or 3. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motor vehicle or refund. When the manufacturer provides the new motor vehicle or refund, the consumer shall return the motor vehicle having the nonconformity to the manufacturer and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer.

Wis. Stat. § 218.015(2).

Analysis

¶ 7. This case involves statutory interpretation, a question of law requiring de novo review. Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996). Ford argues two issues on appeal. First, Ford contends that the provisions for computing time found in Wis. Stat. § 990.001(4)(a) and (b) apply to Wisconsin's Lemon Law and make the thirtieth day fall on Monday, March 1, 1999. Second, Ford contends that pecuniary loss when a lemon is a leased vehicle is equal to the amount paid under the lease contract.

¶ 8. We need not reach the merits of Ford's first issue because we make our decision based upon two undisputed facts: Ford did not provide to the consumer (Riley) his refund on Sunday, February 28,1999 (Riley's thirtieth day), and Ford did not provide to the consumer (Riley) his refund on Monday, March 1, 1999 (Ford's thirtieth day). First, sending a fax to the consumer's attorney is not the equivalent of a timely delivery of a refund check to the consumer. Second, delivery of a refund check to a dealership's sales manager is not the equivalent of a timely delivery of a refund check to the consumer.

¶ 9. The law requires that the manufacturer provide a refund to the consumer or a comparable new motor vehicle to the consumer no later than thirty days after the consumer's offer. Wis. Stat. § 218.015(2)(c). Thus, Ford did not provide Riley with his refund in a timely manner. This is so whether we determine that the thirtieth day fell on February 28, 1999, or March 1, 1999. There is no evidence that Ford provided a refund to Riley on either day. In short, we do not reach the construction of Wis. Stat. § 990.001(4)(a) and (b), and § 218.015, because even if we were to hold that § 990.001(4)(a) and (b) was applicable and that Ford did get an extra day, there is no evidence that Ford complied with the Lemon Law.

¶ 10. With regard to Ford's dispute with the trial court's calculation of Riley's pecuniary loss, we disagree with the trial court and hold that pecuniary loss when a lemon is a leased vehicle does not include the current value of the written lease. Wisconsin Stat. § 218.015(2)(b)3.a and b do not apply when a Lemon Law action is filed in the trial court. Instead, these provisions apply only when the manufacturer complies with the Lemon Law. When a Lemon Law action is filed in the trial court, the "pecuniary loss" provisions of § 218.015(7) apply.

¶ 11. In effect, Wisconsin's Lemon Law provides two routes for the consumer if attempts to repair a nonconforming vehicle are unsuccessful. First, the consumer can demand either a comparable new vehicle or a refund. Wis. Stat. § 218.015(2)(b)2.a, b. If the manufacturer agrees to a refund and the vehicle is a leased vehicle, the manufacturer must:

[A]ccept return of the motor vehicle, refund to the motor vehicle lessor and to any holder of a perfected security interest in the motor vehicle, as their interest may appear, the current value of the written lease and refund to the consumer the amount the consumer paid under the written lease plus any sales tax and collateral costs, less a reasonable allowance for use.
[T]he current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the motor vehicle dealer's early termination costs and the value of the motor vehicle at the lease expiration date if the lease sets forth that value, less the motor vehicle lessor's early termination savings.

Sec. 218.015(2)(b)3.a, b.

¶ 12. Second, as an alternative to seeking a comparable new vehicle or a refund, the consumer can bring an action in court. Wis. Stat. § 218.015(7). Section 218.015(7) provides:

In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this section. The court shall award a consumer who prevails in such an action twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief the court determines appropriate.

When the consumer brings an action in court, he or she is limited to the remedies under § 218.015(7). This section does not mention the current value of the written lease. The consumer's pecuniary loss does not include the termination value of the vehicle because the consumer is not out that amount of money. The "lessor" (and/or holder) owns a leased vehicle and, if it is a lemon, the lessor owns a lemon. When the consumer chooses a refund, he or she must return the vehicle to the manufacturer; therefore, the lessor does not have the vehicle and must be compensated for the value of the vehicle.

¶ 13. The trial court erred when it awarded Riley $23,221.95, which the court found to be the current value of the written lease. This holding tracks our reasoning in Church v. Chrysler Corp., 221 Wis. 2d 460, 585 N.W.2d 685 (Ct. App. 1998):

The purpose of the Lemon Law is to return the purchaser of a lemon to the position he or she was in at the time the vehicle was purchased. The statute [Wis. Stat. § 218.015(7)] allows the consumer to recover twice the amount of the "pecuniary loss" in addition to other expenses. When the manufacturer violates the law by wrongfully refusing to honor this refund, the consumer suffers pecuniary loss in the amount of the refund he or she should have received. A consumer's pecuniary loss includes that portion of the purchase price he or she has actually paid. . . . [T]he goal of the Lemon Law is not served by refunding more than the amount which the consumer actually paid for the vehicle.

Church, 221 Wis. 2d at 470-71 (citations omitted).

¶ 14. Ford violated Wisconsin's Lemon Law in not providing to Riley his refund no later than thirty days after he made his demand. However, Ford is not obligated to pay Riley the $23,221.95 portion of the award because Riley is not entitled to the current value of the written lease.

¶ 15. Costs are denied to all parties.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

       All references to the Wisconsin Statutes are to the 1997-98 version. This section has been renumbered in the 1999-2000 version as Wis. Stat. § 218.0171.

       Whether Boucher's sales manager even received Riley's refund check on March 1, 1999, as Ford contends, is not clear from our review of the record; however, under our analysis, we need not clarify this issue.

       Again, there appears to be no evidence in the record that a refund check was in fact at Boucher's on or before March 1, 1999; however, even if this evidence existed, it would not factor into our decision for the reasons we discuss in our analysis.

       Wisconsin Stat. § 990.001(4) deals with how time is to be computed when construing a statute. This section provides in relevant part that:
      (a) The time within which an act is to be done or proceeding had or taken shall be computed by excluding the first day and including the last; and when any such time is expressed in hours the whole of Sunday and of any legal holiday, from midnight to midnight, shall be excluded.
      (b) If the last day within which an act is to be done or proceeding had or taken falls on a Sunday or legal holiday the act may be done or the proceeding had or taken on the next secular day.

       Wisconsin Stat. § 218.015(2)(b)3.b defines "the current value of the written lease" as:
      the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the motor vehicle dealer's early termination costs and the value of the motor vehicle at the lease expiration date if the lease sets forth that value, less the motor vehicle lessor's early termination savings.


author: SNYDER, J.

text:
    Mary Anne Hedrich, Plaintiff-Appellant, v. Board of Regents of the University of Wisconsin System, Defendant-Respondent.

    Court of Appeals

      No. 00-2002.

      Submitted on briefs August 3, 2001.

    Decided September 19, 2001.

    2001 WI App 228
    (Also reported in 635 N.W.2d 650.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey P. Sweetland and Thomas Nelson of Shneidman, Myers, Dowling, Blu-menfield, Ehlke, Hawks & Domer of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Richard Briles Moriarty, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 12-17-01.

   SNYDER, J.

¶ 1. Mary Anne Hedrich appeals from a circuit court order granting the Board of Regents of the University of Wisconsin's (Board) motion to dismiss her petition for Wis. Stat. ch. 227 (1999-2000) review of the denial of her tenure application. Hedrich argues that the circuit court erred when it held that her petition was not filed in a timely manner pursuant to Wis. Stat. § 227.53. We agree. We reverse the order of the circuit court and remand this matter for proceedings consistent with this opinion.

FACTS

¶ 2. For the purposes of this appeal, we assume the factual allegations in the amended petition to be true. In 1995, Hedrich was a non-tenured assistant professor in the Department of Health, Physical Education, Recreation and Coaching (Department) at the University of Wisconsin-Whitewater (Whitewater). On October 16, 1995, Hedrich was informed that the Department would consider whether to recommend her for tenure on December 4, 1995; the areas to be evaluated included "research," which is defined by Whitewater's Faculty Personnel Rules (Rules) as works already submitted for peer review or "in the process of completion, provided they are so far advanced as to be capable of being evaluated."

¶ 3. In support of her tenure candidacy, Hedrich provided the Department with manuscripts of four articles she had submitted for publication to national academic journals but not yet published. On December 18, 1995, tenured members of the Department recommended against granting Hedrich tenure, rating her research below average and her teaching and service as above average. Hedrich was notified of the Department's decision on January 16, 1996.

¶ 4. Two days later, on January 18, 1996, Hedrich asked for reasons for the decision. She was told it was because of her lack of published articles in any peer review journals. University officials acknowledged Hedrich's four submitted articles, but maintained that none had yet been accepted for publication.

¶ 5. The Rules allow a faculty member whose department has recommended against tenure several opportunities for relief. After delivery of the notice of nonrenewal, the faculty member may request the reasons for the anti-tenure recommendation. After reviewing the reasons provided, the faculty member may request reconsideration of the decision. If reconsideration is denied, the department must deliver to the faculty member a copy of the decision report, a copy of the record of the first review and the record of the reconsideration. After receiving this report, the faculty member may appeal the department's decision to a university review committee of the Faculty Senate.

¶ 6. After receiving the reasons for the original negative recommendation, Hedrich asked the Department to reconsider its decision. The Department affirmed its previous decision on February 21, 1996. However, Hedrich was not provided with a copy of the record of the first review or the record of reconsideration.

¶ 7. Hedrich then filed a notice with the Department that she was appealing its nonrecommendation for tenure. The Faculty Senate's Grievance and Hearing Committee appointed an appeals panel (Panel) to consider Hedrich's appeal. The Panel requested the record of review and other documents, but apparently the Department did not provide the Panel with all of the documents; specifically absent were the four scholarly manuscripts under consideration with peer review journals. In response to the Panel's investigation, the Department chair acknowledged that Hedrich's four manuscripts had been available at the tenure reconsideration hearing.

¶ 8. On June 14, 1996, the Panel issued a report indicating that Hedrich's manuscripts should have been considered in the Department's decision-making process and that the Department's decision to recommend against tenure was inconsistent with university policy. The Panel also decided that any referral back to the Department "would serve no useful purpose" and retained jurisdiction of the appeal pending its final resolution.

¶ 9. On October 25, 1996, the Panel issued a supplemental report, stating that the Department's evaluation of Hedrich was inconsistent with the performance criteria adopted by the Department and stated in the University Handbook because it failed to consider her four manuscripts. The Panel determined that the Department's decision to deny tenure constituted "improper consideration," contrary to Wis. Admin. Code § UWS 3.08(1)(c)2. Again, the Panel retained jurisdiction of the appeal pending final resolution.

¶ 10. Hedrich then asked that the Faculty Senate Executive Committee (Executive Committee) empanel a credential review committee, pursuant to Wis. Stat. § 36.13(2)(b)3, to conduct an independent evaluation of her qualifications. The Executive Committee would review the record of both the Department's original decision and reconsideration decision. However, the Department forwarded only a portion of the record and did not include any of the four manuscripts Hedrich had provided, asserting that it had lost all four of the manuscripts.

¶ 11. The chairman of the Executive Committee asked Hedrich to submit a copy of everything she had provided the Department in support of her initial review and reconsideration. Hedrich had not retained copies of the manuscripts submitted to the Department and instead submitted updated and revised drafts of the same manuscripts. The chairman of the Executive Committee found these manuscripts to be unacceptable substitutes for the originals. A credential review committee was appointed on October 5, 1997, composed of three persons from Whitewater (including the credential review committee chair) and two persons from the University of Wisconsin-LaCrosse. The credential review committee was required to render a decision within thirty days, answering the following questions:

Do the academic qualifications and credentials satisfy all relevant credential requirements at UW-Whitewater?
Does the appellant's professional performance satisfy the performance standards for tenure as defined by UW-Whitewater Faculty Personnel Rules?

The credential review committee was informed about the four lost manuscripts and the revised versions of them, but was told that "since these are not the same documents that the department had when making its decision, it was inappropriate for the Faculty Senate Executive Committee to forward them to your committee."

¶ 12. In the meantime, because the Department had recommended nonrenewal during the 1995-96 academic year, 1996-97 was Hedrich's final year. Hedrich's employment at Whitewater had ended in the summer of 1997, prior to the convening of the credential review committee.

¶ 13. Hedrich was not allowed to provide the credential review committee with copies of her manuscripts. The credential review committee never met as a collective body; instead, the credential review committee chair consulted with the two other Whitewater members on October 20, 1997. One supported granting tenure, while the other did not. The credential review committee chair then consulted the LaCrosse members individually via telephone. Both LaCrosse members voted to deny tenure. On November 5, 1997, the credential review committee chair reported that the credential review committee had voted 4-1 against granting tenure.

¶ 14. On April 7, 1998, Hedrich filed a petition in Walworth County Circuit Court asking the court to review Whitewater's handling of her tenure application. Specifically, she sought review of the credential review committee's November 5, 1997 recommendation against tenure. In her original petition, Hedrich sought judicial review pursuant to Wis. Stat. § 227.52 or, in the alternative, a writ of certiorari. Hedrich filed an amended petition for Wis. Stat. ch. 227 review on July 24, 1998.

¶ 15. In her amended petition, Hedrich abandoned her claim for certiorari relief and only sought judicial review under Wis. Stat. § 227.52. She asked for a determination that the Department's failure to keep her four manuscripts in her file, combined with the credential review committee's refusal to accept revised copies of these manuscripts in lieu of the earlier lost manuscripts, constituted a material error in procedure and a failure to follow prescribed procedures. In lieu of an answer, the Board filed a motion to dismiss alleging lack of subject matter jurisdiction and for lack of a reviewable final agency decision; the Board alleged that Hedrich had failed to file her petition in a timely manner. On January 7, 1999, the circuit court denied the Board's motion, concluding that the credential review committee's decision was a final agency decision.

¶ 16. The Board then sought reconsideration of the denial of its motion, realleging untimeliness. On June 8, 2000, the circuit court dismissed Hedrich's petition for lack of subject matter jurisdiction, holding that Hedrich's petition was not filed within thirty days as required by Wis. Stat. § 227.53(1)(a)2. Hedrich appeals the order dismissing her petition.

DISCUSSION

¶ 17. The facts relevant to the interpretation and application of a statute are those alleged in Hedrich's pleading which, for purposes of deciding a motion to dismiss, we take as true. Varda v. Gen. Motors Corp., 2001 WI App 89, ¶ 7, 242 Wis. 2d 756, 626 N.W.2d 346. Whether the facts alleged in the petition state a claim for relief presents a question of law subject to our de novo review. Id. In addition, the question before us, whether Wis. Stat. § 227.53(1)(a)2 applies to Hedrich's petition, is largely one of statutory interpretation and again subject to de novo review. Collins v. Policano, 231 Wis. 2d 420, 426, 605 N.W.2d 260 (Ct. App. 1999).

¶ 18. Hedrich argues that because she has not petitioned from a decision in a contested case, the thirty-day deadline of Wis. Stat. § 227.53(1)(a)2 should not apply; instead, she argues, her petition was subject to a six-month statute of limitations period. The Board argues that any petition for Wis. Stat. ch. 227 review must be filed with thirty days of the decision denying Hedrich tenure. We agree with Hedrich.

¶ 19. Here, a credential review committee convened pursuant to Wis. Stat. § 36.13(2)(b)3 and voted 4-1 against granting Hedrich tenure. Because this case deals with a denial of tenure, Collins comes very close to directly governing this case and provides the proper framework for an analysis of Hedrich's claim.

¶ 20. Generally, a state agency's administrative decision which adversely affects the substantial interests of any person is subject to judicial review under Wis. Stat. ch. 227. Wis. Stat. § 227.52; Collins, 231 Wis. 2d at 427. To obtain judicial review of an agency decision, an aggrieved individual must serve a petition for review upon the agency and file it with the circuit court. Wis. Stat. § 227.53(1)(a)2; Collins, 231 Wis. 2d at 427. Two broad types of administrative decisions are reviewable under ch. 227 — those that arise out of "contested cases" and those that do not. Collins, 231 Wis. 2d at 427.

¶ 21. A "contested case" is an agency proceeding in which the assertion by a party of any substantial interest is denied or challenged by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order. Wis. Stat. § 227.01(3); Collins, 231 Wis. 2d at 427. Accordingly, a contested case proceeding typically involves two or more clearly identified adverse parties, in addition to some type of fact-finding by an agency decision maker. Collins, 231 Wis. 2d at 427. Examples include rate making, the granting or denying of a license, and an agency's imposition of sanctions on a regulated entity. Sec. 227.01(3)(a), (b); Collins, 231 Wis. 2d at 427. The denial of tenure by a university does not entitle the dissatisfied faculty member to a contested case proceeding. Collins, 231 Wis. 2d at 428.

¶ 22. The circuit court dismissed Hedrich's petition for review of the denial of tenure as untimely pursuant to Wis. Stat. § 227.53(1)(a)2. Section 227.53(1) addresses parties and proceedings for review and states, in relevant part:

Except as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.52 shall be entitled to judicial review of the decision as provided in this chapter and subject to ... all of the following procedural requirements:
(a) . ...
2. Unless a rehearing is requested under s. 227.49, petitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties under s. 227.48. If a rehearing is requested under s. 227.49, any party desiring judicial review shall serve and file a petition for review within 30 days after service of the order finally disposing of the application for rehearing, or within 30 days after the .final disposition by operation of law of any such application for rehearing. The 30-day period for serving and filing a petition under this paragraph commences on the day after personal service or mailing of the decision by the agency.

Thus, under § 227.53(1)(a)2, a petition for review must be filed within thirty days after service pursuant to Wis. Stat. § 227.48.

¶ 23. We have previously held that Wis. Stat. § 227.48 applies only to contested cases. Collins, 231 Wis. 2d at 434. Because a denial of tenure does not derive from a contested case proceeding, id. at 435, § 227.48 is inapplicable.

¶ 24. Hedrich argues that if the denial of tenure does not constitute a contested case and Wis. Stat. § 227.48(2) does not apply to her petition, there is no agency decision under § 227.48 and it logically follows that the thirty-day deadline of Wis. Stat. § 227.53(1)(a)2 does not apply. We agree.

¶ 25. Under Wis. Stat. § 227.53(1)(a)2, the thirty-day limitation period is triggered only by Wis. Stat. § 227.48 service of the decision upon the parties. But § 227.48(2) does not apply to the case at hand. No service upon the parties of the agency decision ever took place, nor was it required to take place. Consequently, nothing occurred to trigger the thirty-day deadline of § 227.53(1)(a)2. By virtue of the reference to § 227.48, the thirty-day deadline of § 227.53(1)(a)2 is inapplicable to noncontested cases. Wisconsin Stat. ch. 227 fails to provide another limitation period for non-contested cases. As we stated in Collins, we can think of no reason why the six-month default limitation period for review of administrative decisions by certiorari should not also be the default limitation period within which a petition for review under ch. 227 must be filed. Collins, 231 Wis. 2d at 437. Because there is no statutory limitation period for noncontested cases, we hold that a six-month default limitation period is appropriate.

¶ 26. On November 5, 1997, the credential review committee reported that it had voted 4-1 against granting Hedrich tenure. A six-month period of limitation would thus have expired on May 5, 1998. Hedrich filed her petition for review of the credential review committee decision on April 7, 1998, within the default six-month limitation period. Her petition was timely filed.

¶ 27. The Board also argues that Hedrich is precluded from relitigating the denial of tenure issue because of the disposition in previous litigation. We disagree.

¶ 28. Previously, Hedrich had filed a complaint with the Personnel Commission of the State of Wisconsin alleging that the decision to deny her tenure was improperly based upon her age, sex and sexual orientation. The Personnel Commission determined that He-drich knew no later than May 24,1997, that her request for tenure had been denied. The Board argues that Hedrich cannot now relitigate this issue and assert that she was denied tenure on November 5, 1997, by the credential review committee. The Board mischaracter-izes the issue in both this action and the action before the Personnel Commission.

¶ 29. Hedrich had filed a complaint with the Personnel Commission alleging discrimination in the terms and conditions of her employment and in the denial of her request for tenure. Hedrich's first appeal focused on this complaint of age, sex and sexual orientation discrimination under Wisconsin's Fair Employment Act.

¶ 30. The action before us now is a Wis. Stat. ch. 227 proceeding for judicial review of the November 5, 1997 decision of the credential review committee. While the Personnel Commission is empowered to receive, process and investigate complaints of discrimination in a state agency's workforce, Wis. Stat. § 230.45(1)(b), a credential review committee is authorized to review the negative recommendation of an academic department to determine if the recommendation was based upon impermissible factors. Wis. Stat. § 36.13(2)(b)2. These are two distinct proceedings with different objectives and different procedures. The issue here is whether the credential review committee acted in accordance with § 36.13(2)(b)3, an issue that was not addressed in Hedrich's previous appeal. Hedrich is not relitigating an issue that was previously addressed by the Personnel Commission.

CONCLUSION

¶ 31. We agree with Hedrich that her petition for Wis. Stat. ch. 227 review of her noncontested case proceeding was filed in a timely manner. In addition, we agree that the propriety of the credential review committee's procedures and decision has not been addressed in previous litigation. We therefore reverse the order of the circuit court and remand this matter for proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded.

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

       Neither party has provided in the briefs on appeal acceptable and consistently accurate citations to the record to corroborate the facts set out in those briefs. An appellate court is improperly burdened where briefs fail to properly and accurately cite to the record. See Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). We therefore hold the parties to those facts undisputed in their briefs. The parties will not be heard on reconsideration to challenge facts that this court properly gleaned from briefs without accurate citation to the pagination contained in the record.

       Wisconsin Stat. § 227.48 states:
      (1) Every decision when made, signed and filed, shall be served forthwith by personal delivery or mailing of a copy to each party to the proceedings or to the party's attorney of record.
      (2) Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to he named as respondent. No time period specified under s. 227.49(1) for filing a petition for rehearing, under s. 227.53(1)(a) for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection.

       The Board also relies on Kammes v. Mining Investment & Local Impact Fund Board, 115 Wis. 2d 144, 340 N.W.2d 206 (Ct. App. 1983), in support of its arguments. This reliance on Kammes is misplaced. In Kammes, the citizen respondents petitioned the circuit court for review within thirty days after the board had denied a motion for reconsideration. Id. at 149. The board argued that the petition was untimely under the twenty-day requirement of then Wis. Stat. § 227.12. Kammes, 115 Wis. 2d at 149. We held that the twenty-day deadline did not apply because the administrative proceeding was not a contested case hearing, and thus the petition was timely under the thirty-day provision of then Wis. Stat. § 227.16(1)(a). Kammes, 115 Wis. 2d at 149-50. Here, the Board relies on this statement in support of its argument for a thirty-day deadline. However, our holding in Kammes was not provided in response to any challenge to the thirty-day deadline/In sum, in Kammes, no one disputed the application of the thirty-day deadline. Kammes does not apply to the situation at hand.

        Hedrich v. Pers. Comm'n of Wis., No. 00-0305, unpublished slip op. (WI App Sept. 13, 2000).