text:
    Gary J. White, Plaintiff-Appellant, v. Labor and Industry Review Commission, Olympic Wall Systems, Inc. and Transportation Insurance Co., Defendants-Respondents.
    Court of Appeals

      No. 00-0855.

      Submitted on briefs August 23, 2000.

    Decided October 18, 2000.

    2000 WI App 244
    (Also reported in 620 N.W.2d 442.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Thomas C. Wilkoski of Law Offices of Lucas & Wilkoski of West Allis.
    On behalf of the defendants-respondents, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen M. Sobota, assistant attorney general.
    Before Brown, P. J., Nettesheim and Anderson, JJ.
   NETTESHEIM, J.

¶ 1. The principal issue in this worker's compensation case is whether the first clause of WiS. Stat. § 102.01(2)(g)2 (1997-98) relieves an employee of the burden to prove that an occupational disease stemmed from the employment with the employer against whom the claim is made. The Labor and Industry Review Commission (LIRC) determined that the statute required the claimant, Gary J. White, to establish such linkage between his occupational back disease and his employment with Olympic Wall Systems, Inc. (Olympic). LIRC further held that the evidence submitted by White did not satisfy this burden.

¶ 2. White's primary argument is that LIRC misapplied WiS. Stat. § 102.01(2)(g)2 which sets out how the time, occurrence or date of an injury is determined. White contends that since he was still employed by Olympic, he was required under the first scenario of this statute to prove only that he had an occupational disease and the date of his disability. He argues that LIRC erred by applying the second scenario of the statute which fixes the date of disability at "the last day of work for the last employer whose employment caused disability." Id. Alternatively, White argues that even if LIRC correctly applied the statute, he met his burden of proof to show that his employment at Olympic contributed to his disability based on a medical report submitted by his treating physician.

¶ 3. We reject White's argument that he was not required to establish a connection between his disability and his employment with Olympic under the first scenario of the statute. We further uphold LIRC's conclusion that the medical report offered by White failed to establish such a connection. Consequently, we affirm the judgment of the circuit court.

FACTS

¶ 4. The underlying facts are undisputed. White is a drywaller by trade whose work experience dates back to 1966. Beginning in 1982, White worked exclusively as a drywaller. During this time, White worked for many different employers, receiving his work assignments through his union. At the hearing before the administrative law judge (ALJ), White testified that depending upon the type of job, he would be working with sheets of drywall that weighed anywhere from 80 to more than 100 pounds. According to White, this heavy work contributed to recurring back problems.

¶ 5. White testified that his history of back problems began in the late 1960's. While he worked as a drywaller, he would experience flare-ups in his back about twice a year that would require him to miss one or two weeks of work each time. The only documented incident involving White's back was an October 1991 injury that occurred while he was working for another company. On that occasion, White aggravated his back while carrying sheets of drywall and he was unable to work for two months. He was treated with medication and received physical therapy. As a result, White received temporary total disability worker's compensation.

¶ 6. White was employed by Olympic for a total of thirty weeks during 1994 and 1995. His compensation claim against Olympic initially arose out of an unrelated matter — a shoulder injury he suffered on the job on August 17,1995. He was treated conservatively for this injury with medication and therapy and was placed under lifting restrictions. During the fall of 1995, White tried, but was unable, to return to normal duty with Olympic. White's last day of work for Olympic was November 4, 1995. White was awarded worker's compensation benefits based on a three percent loss of use of his shoulder.

¶ 7. White returned to his treating physician on January 15, 1996, and reported that his shoulder was feeling .much better. He asked to be released to full duty because the. lifting restrictions prevented him from returning to his normal drywalling work. At that time, White's physician reported that White had full range of motion and good strength in his shoulder. As a result, White was cleared to return to normal duty on January 22, 1996. White, however, never resumed working for Olympic.

¶ 8. Almost a year later, on January 9, 1997, White had his shoulder examined by Dr. Harvey Kohn. Based on this examination, Kohn estimated White's shoulder disability at twenty percent. As a result, White sought additional benefits for his shoulder disability. Later, White modified his application to include the claim at issue in this case — an alleged occupational back disease. The application requested temporary total disability from December 25, 1995, to July 29, 1997, and an eight percent permanent partial disability for his back. White's claim for his back condition was based on a further examination by Dr. Stephen Delahunt conducted on April 10, 1997.

¶ 9. Following a hearing, the ALJ issued a written decision granting White's claim for additional benefits related to his shoulder injury. In addition, the ALJ rejected White's occupational back disease claim based on White's failure to maintain his burden of proof. Specifically, the ALJ noted that White had a history of back problems that went back many years and that Delahunt's report "does not give the opinion that the employment at [Olympic] changed or affected [White's] back problem."

¶ 10. White appealed the ALJ's decision regarding his occupational back disease claim to LIRC. LIRC upheld the ALJ's decision and adopted his findings and order as its own. In addition, by a memorandum opinion, LIRC cited the failure of Delahunt's report to opine that White's employment with Olympic "constituted a materially contributory causative factor in the onset or progression of the alleged occupational back disease."

¶ 11. White followed with an appeal of LIRC's decision to the circuit court. After reviewing the record and briefs submitted by the parties, the court issued an order affirming LIRC's decision. The court agreed with LIRC's reading of WlS. Stat. § 102.01(2)(g)2 that White had the burden of proving through medical evidence that his employment with Olympic contributed to his occupational back disease. In addition, the court upheld the LIRC determination that Delahunt's report failed to satisfy this burden. White further appeals to this court.

STANDARD OF REVIEW

¶ 12. On appeal, we review the decision of LIRC rather than the decision of the circuit court. See Stafford Trucking, Inc. v. DILHR, 102 Wis. 2d 256, 260, 306 N.W.2d 79 (Ct. App. 1981). Our role is not to weigh the evidence or to determine the credibility of the witnesses, and as such, we will uphold LIRC's findings of fact so long as they are supported by credible and substantial evidence in the record. See Langhus v. LIRC, 206 Wis. 2d 494, 501, 557 N.W.2d 450 (Ct. App. 1996); Wis. Stat. § 102.23(6). In the case before us, the facts are not in dispute.

¶ 13. After the facts are established, we turn to their application to the statute, which is a question of law. See Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773 (1989). Depending on the level of expertise an agency has acquired in the area in question, we may defer to its legal determination. See Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 760-64, 569 N.W.2d 726 (Ct. App. 1997). Our supreme court has identified three levels of deference to agency decisions: great weight deference, due weight deference and de novo review. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57 (1996). Which level is appropriate "depends on the comparative institutional capabilities and qualifications of the court and the administrative agency." Id. (citation omitted). Due weight deference is appropriate "when the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court." Id. at 286.

¶ 14. In this case, both parties agree that due weight deference is appropriate here. We will accept that agreement for purposes of this case. Thus, we will sustain LIRC's interpretation of the statutes if it is reasonable — even if another interpretation is equally reasonable — but will overrule it if another interpretation is more reasonable. See Barron Elec. Coop., 212 Wis. 2d at 762-63.

DISCUSSION

¶ 15. White's argument is premised upon WlS. Stat. § 102.01(2)(g), which reads in relevant part:

(g) Except as provided in s. 102.555 . . . "time of injury", "occurrence of injury", or "date of injury" means:
2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability.

¶ 16. White observes that in North River Insurance Co. v. Manpower Temporary Services, 212 Wis. 2d 63, 568 N.W.2d 15 (Ct. App. 1997), this court stated that Wis. Stat. § 102.01(2)(g)2 envisions "two scenarios for measuring the 'time of injury' for an occupational disease: (1) the date of disability; or (2) if the date of disability occurs after the cessation of all employment that contributed to the disability, the date when the employee last worked for the employer who caused the disability." North River, 212 Wis. 2d at 71. Regarding the second scenario, we observed:

[T]his scenario envisions that the employee is no longer engaged in the employment which contributed to the disability. While this language does not require that the employee must no longer be employed, it does require that the employee is no longer engaged in that contributing employment. Second, if that condition exists, then the employer which caused the disability is the responsible party and the last day worked for that employer is the date of disability.

Id. (footnote omitted).

¶ 17. White says that LIRC erroneously analyzed this case under the second scenario of Wis. Stat. § 102.01(2)(g)2 because his employment with Olympic had not ceased. Thus, he reasons that LIRC should not have inquired as to "the last employer whose employment caused disability" under this portion of the statute. Instead, White says that this case falls under the first scenario of the statute. And since that scenario speaks only of "disease" and "the date of disability," White argues that he was not required to show any connection between his disability and his employment with Olympic.

¶ 18. Implicit in White's argument is his assumption that Wis. Stat. § 102.01(2)(g)2 represents a comprehensive statement as to a claimant's burden of proof. We reject that assumption. The statute is entitled "Definitions" and it sets out the meanings of various terms that appear thereafter in the worker's compensation laws. As such, the statute does not purport to globally recite the elements of a worker's compensation claim or the corresponding burden of proof. Rather, the statute simply sets out a mechanism for fixing the time, occurrence or date of an injury for purposes of identifying the proper employer against whom a claim may be made.

¶ 19. That was the very matter at issue in North River where the former employer and the most recent employer contended that the other was responsible for the employee's occupational disease. See North River, 212 Wis. 2d at 65. Speaking to the second scenario of Wis. Stat. § 102.01(2)(g)2, we concluded that the employee's disability did not occur "after the cessation of all employment that contributed to the disability." North River, 212 Wis. 2d at 72. In light of that, we further said, "This is a requirement which must be satisfied before we look to whether the employer on the last day of work caused the disability." Id. From this language, White extrapolates that we were saying just the opposite — that causation need not be proven — under the first scenario of the statute. As further support, White notes that the first scenario language of the statute speaks only of "disease" and "date of disability" and not of employment which contributed to or caused the disability.

¶ 20. We disagree with White's approach for two reasons. First, North River itself implicitly rejects it. Having determined that the second scenario of Wis. Stat. § 102.01(2)(g)2 did not apply because the disability did not occur "after the cessation of all employment that contributed to the disability," North River, 212 Wis. 2d at 72, we nonetheless went on to assess whether the evidence supported the LIRC determination that the employee's latest employment was a substantial factor contributing to the disability. See id. at 73. If, as White contends, such linkage between the disability and the employment was not required, we would not have conducted that inquiry.

¶ 21. Second, and more importantly, White's argument runs counter to some fundamental notions about worker's compensation law. We start with the burden of proof:

It is an elementary principle of law that the applicant has the burden of proof in a workmen's compensation case, and if the evidence before the Industrial Commission is sufficient to raise in the mind of the commission a legitimate doubt as to the existence of facts necessary and essential to establish a claim for compensation, it becomes the duty of the commission to deny the application on the ground that the claimant did not sustain his [or her] burden of proof.

Bumpas v. DILHR, 95 Wis. 2d 334, 342-43, 290 N.W.2d 504 (1980) (citation omitted). See also Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994).

¶ 22. In determining the elements of a viable worker's compensation claim to which this burden applies, we look to Wis. Stat. § 102.03, entitled "Conditions of liability." Subsection (1) provides for employer liability for worker's compensation benefits:

(a) Where the employe sustains an injury.
(b) Where, at the time of the injury, both the employer and employe are subject to the provisions of this chapter.
(c) 1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his or her employment.
(e) Where the accident or disease causing injury arises out of the employe's employment. (Emphasis added.)

¶ 23. White would have us read this causation element out of worker's compensation law where the claim is for an occupational disease under the first scenario envisioned by Wis. Stat. § 102.01(2)(g)2. We see no basis for such a drastic departure from established law. Again, the statute merely prescribes a mechanism for identifying the responsible employer. It does not abrogate the condition of liability set out in Wis. Stat. § 102.03(l)(e) that a claimant must prove that the accident or disease arose out of that employment.

¶ 24. That brings us to White's alternative argument that even if he was required to prove the linkage between his occupational disease and his employment with Olympic, he has satisfied that burden. Here, the medical report of Delahunt is crucial because it represents the only evidence proffered by White in support of his claim that his employment with Olympic contributed to his back disease. In his report, Delahunt recited White's medical history and his observations from his examination of White. Delahunt concluded that White has "advanced degeneration of the L5-S1 interverte-bral disc" and that "[d]ue to the intractability and severity of his symptoms" surgery would be appropriate. This portion of the report clearly establishes White's occupational back disease, and LIRC does not dispute this point.

¶ 25. The portion of Delahunt's report that purports to establish the causal link between White's occupational back disease and his employment with Olympic reads as follows:

His current back disability appears to be related to his long work exposure as a drywaller. The symp-tomatology initially did appear while he was at work. It is my opinion that because of the prolonged exposure to the heavy work of a drywaller that he has this current low báck disability.

¶ 26. White argues that these statements satisfied his causation burden because he had worked for Olympic for at least eight months prior to his last day of employment. He reasons that "[t]his eight months of employment with Olympic had to contribute to [his] disease." (Emphasis added.) But that is not what the report says; instead, that is White's interpretation of the report. LIRC held that Delahunt's report is deficient because it does not specifically tie White's occupational back disease to his employment with Olympic. Or, at best, it is ambiguous on this question. We agree. As we have noted, evidence is insufficient if it raises in the mind of LIRC a legitimate doubt as to the existence of a fact necessary and essential to establish a claim for compensation. See Bumpas, 95 Wis. 2d at 342-43. Stated differently, but to the same effect, a worker's compensation award may not be based upon findings that are mere possibilities or speculation. See Franckowiak v. Industrial Comm'n, 12 Wis. 2d 85, 90, 106 N.W.2d 51 (1960). Here, the ambiguity in Dela-hunt's report allows for a "legitimate doubt" on the question of causation. Any award on the basis of this report would have constituted a possibility or speculation. Under such conditions, it was LIRC's duty to dismiss White's worker's compensation claim. See Bumpas, 95 Wis. 2d at 342-43.

CONCLUSION

¶ 27. We hold that the first scenario of Wis. Stat. § 102.01(2)(g)2 does not eliminate the need for proof that the accident or disease arose out of the employee's employment pursuant to Wis. Stat. § 102.03(1)(e). We further hold that LIRC's determination that Dela-hunt's report failed to satisfy White's burden of proof as to causation was reasonable.

By the Court. — Judgment affirmed.

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

       This award, however, was less than that sought by White, and White does not appeal this lesser award.


source: Caselaw Access Project

author: CURLEY, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Samuel Terry, Defendant-Appellant.

    Court of Appeals

      No. 99-2150-CR.

      Submitted on briefs August 1, 2000.

    Decided October 24, 2000.

    2000 WI App 250
    (Also reported in 620 N.W.2d 217.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard D. Martin, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Curley, JJ.

       Petition to review denied.

   CURLEY, J.

¶ 1. Samuel Terry appeals from the judgment of conviction, entered following a jury trial, for possession of a controlled substance with intent to deliver, as a repeat offender, contrary to WlS. STAT. §§ 961.16(2)(b)l, 961.41(lm)(cm)2, and 961.48. He also is appealing the order denying his postconviction motion. Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine, even under the relaxed preponderance of the evidence standard. We conclude that, while administrative agency decisions are given preclusive effect between the same parties in some instances, the doctrine of issue preclusion should not be applied to findings made in parole and probation revocation proceedings for three reasons: (1) the executive branch oversees revocation hearings through the Department of Corrections (DOC), and the district attorney is not a party. Moreover, DOC is generally disinclined to seek review of the ALJ's decision in a parole and probation revocation proceeding; (2) parole and probation revocation proceedings in this state and criminal trials have critical differences in procedure and function which militate against applying issue preclusion to revocation proceedings; and (3) public policy considerations weigh against applying issue preclusion to revocation proceedings. Thus, the State was not precluded from subsequently prosecuting Terry for possessing cocaine with the intent to deliver and we affirm.

I. Background.

¶ 2. Terry was charged with one count of possession with intent to deliver cocaine (more than five grams but not more than 15 grams), as a repeat offender. The charges stem from an incident following a traffic stop. Milwaukee Police Officer Peter Reichert stopped Terry for running a red light. During the traffic stop, Officer Reichert was suddenly called away to assist in another matter. Before leaving, Officer Reich-ert directed Terry and his passenger to stay in the car while he went to assist other officers. Officer Reichert returned approximately two to four minutes later.

¶ 3. Lawrence Kress, who lived approximately one block from the site of the traffic stop, watched Terry from his kitchen window after the officer pulled away. Kress reported to Officer Reichert upon his return, that he saw a man get out of the car, appear to drop something in the bushes near the car, and then get back into the car on the driver's side. Based on the information provided by Kress, the police located fifty-five "comer cuts" of crack cocaine in the bushes near Terry's car. Terry admitted that he was driving without a valid driver's license, but he denied possessing the drugs. Nevertheless, Terry was arrested on the strength of Kress's observations and a search yielded a cell phone and a pager.

¶ 4. Terry was charged with one count of possession with intent to deliver cocaine as a repeat offender. He pled not guilty and his trial was scheduled for August 5, 1998. Prior to trial, DOC instituted revocation proceedings against Terry because he was on both parole and probation. DOC alleged that Terry violated his probation and parole rules by operating an automobile without a valid license, possessing drug paraphernalia in the form of a pager and a cell phone, and possessing cocaine.

¶ 5. Terry's final revocation hearing was held in July 1998 before an ALJ. At the proceedings, the State was represented by a probation and parole agent. Both the arresting officer and Kress testified. The Officer described the traffic stop, explained that he had to leave the scene temporarily, and that when he returned to the scene, Kress informed him that the driver had gotten out of the car and dropped something in some nearby bushes. The Officer indicated that he then discovered the drugs. He also stated that, although there was a passenger in the car who could have hidden the drugs, he arrested Terry because Kress insisted that the person who got out of the car and hid the drugs got back into the car on the driver's side. Kress also testified. He confirmed that he saw a man get out of the car, drop something in the bushes and then get back into the car on the driver's side. He stated he was approximately one-half block away when he witnessed these events.

¶ 6. Coincidentally, the ALJ released its decision on the day Terry's jury trial began. In its decision, the ALJ found that the State had proven three of the four alleged violations: driving without a valid license, possession of a pager and possession of a cell phone, but the ALJ found that the State failed to prove that Terry possessed cocaine by a preponderance of the evidence and, therefore, rejected the charge as a basis for revoking Terry's parole. Nevertheless, the ALJ ordered Terry's parole revoked on the basis of the other three violations.

¶ 7. After a two-day jury trial in which Terry's defense was that the evidence was insufficient to convict him, he was found guilty. Terry was sentenced to a ten-year prison term, to run consecutive to his prior sentences. Terry then filed a postconviction motion seeking to have his conviction vacated and the charges dismissed with prejudice. In his postconviction motion, Terry argued for the first time that the ALJ's prior ruling, finding insufficient evidence to support the possession charge during the revocation proceedings, precluded the State from subsequently trying him on the identical facts. The trial court denied Terry's post-conviction motion.

II. Analysis.

¶ 8. Terry argues that because the State failed to prove the possession charge by a preponderance of the evidence during the revocation proceedings, it was precluded from subsequently relitigating the issue by charging him with a crime based on the identical facts. Terry submits that under the doctrine of issue preclusion, the ALJ's ruling that the State failed to prove the possession charge by a preponderance of the evidence, should have foreclosed a criminal charge because conviction of a crime requires a higher burden of proof — guilt beyond a reasonable doubt. Further, Terry contends that the five factors set forth in State v. Kasian, 207 Wis. 2d 611, 615-616, 558 N.W.2d 687 (Ct. App. 1996), "hearting] upon the question of whether [issue preclusion] applies," support his position. Finally, Terry asserts that "[c]oncepts of fundamental fairness and due process weigh in favor of according the revocation proceedings preclusive effect in subsequent criminal proceedings." We disagree.

¶9. "The application of issue preclusion doctrines to a given set of facts presents a question of law which this court reviews without deference to the trial court's ruling." Id.

¶ 10. In Ashe v. Swenson, 397 U.S. 436 (1970), the Supreme Court observed that the concept of issue preclusion, first developed in civil litigation, has been a rule of federal criminal law since 1916. See id. at 443 (citing United States v. Oppenheimer, 242 U.S. 85 (1916)). The Court explained that issue preclusion "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. Although Wisconsin courts have accepted the concept of issue preclusion, they have rejected a formalistic application of the doctrine of issue preclusion in favor of an equity-based approach. In Kasian, this court identified five criteria in determining whether issue preclusion applies:

(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issues; (4) have the burdens of persuasion shifted such that the parties seeking preclusion had a lower burden of persuasion in the first trial than in the second; and (5) are matters of public policy and individual circumstances involved that would render the application of [issue preclusion] to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?

Id. at 615-16; see also Restatement (Second) of Judgments § 28 (1980). Both Terry and the State argue that the application of these five criteria support their respective positions. In determining that issue preclusion does not apply in the instant action, we find three of the five criteria dispositive. Specifically, we are satisfied that: (1) the district attorney was not a party to the proceedings and could not have obtained review of the ALJ's decision even if the district attorney had so desired. Moreover, DOC normally does not appeal the ALJ's decisions in parole and probation revocation proceedings; (2) there are significant differences between revocation proceedings and criminal trials which warrant relitigation of the issue; and (3) under the circumstances present here, public policy considerations weigh against the application of issue preclusion.

¶ 11. First, we note that because the ALJ ultimately decided to revoke Terry's parole on three counts, DOC had no valid interest in pursuing an appeal of the decision on the first count. DOC was only interested in revoking Terry's parole; it was not interested in proving Terry guilty of a crime. Once the ALJ revoked Terry's parole based on three of the four alleged violations, DOC had obtained the desired result and had no farther reason to appeal the decision. Moreover, because the ALJ's decision was not adverse to DO C, it is questionable whether DOC could have appealed the decision had it so desired. Generally, a party that prevails on the ultimate issue may not seek further review of the underlying rationale for the decision. See State v. Castillo, 213 Wis. 2d 488, 491-92, 570 N.W.2d 44 (1997); Neely v. State, 89 Wis. 2d 755, 758, 279 N.W.2d 255 (1979). Therefore, because DOC ultimately prevailed in its efforts to revoke Terry's parole, it was arguably precluded from seeking further review of the decision based on the ALJ's rejection of one of the four alleged violations.

¶ 12. Additionally, we conclude that the significant differences between revocation proceedings and criminal trials warrant relitigation of the issue. In State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727 (1978), our supreme court determined that "[t]he ends of parole revocation are ... distinct from the punitive functions of the criminal law." Id. at 385 (holding that initiating parole revocation proceedings after an acquittal in a criminal trial does not implicate double jeopardy concerns). Revocation proceedings, unlike criminal trials, are not concerned with retribution. See id. A revocation, determination requires a balancing of the safety of the general public with the rehabilitative needs of the parolee. See id. In describing the differences between revocation proceedings and criminal trials, the court stated:

Thus revocation does not require a judicial hearing; the rules of evidence need not be strictly adhered to; and the privilege against self-incrimination does not prevent consideration of inculpatory statements or a parolee's refusal to answer questions. These distinctions reflect substantial differences between the interests involved in parole revocation and those in a criminal prosecution.

Id. at 384 (citations omitted). In Flowers, the court noted that for issue preclusion to apply, "[t]he second proceeding 'must involve . . . the same bundle of legal principles that contributed to the rendering of the first judgment.'" Id. at 387 (citation omitted). Finally, the court held that the "bundle of legal principles" was not the same in a revocation proceeding and a criminal trial because the burdens of proof differ.

¶ 13. The State relies, in part, on State v. Spanbauer, 108 Wis. 2d 548, 322 N.W.2d 511 (Ct. App. 1982), to support its position that the differences between revocation hearings arid criminal trials warrant relitigation of the issue. However, Terry argues that Spanbauer is distinguishable. We disagree with Terry. In Spanbauer, this court held that the ALJ's decision not to revoke parole did not bar a subsequent criminal prosecution based on the same allegations. In deciding against revoking Spanbauer's parole, the revocation decision stated that "[t]he determination not to revoke Spanbauer's parole was based upon a weighing of the interests of society and consideration of Spanbauer's rehabilitation." Spanbauer, 108 Wis. 2d at 552. Terry argues that Spanbauer is inapposite because the fact finder in Spanbauer did not make factual findings adverse to the State, as it did here when the ALJ specifically found that the State had failed to prove a crucial element of the crime of possession of cocaine. Terry reads Spanbauer too narrowly. We are satisfied that Spanbauer supports our conclusion that a prior factual finding in a revocation hearing, that is contrary to the State's position in a criminal prosecution, does not preclude the criminal prosecution:

Under the Wisconsin Constitution and the Wisconsin Statutes, the circuit courts of this state are given exclusive jurisdiction over all criminal matters. The legislature did not intend to delegate to a non-elected hearing examiner in parole revocation proceedings the authority to determine the guilt or innocence of a defendant. The decision not to revoke Spanbauer's parole is not a binding adjudication of the merits of the criminal charge against him.

Id. at 552 (citation omitted). Thus, contrary to Terry's assertion, Spanbauer is not inapposite. Further, as noted, Spanbauer instructs that the State Constitution and the legislature have mandated that jurisdiction over criminal matters lies with the trial court, and thus, a revocation proceeding is not a "binding adjudication of the merits" of the charge.

¶ 14. Finally, we are satisfied that public policy considerations warrant relitigation. Under our revocation scheme, the ultimate decision to revoke probation or parole rests with the executive branch of government, specifically DOC, and not the judiciary. See State v. Horn, 226 Wis. 2d 637, 650-53, 594 N.W.2d 772 (1999). During a revocation proceeding, the State is not represented by the district attorney, but by a non-lawyer DOC representative. Therefore, if we were to conclude that an ALJ's decision not to revoke probation or parole would preclude a subsequent prosecution by the district attorney, in all likelihood, district attorneys would be forced to intervene in all revocation proceedings to preserve the State's ability to prosecute the defendant. We agree with the State's position that this result would disturb the current criminal procedure in operation in this state and redirect valuable resources away from criminal prosecutions. Also, such a situation would force the revocation proceedings to become the main focus of the litigation turning revocation proceedings into mini-trials. Public policy and common sense dictate that this court should not countenance such a result.

¶ 15. For the stated reasons, we conclude that the State was not precluded from prosecuting Terry following an adverse decision in the revocation proceedings. Therefore, we affirm both the trial court's order denying Terry's postconviction motion and his judgment of conviction.

By the Court. — Judgment and order affirmed.

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

       The record indicates that on December 20, 1995, Terry was sentenced to forty-four months in prison for the 1995 possession conviction. Then on February 5, 1998, Terry was convicted of disorderly conduct in a separate case, and sentenced to a consecutive ninety-day jail term that was stayed in favor of probation.

       "Older cases refer to 'issue preclusion' as 'collateral estoppel' but the trend is to use the term 'issue preclusion.'" State v. Wille, 185 Wis. 2d 673, 680, 518 N.W.2d 325 (Ct. App. 1994).

       However, as both parties correctly argue, the court in Flowers was addressing the situation where the revocation proceedings followed an acquittal of the underlying criminal charges. Nevertheless, the order in which the proceedings occur is irrelevant. In State v. Spanbauer, 108 Wis. 2d 548, 551 n.1, 322 N.W.2d 511 (Ct. App. 1982), we indicated that, "Spanbauer seeks to distinguish [State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727 (1978)] on grounds that the revocation hearing in Flowers occurred after the criminal proceedings. The order of the proceedings is irrelevant because we hold that the proceedings are different in kind."

       Specifically, the State cites Spanbauer for the proposition that revocation proceedings do not have preclusive effect on criminal trials because they are not criminal adjudications and do not end in final judgments. We recognize that in Spanbauer we held that, "[issue preclusion] precludes relitigation of an issue of ultimate fact once that fact has been determined by a valid and final judgment." Id. at 550-51. Further, we note that the Restatement (Second) of Judgments § 27 refers to judgments and indicates that the issue to be precluded must have been "actually litigated," as well as be "essential to the judgment." See also Wis. Stat. § 967.02(8) (defining a "judgment" as an "adjudication by the court that the defendant is guilty or not guilty"). From these authorities, the State argues that because a decision by an AW in a revocation proceeding is not a criminal adjudication and does not end in a judgment, issue preclusion does not bar the relitigation of an issue decided in revocation proceedings. However, we note that we give preclusive effect to other administrative decisions that do not result in judgments.
      For example, in Hlavinka v. Blunt, Ellis & Loewi, 174 Wis. 2d 381, 497 N.W.2d 756 (Ct. App. 1993), we observed that, ”[a]bsent controlling legislation to the contrary, determinations by administrative agencies acting in a judicial capacity are generally given preclusive effect in subsequent actions between the same parties." Id. at 398; cf. Acharya v. AFSCME, Council 24, WSEU, 146 Wis. 2d 693, 696, 432 N.W.2d 140 (Ct. App. 1988) (Estoppel by record "is closely related to res judicata, except that it is the former record, rather than the judgment itself, that bars the second proceeding."). Further, we set forth the four conditions that must be met before an administrative agency determination is given preclusive effect:
      1. the administrative proceeding must have been properly before the agency;
      2. the administrative agency must have been acting in a judicial capacity;
      3. the issues for which preclusion is sought must have been actually determined by the administrative agency; and
      4. the parties must have had an adequate opportunity to litigate those issues before the administrative agency.

        Hlavinka, 174 Wis. 2d at 399. Consequently, we recognize that we have given preclusive effect to determinations that cannot properly be called judgments. Thus, we do not base our decision on the State's assertion that a revocation proceeding, unlike a criminal trial, does not result in a judgment. Rather, we ground our decision on the numerous remaining differences between a revocation proceeding and a criminal trial, which indicate that a revocation proceeding should not be given preclusive effect.

       To support this assertion, the State cites State v. Higa, 897 P.2d 928 (Haw. 1995), in which the defendant argued that his conviction for driving under the influence should be reversed because the administrative license revocation proceedings barred a subsequent criminal prosecution. The court in that case applied a similar rationale, concluding that the administrative proceedings did not bar subsequent criminal prosecution "because the state had not had a full and fair opportunity to litigate the issue as it would have in a criminal proceeding." Id. at 936. We find this analysis instructive.


author: PETERSON, J.

text:
    James E. Jaderborg, by his guardian ad litem, C.M. Bye, Jon Jaderborg and Barbara Jaderborg, Plaintiffs-Respondents, v. American Family Mutual Insurance Company, Defendant-Appellant, Employers Insurance of Wausau, Defendant.
    Court of Appeals

      No. 00-1102.

      Submitted on briefs September 12, 2000.

    Decided October 24, 2000.

    2000 WI App 246
    (Also reported in 620 N.W.2d 468.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark W. Wendorff and Paul E. David oí Wendorff, Ellison & David, Wausau.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of C.M. Bye of Bye, Goff & Rohde, Ltd., River Falls.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

       Petition to review denied.

   PETERSON, J.

¶ 1. American Family Mutual Insurance Company appeals a nonfinal order declaring that Jon and Barbara Jaderborgs' personal liability umbrella policy affords underinsured motorist coverage to their minor son, James Jaderborg, for injuries sustained in an automobile accident. Because the policy unambiguously excludes coverage for an underinsured motorist claim, we reverse the circuit court's order.

BACKGROUND

¶ 2. . James was injured in an automobile accident as a result of Danielle Mendyke's negligence. At the time of the accident, Mendyke was insured by USAA Casualty Insurance Company and had a liability bodily injury limit of $50,000 per person. The Jaderborgs had an automobile insurance policy with American Family that included an underinsured motorist endorsement. They also had a personal liability umbrella policy issued by American Family with a limit of one million dollars.

¶ 3. The Jaderborgs settled their claims for damages with Mandyke's insurer, USAA, for $50,000 and with American Family under their automobile policy for $50,000. Under the terms of the settlement, the Jaderborgs expressly reserved the right to make an underinsured motorist claim against their personal liability umbrella policy.

¶ 4. The Jaderborgs commenced an action, alleging that American Family's personal liability umbrella policy afforded coverage for an underinsured motorist claim. The Jaderborgs moved for declaratory judgment pursuant to Wis. Stat. § 806.04. The circuit court held that the umbrella policy issued by American Family afforded underinsured motorist coverage and granted the motion. This appeal followed.

STANDARD OF REVIEW

¶ 5. We interpret an insurance policy's terms without deference to the circuit court's decision. See Kaun v. Industrial Fire & Cas. Ins. Co., 148 Wis. 2d 662, 667, 436 N.W.2d 321 (1989). "The construction of words and phrases in insurance policies is generally a matter of law and is controlled by the same rules of construction as are applied to contracts generally." Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984). "Where no ambiguity exists in the terms of the policy, we will not engage in construction, but will merely apply the policy terms." Id. at 736.

DISCUSSION

¶ 6. The Jaderborgs' personal liability umbrella policy contains a general granting clause that provides:

We will pay up to our limit, compensatory damages for which an insured becomes legally liable for injury caused by an occurrence covered by this policy. This coverage applies only to damages in excess of the primary limit.

¶ 7. The umbrella policy contains an exclusion section. Within the section is a clause relating to underinsured motorists. It states:

Uninsured/Underinsured Motorists. We will not cover any claims which may be made under Uninsured Motorists Coverage, Underinsured Motorists Coverage or similar coverage, unless this policy is endorsed to provide such coverage.

According to the clear and unambiguous terms of the underinsured motorist exclusion, no underinsured coverage is afforded without the necessary endorsement. It is undisputed that the exclusion is not endorsed to provide underinsured coverage.

¶ 8. The Jaderborgs argue, however, that two other policy provisions create ambiguity and thus afford coverage: the "Other Insurance" condition and the Intra-Insured clause.

I. Other Insurance

¶ 9. The Jaderborgs argue that the umbrella policy creates underinsured coverage through the "Other Insurance" condition. They contend that the condition provides excess coverage in the event any applicable underlying insurance is exhausted. Under that interpretation, the condition provides excess underinsured motorist coverage over the Jaderborgs' underlying automobile insurance. We disagree.

¶ 10. The condition states:

Other Insurance. The insurance afforded by this policy is excess over any other insurance available to an insured, except insurance written specifically as an umbrella or excess liability insurance policy.

The condition simply operates to prioritize the insurance coverage afforded by the policy through other applicable insurance. The condition does not grant coverage. The Jaderborgs' interpretation ignores the express provisions of the policy that require the insured to maintain certain minimum primary insurance coverages in order to be afforded the excess coverage of the umbrella policy.

¶ 11. In Muehlenbein v. West Bend Mut. Ins. Co., 175 Wis. 2d 259, 499 N.W.2d 233 (Ct. App. 1993), we addressed whether an exclusion "endorsement to an insurance policy expanded the scope of the policy, when the body of the policy was clear and unambiguous and did not mention the coverage excluded by the endorsement." Id. at 262. We concluded that, "rather than creating an ambiguity, the endorsement at issue . . . actually eliminate[d] a potential ambiguity in the body of the umbrella policy." Id. at 265. The exclusion endorsement merely clarified the insurance policy, but did not expand its scope. See id. at 262. The policy in Muehlenbein made no other reference to underinsured motorist coverage. We recognized a potential ambiguity in the umbrella policy when the underlying policies were considered in conjunction with the "Other Insur-anee" provision of the umbrella policy. See id. at 268. The exclusion endorsement, however, clearly and unambiguously excluded underinsured motorist coverage, and eliminated the potential ambiguity in the body of the umbrella policy. See id. at 269.

¶ 12. Unlike the policy in Muehlenbein, the umbrella policy here contains an underinsured motorist exclusion. The effect, however, is the same as in Muehlenbein. The underinsured motorist exclusion prohibits coverage for an underinsured motorist claim and defeats the Jaderborgs' argument that the "Other Insurance" clause creates an ambiguity.

II. Intra-Insured Clause

¶ 13. The umbrella policy contains the following clause:

Intra-Insured Suits. We will not cover personal injury to the named insured or anyone within the meaning of part a or b of the definition of insured. However, this exclusion does not apply when the injuries arise from the use of a car or recreational motor vehicle.

The Jaderborgs argue that this clause conflicts with and thus supersedes the underinsured motorist exclusion. They contend that, under the Intra-Insured clause, an insured may not bring a claim under the umbrella policy for injuries, except where those injuries arise from the use of a vehicle. They further argue that because an underinsured motorist claim is a claim by an insured for their injuries arising from the use of a vehicle, the Intra-Insured clause creates coverage for an underinsured motorist claim. We are not persuaded.

¶ 14. The Intra-Insured clause provides coverage for personal injury to the named insured, but only coverage of the type afforded by the personal liability umbrella policy. Under the umbrella policy, liability coverage is available to cover an insured's injuries arising from another insured's use of a car. Thus, the clause allows one insured to sue another in situations such as guest-passenger accidents. This is the reason the clause carries the title "Intra-Insured Suits." The Jaderborg's interpretation ignores the significance of the language as it relates to one insured suing another insured for bodily injury arising from the use of a vehicle.

¶ 15. The Intra-Insured clause merely reflects the requirements of WlS. Stat. § 632.32(6)(b)l and 2 (1997-98), which prohibit an insurance company from excluding any person who is a named insured or passenger in the insured vehicle from the benefits provided by the policy.

¶ 16. The Jaderborgs also argue that because the Intra-Insured clause creates an ambiguity, it supersedes the underinsured exclusion clause. We disagree.

¶ 17. Coverage cannot be established by an exception to an exclusion. See Arnold P. Anderson, Wis consin Insurance Law § 1.9B (4th ed. 1998). "A reservation exception to an exclusion does not, standing alone, create coverage unless the claim is cognizable under the general grant of coverage." Silverton Enters. v. General Cas. Co., 143 Wis. 2d 661, 671, 422 N.W.2d 154 (Ct. App. 1988). The Jaderborgs' claim is not cognizable under the general grant of coverage. The general grant of coverage unambiguously affords only excess personal liability insurance. The Jaderborgs' claim is for underinsured coverage. As a result, they cannot rely upon the exception to the exclusion to establish coverage.

¶ 18. Regardless, we determine that there is no conflict between the Intra-Insured clause and the underinsured motorist exclusion. The Intra-Insured clause is not related to the granting of underinsured motorist coverage. The clause only relates to intra-insured suits.

By the Court. — Order reversed.

       On May 19, 2000, we granted American Family's petition for leave to appeal. This is an expedited appeal under Wis. Stat. Rule 809.17 (1997-98).

       The Jaderborgs' automobile insurance policy contained a $50,000 limit after applying a reducing clause pursuant to their underinsured motorist coverage.

       Wisconsin Stat. § 632.32(6)(b)1 and 2a (1997-98), reads as follows:
      (b) No policy may exclude from the coverage afforded or benefits provided:
      1. Persons related by blood or marriage to the insured.
      2. a. Any person who is a named insured or passenger in or on the insured vehicle, with respect to hodily injury, sickness or disease, including death resulting therefrom, to that person.


author: BROWN, P.J.

text:
    Eric Winkelman and Christine Winkelman, Plaintiffs-Appellants, v. Town of Delafield and Town of Delafield Zoning Board of Appeals, Defendants-Respondents.
    Court of Appeals

      No. 99-3158.

      Submitted on briefs August 23, 2000.

    Decided October 25, 2000.

    2000 WI App 254
    (Also reported in 620 N.W.2d 438.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of James W. Hammes of Cramer, Multhauf& Hammes, LLP of Waukesha.
    On behalf of the defendants-respondents, the cause was submitted on the brief of H. Stanley Riffle of Arenz, Molter, Macy & Riffloe, S.C. of Waukesha.
    Before Brown, P.J., Anderson and Snyder, JJ.
   BROWN, P.J.

¶ 1. This is a personal jurisdiction problem. The issue is whether a statutory certiorari court, having three years ago denied the landowners a writ claiming conditions attached to a variance were invalid, has continuing jurisdiction over the landowners to order specific performance of those conditions. We note that when a statutory writ is sought by the landowners, the certiorari court's remedy is limited to determining whether a variance is valid. Therefore, the landowners submit themselves to the jurisdiction of the court for that limited purpose. The final decree does not contemplate the performance of a series of acts. In an enforcement action, it is not the landowners, but the government, which seeks to enforce the variance. The validity of the underlying variance is not at issue; the only issue is whether the landowners have violated the variance. Thus, the court's review powers are different. We hold that the Town of Delafield Zoning Board of Appeals (the Board) needs to obtain jurisdiction over the landowners for this different kind of legal action by serving a summons and complaint or by serving an appropriate original writ. Because this did not occur in the case before us, personal jurisdiction was not obtained and we reverse.

¶ 2. Eric and Christine Winkelman own a lot containing two houses in the Town of Delafield, both of which are considered nonconforming structures under the Town's zoning code. The code states that repairs to nonconforming structures may not exceed fifty percent of the fair market value of the structures. The Winkelmans made repairs to the houses in excess of this amount. They asked the Board to grant them a variance — which the Board did — on the condition that one of the houses be razed within three years. The Winkelmans appealed this order to the circuit court by certiorari pursuant to Wis. Stat. § 62.23(7)(e)10 (1997-98), claiming that the Board lacked the authority to impose this condition. The circuit court affirmed the order of the Board. Three years passed and the Winkelmans failed to raze the house. To enforce the condition of the variance, the Board brought a motion entitled "Motion for Further Relief' requesting that the certiorari court order that the Winkelmans raze the house or that the Town be allowed to do so. The certio-rari court granted the Board's motion.

¶ 3. The Winkelmans argue that the certiorari court did not have personal jurisdiction to enforce the conditional variance because no summons and complaint were served upon them. To resolve their contention, we first look to the basic law concerning statutory certiorari review. Statutory certiorari review is not for resolving disputes; rather, it exists only to test the validity of agency decisions. See Merkel v. Village of Germantown, 218 Wis. 2d 572, 580, 581 N.W.2d 552 (Ct. App. 1998), review denied, 220 Wis. 2d 367, 585 N.W.2d 159 (Wis. Aug. 21, 1998) (No. 97-3347). The scope of certiorari review is limited to whether the agency: (1) kept within its jurisdiction, (2) acted according to law, (3) did not act arbitrarily or unreasonably or according to its will and not its judgement, and (4) made a decision based on evidence one might reasonably use to make the determination in question. See id. at 578. Statutory certiorari review can only be brought by a party affected by an agency decision for the purpose of testing the validity of that decision. See id. at 580. Therefore, when the Winkelmans brought a certio-rari action to test the validity of the condition the Board placed on the variance, the Board did not and could not have counter-petitioned the court to enforce the condition of the variance.

¶4. When the Board brought its motion to enforce the condition of the variance, it did so believing that the certiorari court had continuing jurisdiction to enforce the variance. The Board was of the opinion then, and is of the opinion now, that once the Winkelmans submitted themselves to the circuit court's jurisdiction in order to determine whether the variance was valid, and once the circuit court determined the variance to be valid, that determination was also an order by the court that the Winkelmans had to comply with the conditions of the variance. In other words, by failing to abide by the order, the Winkelmans were flouting not only the variance, but the order of the court and were therefore in contempt. Therefore, the certiorari court had inherent authority to hear whether the Winkelmans were in contempt of the court's order.

¶ 5. We do not agree. By reviewing the purposes of certiorari, we see how limited the certiorari court's remedy is. The scope of certiorari extends to all questions of jurisdiction, power and authority of the inferior tribunal to do the action complained of and all questions relating to the irregularity of the proceedings. See State ex rel. Wood County v. Dodge County, 56 Wis. 79, 84-85, 13 N.W. 680 (1882). In short, the issue is limited to whether the tribunal has kept within the boundaries prescribed by the express terms of the ordinance, statute or law of this state. See State ex rel. Wasilewski v. Board of Sch. Dirs. of City of Milwaukee, 14 Wis. 2d 243, 263, 111 N.W.2d 198 (1961). In its essence, circuit court review is supervisory in nature. See State ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 510-12, 107 N.W. 500 (1906). The issue is the regularity of the inferior tribunal's proceeding. The court in such an instance is not being asked to compel the doing of any act. Its order, either granting or denying the writ, is not coercive in any way. When the court obtains personal jurisdiction over the landowner in a certiorari action brought by the landowner, that jurisdiction contemplates no farther proceedings after a determination about regularity. Rather, the court is being asked to "review" the record. Once the review is completed, the review is over; it is done.

¶ 6. On the other hand, an action to enforce a variance, such as a mandamus action, is a coercive remedy. The purpose there is to force the removal of an unlawful construction. The government's purpose is to compel action on the part of a landowner. Thus, the purpose is entirely different from the purpose of a review for regularity. We hold that personal jurisdiction in such a civil action must be established by serving a summons and complaint or an original writ. See Wis. Stat. §§ 801.02, 801.04(2). The reason is that this is an action in which the government, not the landowner, is seeking a remedy. An action seeking a remedy available by mandamus or prohibition may be commenced by the service of a summons and complaint or by service of an appropriate original writ. See § 801.02(5).

¶ 7. Standing alone, motion papers cannot confer personal jurisdiction. See Town of Fitchburg v. City of Madison, 98 Wis. 2d 635, 653, 299 N.W.2d 199 (1980). Because the Board, in this case, attempted to bring an action to enforce the conditions of a variance by a motion, it did not obtain personal jurisdiction over the Winkelmans.

¶ 8. We recognize that the certiorari action involved the same parties, concerning the same variance. It might be argued that forcing the service of a summons and complaint or service of a writ is placing form over substance and wastes time. That argument would be meritless. First, it takes no more appreciable time to serve a summons and complaint or a writ than it does to serve a motion. Second, and more important, our holding equates substance with form because it recognizes that a review for regularity and an enforcement action are two entirely different matters, even if the parties are the same and the variance in question is the same. The form over substance argument simply does not wash.

¶ 9. Ordinarily, our holding would end the matter and we would not entertain any issue regarding the merits of the enforcement action. However, in rare instances, this court has exercised its discretion to reach the issue anyway to save scarce judicial resources. See Nischke v. Farmers & Merchants Bank & Trust, 187 Wis. 2d 96, 102, 522 N.W. 2d 542 (Ct. App. 1994). This occurs when we are sure that the issue will come before the circuit court at a later time and we have the means with which to answer the question so as to avoid future litigation on the topic. We choose to address an issue raised by the Winkelmans as follows.

¶ 10. The Winkelmans claim that language contained in the variance itself provides only one remedy for noncompliance: revocation of the variance. Therefore, the Winkelmans argue that the Board may not seek an order requesting specific performance of the raze condition or fines for refusing to raze the house. The Winkelmans rely on Section 5 of the "General Conditions" of the variance which states: "This order may be revoked after notice and opportunity to be heard for violation of any of the conditions or limitations imposed upon the granting of this privilege including any conditions precedent to its exercise." The Winkelmans contend that since the only remedy named is revocation, the language by its own terms limits the remedy available to the Board.

¶ 11. We disagree that Section 5 limits the Board's remedy to revocation. Section 5 alerts the Winkelmans that one of the Board's options is revocation of the variance if the Winkelmans fail to comply with its conditions. Section 5 in no way limits other remedies available to the Board or precludes enforcement of the conditional variance. Moreover, the wording of Section 5 says only that the Board "may revoke." We agree with the Board that the remedy of revocation is strictly optional. Consequently, if the Board obtains personal jurisdiction over the Winkelmans, it may seek to enforce the conditions of the variance.

By the Court. — Order reversed.

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

       The motion challenging the circuit court's jurisdiction was heard and decided by Judge Neal Nettesheim, sitting in the circuit court by reason of the supreme court's pilot judicial exchange program. After the motion was denied, the enforcement action was heard by Judge Patrick L. Snyder.


text:
    Clyde W. Harger, Plaintiff-Appellant, v. Caterpillar, Inc., Defendant-Respondent, Peterbilt Motors Company, Defendant.
    Court of Appeals

      No. 00-0536.

      Submitted on briefs October 2, 2000.

    Decided October 25, 2000.

    2000 WI App 241
    (Also reported in 620 N.W.2d 477.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Douglas I. Henderson of Kenosha.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Gino Alia of O'Connor & Willems, S.C. of Kenosha, and of counsel, Brian W. Bell and Laura A. Zehner of Swanson, Martin & Bell of Chicago, Illinois.
    Before Brown, P.J., Nettesheim and Anderson, JJ.

      Petition to review dismissed.

   BROWN, P.J.

¶ 1. The issue here is whether a manufacturer of component parts of a motor vehicle is subject to the Lemon Law. Wisconsin Stat. § 218.01(1)(L) (1997-98) defines the type of manufacturer who is liable under the Lemon Law. We hold that a manufacturer of component parts who ships the completed part to the automobile manufacturer is not liable imder the statute. We affirm the trial court's dismissal of this case.

¶ 2. Clyde W. Harger purchased a 1992 Peterbilt Model 379 Tractor from Peterbilt of Wisconsin, Inc. Caterpillar, Inc., made the engine contained in Hanger's tractor. Peterbilt installed the engine in the tractor. Harger claims that he had a number of problems with the vehicle, including engine problems, which made the tractor a "lemon." Harger sued Caterpillar under the Lemon Law, claiming it was liable because it is a manufacturer under this law.

¶ 3. The Lemon Law is contained in ch. 218 of the Wisconsin Statutes. To resolve the issue, we must interpret Wis. Stat. § 218.01(1)(L), which defines the term "manufacturer" under the Lemon Law. We interpret statutes de novo. See Bar Code Resources v. Ameritech Info. Sys., Inc., 229 Wis. 2d 287, 291, 599 N.W.2d 872 (Ct. App. 1999). If a statute is unambiguous, we apply the language of the statute without looking to interpretive aids. See id. A statute is ambiguous if reasonable minds could disagree as to what the statute means. See Dussault v. Chrysler Corp., 229 Wis. 2d 296, 301, 600 N.W.2d 6 (Ct. App. 1999).

4: Wisconsin Stat. § 218.01(1)(L) describes two classes of manufacturers. For purposes of clarification, we will change the original format of the relevant paragraph to an outline form to visually separate the two different classes. We will also label the classes [1] and [2] — although those labels do not appear in the statute as such — as well as the prerequisites [a] through [d] that are necessary before a manufacturer under class [2] can be considered to be liable under the law:

"Manufacturer" means any person, resident or nonresident who[:]
[Class 1] manufactures or assembles motor vehicles [Class 2] or who manufactures or installs:
[a] on previously assembled truck chassis, special bodies or equipment
[b] which when installed form an integral part of the motor vehicle
[c] and which constitutes a major manufacturing alteration
[d] and which completed unit is owned by such manufacturer.

Section 218.01(1)(L) has been renumbered and some changes have been made to the text of the statute, none of which affect our interpretation.

¶ 5. Both parties agree that Caterpillar does not fall within the first class of manufacturers because Caterpillar does not manufacture or assemble motor vehicles. Harger claims Caterpillar is a manufacturer under the second class. For Harger to show that Caterpillar comes within the second class, all four prerequisites must be present because the language defining the second class is in the conjunctive, not the disjunctive. In other words, Caterpillar must have manufactured or installed special bodies or equipment on a previously assembled truck chassis. The special bodies or equipment when installed must have formed an integral part of the motor vehicle. The special bodies or equipment when installed must have constituted a major manufacturing alteration. And Caterpillar must have owned the completed unit. We will now discuss whether Harger has met this burden.

¶ 6. Both parties agree that the Caterpillar engine is a "special body or equipment" which was installed on a previously assembled truck chassis. But under the first element, Caterpillar must have manufactured or installed the engine on a previously assembled truck chassis. It is undisputed that Peterbilt installed the engine on the truck chassis. Caterpillar only makes and sells engines to Peterbilt. Caterpillar has nothing to do with manufacturing or installing the engine onto the truck chassis; so, the first element is not met.

¶ 7. Harger also fails under the fourth prerequisite. The completed unit (the engine and the chassis together) belongs to Peterbilt, not Caterpillar. Harger claims that the engine, which Caterpillar owned until it sold it to Peterbilt, is the "completed unit." According to Harger, the legislature wanted to make component parts manufacturers liable under the Lemon Law. So, the legislature used the term "completed unit" to describe component parts and expand Lemon Law liability to them.

¶ 8. But that analysis makes no sense. According to the plain language of the statute, the "completed unit" is the truck chassis plus the special bodies or equipment. The first three elements of the second class of manufacturers state that a manufacturer is one who "manufactures or installs on previously assembled truck chassis, special bodies or equipment which when installed form an integral part of the motor vehicle and which constitutes a major manufacturing alteration." Wis. Stat. § 218.01(1)(L). These elements are describing the manufacturing or installing process in which a truck chassis and special bodies or equipment are combined. The phrase "completed unit" follows the discussion of this process and describes the outcome, which is the truck chassis and special bodies or equipment combined.

¶ 9. Furthermore, as stated above, both parties agree that component parts, such as engines, are "special bodies or equipment." Component parts cannot be both the "special bodies or equipment" and the "completed unit" because the "special bodies or equipment" and the chassis, once put together, make the "completed unit." Moreover, if the legislature intended that a technical phrase such as "special bodies or equipment" meant the same thing as the "completed unit," used only twenty words later in the same paragraph, it would have only used one term. In other words, "completed unit" must mean something other than the equivalent of "special bodies or equipment." Reading the elements of the statute together, the "completed unit" is the result of the manufacturing or assembly process described in the statute — the chassis plus the special bodies or equipment. It is undisputed that Peterbilt, rather than Caterpillar, owned the completed unit. Caterpillar fails to meet the final element of the second class of manufacturers.

¶ 10. As noted by Caterpillar, putting the conclusive language of Wis. Stat. § 218.01(1)(L) aside, the practical and financial difficulties of requiring manufacturers of component parts to provide Lemon Law remedies demonstrate that the legislature did not intend that component parts manufacturers be liable under the Lemon Law. Damages under the Lemon Law include replacing the vehicle or refunding the purchase price of the vehicle less reasonable use. See Wis. Stat. § 218.015(2)(b)2.a, b. Manufacturers of component parts would have difficulty replacing the vehicle as they are not in the business of selling vehicles and have no inventory of vehicles on hand.

¶ 11. Further, it makes no sense to saddle manufacturers of component parts with the financial risk of having to reimburse the vehicle owner for the purchase price of the vehicle less reasonable use. Component parts manufacturers do not receive payment from the purchasers for the entire purchase price of the vehicle. For example, in this case, the engine cost less than twenty percent of the entire purchase price of the tractor and Peterbilt only compensated Caterpillar for that amount. Under Harger's theory of this case, Caterpillar could be liable for nearly the entire purchase price of the vehicle even though it was never paid anywhere near this amount. Contrary to Harger's assertion, the legislature could not have intended this result.

By the Court. — Order affirmed.

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


author: VERGERONT, J.

text:
    Kristin Galatowitsch and Dennis Galatowitsch, Plaintiffs-Respondents, v. James Wanat and Barbara Wanat, Defendantg-Appellants, Eagan Agency, Ltd. and Coldwell Banker Classic Inc., Third-Party Defendants.
    Court of Appeals

      No. 00-0199.

      Submitted on briefs April 28, 2000.

    Decided October 26, 2000.

    2000 WI App 236
    (Also reported in 620 N.W.2d 618.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David L. Werth of Van Epps and Werth of Weyauwega.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief oí Kristin K. Galatowitsch of Kubasta, Rathjen & Bickford of Wautoma.
    Before Dykman, P.J., Vergeront, Deininger, JJ.
   VERGERONT, J.

¶ 1. The issue on this appeal is whether the sellers in a failed residential real estate transaction are precluded, either by the terms of the purchase agreement or the doctrine of election of remedies, from recovering actual damages for the buyers' breach solely because the sellers requested the earnest money as liquidated damages and, in their initial complaint, requested the earnest money as a remedy. The buyers, James and Barbara Wanat, appeal a judgment of the trial court awarding the sellers, Kristin and Dennis Galatowitsch, actual damages in the amount of $10,607 plus costs for the Wanats' breach of the agreement. The Wanats contend the Galatowitsches elected a remedy under the agreement when they requested the earnest money as liquidated damages and then sued to recover it when they did not receive it; that election, the Wanats contend, precludes the Galatowit-sches from amending their complaint to request actual damages.

¶2. We conclude' that the buyer-default provision of the purchase agreement does not prevent the sellers, after they requested the earnest money as liquidated damages but did not receive it, from directing the return of the earnest money to the buyers and suing for actual damages. We also conclude that the doctrine of election of remedies does not preclude the sellers under these circumstances from amending their complaint to request actual damages instead of liquidated damages. We therefore affirm.

BACKGROUND

¶ 3. The Wanats, through a realtor, submitted an offer to purchase the Galatowitsches’ home on a WB-11 Residential Offer to Purchase form. After counteroffers the parties entered into a purchase agreement on May 22,1998, pursuant to which the Wanats depos-' ited $2,000 as earnest money with Coldwell Banker Classic Inc., the Galatowitsches' real estate broker. The agreement contained a financing contingency available until June 1,1998, and required the Wanats to notify the Galatowitsches on or before that date if they could not obtain the financing.

¶ 4. The Wanats failed to obtain the financing and did not notify the Galatowitsches of this fact on or before June 1, 1998. Shortly thereafter the Galatowit-sches sent a letter to the Wanats stating the Wanats had breached the agreement by that failure to notify and requested the earnest money as liquidated damages. Not receiving the earnest money, the Galatowitsches filed an action on November 16, 1998, naming the Wanats and Coldwell Banker as defendants. The complaint alleged the breach of the agreement and the failure to give the Galatowitsches the earnest money upon their request. It demanded judgment in the amount of $2,000, plus interest and costs. In their answer, the Wanats denied a breach.

¶ 5. Approximately one month later, the Galatowitsches sold their home to other buyers. They amended the complaint to demand actual damages based on the difference in the later sale price and that agreed to with the Wanats. The amended complaint alleged that the Galatowitsches had, on the date they filed the amended complaint, directed Coldwell Banker to return the earnest money to the Wanats. In their amended answer the Wanats asserted that the court lacked subject matter jurisdiction because of the Galatowitsches' choice to request the earnest money as liquidated damages.

¶ 6. Coldwell Banker answered the first complaint by denying that it had failed to release the earnest money to the Galatowitsches and alleging it had no authority to do so without a mutual release or court order. It asserted an interpleader claim because of competing claims on the earnest money, seeking to pay the $2,000 to the court and be relieved of further liability. In response to the amended complaint, Cold-well Banker added as a defense that on March 29, 1999, they forwarded a cancellation and mutual release to the Wanats that allowed Coldwell Banker to disburse the earnest money, but the Wanats refused to sign it.

¶ 7. The matter was tried to the court. Before presentation of the evidence, Coldwell Banker was dismissed upon paying the earnest money into court, save $250 it retained as attorney fees. The Wanats stipulated they did not have financing and did not provide written notice of such until June 2,1998. The evidence at trial focused on the Wanats' defense that the Galatowitsches, by their conduct, had waived the June 1, 1998 deadline. The Galatowitsches also presented evidence on the actual damages.

¶ 8. The court found the Wanats had breached the agreement and the Galatowitsches had not waived the breach. It determined that "the [Galatowitsches] are not precluded from seeking actual damages as their complaint alleges that they attempted to return the security deposit, thus they are not limited to liquidated damages. . . ." The court found the Galatowitsches' damages — the difference between the sale price in the contract with the Wanats and the ultimate sale price, less adjustments for costs of sale — were $10,607.

DISCUSSION

¶ 9. The Wanats contend the trial court erred in awarding actual damages to the Galatowitsches because, by requesting the earnest money as liquidated damages and then suing to recover it when they did not receive it, the Galatowitsches were bound by the election of that remedy. The Wanats rely on both the terms of the agreement and the doctrine of election of remedies in their argument.

¶ 10. The relevant default provision of the parties' agreement, contained in the initial offer to purchase, provides:

If Buyer defaults, Seller may:
(1) sue for specific performance and request the earnest money as partial payment of the purchase price; or
(2) terminate the Offer and have the option to:
(a) request the earnest money as liquidated damages; or
(b) direct Broker to return the earnest money and have the option to sue for actual damages.

¶ 11. The Wanats assert that under paragraph 2, once the sellers request the earnest money as liquidated damages, even if they do not receive it and must sue to recover it, they are limited to that request and may not elect option (b). The Galatowitsches, on the other hand, contend this language does not preclude the seller from electing option (b) if they request the earnest money and the buyer does not permit them to have it. A resolution of the proper construction of this contract language presents a question of law, which we review de novo. See Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990).

¶ 12. In Zimmerman v. Thompson, 16 Wis. 2d 74, 75, 114 N.W.2d 116 (1962), the court construed the buyer-default provision in a prior version of the WB Residential Offer to Purchase form, which provided: "[s]hould the ... buyer fail to carry out this agreement, all money paid hereunder shall, at the option of the Seller, be forfeited as liquidated damages and shall be paid to or retained by the Seller, subject to deduction of broker's commission and disbursements, if any." The buyer paid $500 down but failed to pay the balance of the purchase price. The seller sold the property to a third party, retained the down payment of the first proposed buyer, and sued for an amount alleged to be the actual damages after crediting the $500.

¶ 13. The court in Zimmerman held that the contract gave the seller the option of keeping the deposit money as liquidated damages, and that the seller also had the option of recovering whatever actual damages he could prove, but the seller did not have the right to both:

If he chooses liquidated damages he may retain the down payment without further fuss or bother. If he chooses actual damages the contract gives him no additional present, simultaneous, right to retain the down payment. He has retained it and is now trying to expand the limited right of retention into a right to keep the money and apply it on whatever larger damages he can establish. The contract does not so provide.

Id. at 76-77. Because the contract gave the seller the right to retain the down payment only if he opted to take that amount in liquidated damages, the court concluded that in keeping the down payment the seller "had exercised his option to treat the cash in his hands as liquidated damages. Accordingly, no cause of action for actual damages remains to him." Id. at 77.

¶ 14. Because the language of the buyer-default provision in Zimmerman differs from this case, Zimmerman does not fully resolve the question of the proper construction of this agreement. However, Zimmerman is helpful because it explains the purpose of allowing the seller to elect the earnest money as liquidated damages is to allow the seller a remedy "without further fuss or bother." And it also tells us something a seller may not do: both retain the earnest money as liquidated damages "without the fuss or bother" of a lawsuit and bring a suit for additional damages.

¶ 15. Turning to paragraph 2 of the buyer-default provision in this contract, we conclude that both parties' constructions are reasonable and, therefore, the terms are ambiguous. See Borchardt, 156 Wis. 2d at 427. Option (a) states only that the earnest money is "requested," not that it is also to be "received," which supports the Wanats' construction. On the other hand, option (a) does not mention a suit, while option (b) does, thus suggesting that option (a) does not contemplate a suit by the seller to recover the earnest money requested, but, instead, receipt without a suit. When contract terms are ambiguous, we construe them so as to make a rational business instrument and to effectuate what appears to be the intent of the parties. See id. Because the disputed terms are contained in the WB-11 Residential Offer to Purchase form, which has been approved by the Wisconsin Department of Regulation and Licensing, see Wis. Admin. Code § RL 16.03 note, we conclude that one purpose of the agreement as a whole is to provide terms for the purchase of residential real estate that are reasonably fair to both the buyer and the seller. We examine the disputed provision with this in mind.

¶ 16. As the court in Zimmerman pointed out, when the buyer breaches and the seller receives the earnest money as liquidated damages, the seller benefits by having a speedy and inexpensive means to recover some damages, although perhaps not all. The buyer also benefits by not having to defend an action in court with the exposure of greater damages. However, if the seller requests the earnest money as liquidated damages for a breach but does not receive it, the seller must expend the time and money to file a lawsuit. Thus, the seller does not have the benefit of a speedy, inexpensive means to recover some damages, but, under the Wanats' interpretation, the buyer still benefits because in the suit the seller must bring, the damages are limited to the amount of the earnest money. It is true that the seller in this scenario must prove only the breach, and not the actual damages. However, if the seller's actual damages exceed the earnest money, that is not a benefit to the seller, but rather, a serious disadvantage.

¶ 17. This imbalance is significant because of the buyer's role under other contract provisions in deciding whether the seller receives the earnest money when the seller requests it as liquidated damages. The agreement provides that if the offer does not close:

[T]he earnest money shall be disbursed according to a written disbursement agreement signed by all Parties to this Offer. If said disbursement agreement has not been delivered to broker within 60 days after the date set for closing, broker may disburse the earnest money:
(1) as directed by an attorney who has reviewed the transaction and does not represent Buyer or Seller;
(2) into a court hearing a lawsuit involving the earnest money and all Parties to this Offer;
(3) as directed by court order; or
(4) any other disbursement required or allowed by law.

Thus, if the seller requests the earnest money as liquidated damages and the buyer disputes the agreement was breached, the broker may not disburse the earnest money except under one of the four specified conditions. Under the Wanats' construction, the buyer has little incentive to agree to the seller's request for the earnest money as liquidated damages unless the buyer is convinced the seller's position on breach is very strong: if the buyer does not agree, the seller will have to file a court action and prove a breach, and can recover no more than the earnest money. By the same token, under the Wanats' construction, a seller has little incentive to request the earnest money as liquidated damages unless the seller is convinced he or she cannot prove damages in a greater amount: if the buyer does not agree to the request, the seller will have to sue to prove a breach and will be limited to the earnest money as liquidated damages. The effect discourages the disbursement of earnest money to the seller as a speedy and inexpensive means to settle disputes.

¶ 18. The construction proposed by the Galatowitsches is more balanced in its impact on the interests of the two parties and more likely to encourage settlement. The seller may request the earnest money as liquidated damages without the risk of having to file a suit in which the seller cannot recover all damages even if the seller proves a breach. Upon the seller's request, the buyer has the opportunity to evaluate the strength of the seller's claim of breach, the likely amount of damages and their susceptibility of proof, and to either agree or disagree to the disbursement of the earnest money as liquidated damages. If the buyer agrees, the dispute is resolved. If the buyer disagrees, the buyer understands he or she may have to defend a suit for breach of the agreement and may have to pay actual damages; however, the seller must direct the return of the earnest money to the buyer before seeking actual damages.

¶ 19. We conclude that a seller's request for the earnest money as liquidated damages under option (a) does not foreclose the exercise of option (b) if the seller does not receive the earnest money. Compared to the construction proposed by the Wanats, this construction is more consistent with the purpose of liquidated damages; it is more consistent with the purpose of encouraging settlement of disputes, which is a rational purpose in the context of this type of transaction; and it is a fairer balance of the competing interests of the buyer and seller.

¶20. We next consider the Wanats' argument that case law on the doctrine of election of remedies precludes the Galatowitsches from amending their complaint for actual damages after requesting the earnest money as liquidated damages and filing the initial complaint. The Wanats rely on Gaugert v. Duve, 217 Wis. 2d 164, 579 N.W.2d 746 (Ct. App. 1998), which, in turn, relies on Stadler v. Rohm, 40 Wis. 2d 328, 161 N.W.2d 906 (1968), for an explanation of the doctrine precluding the election of two inconsistent remedies. Stadler held that a buyer who initiated an action for specific performance of a real estate purchase agreement, and for damages for certain defects in the property, was precluded from later amending the complaint to seek rescission of the contract. The court reasoned that the initial complaint recognized and affirmed the contract, which is inconsistent with a request for rescission of the contract, and, once having chosen the former, the buyer lost the right to rescind. See id. at 334-36.

¶ 21. While a claim for breach of contract is considered inconsistent with a claim for rescission of a contract, the same is not true for alternative remedies for a claim of breach of contract. The court in Pierson v. Dorff, 198 Wis. 43, 52-53, 223 N.W. 579 (1929), held that a seller who counterclaimed for specific performance in a buyer's suit for the earnest money could amend the counterclaim and ask for damages, after having sold the property before trial. The court explained that, unlike an action on a contract for breach and an action to rescind a contract, which are inconsistent because the former stands on the contract and the latter seeks to set it aside, specific performance and damages are both based on the contract. See id. at 51-53. They are alternative remedies for that breach, and, although one or the other must be elected at some stage in the proceeding, the pleading may request both. See id. at 52-53. We applied Pierson in Yee v. Giuffre, 176 Wis. 2d 189, 194-95, 499 N.W.2d 926 (Ct. App. 1993). In Yee we held that a seller who requested specific performance and, in the alternative, actual damages for a buyer's breach was not precluded from abandoning the request for specific performance after the property's sale to other buyers, and pursuing only the request for damages.

¶ 22. Just as the remedy of specific performance and the remedy of actual damages are alternative remedies for a claim of breach of contract, so, too, are the remedies of liquidated damages and actual damages. Following the reasoning of Pierson, we conclude that a party who has requested but not received the earnest money as liquidated damages and sues to recover is not precluded thereby from amending the complaint to request the alternative remedy of actual damages. Of course, there may be a stage of the proceeding beyond which such an amendment is not permitted by the court. However, in this case, the Galatowitsches amended the complaint within six months, which they may do as of right under Wis. Stat. § 802.09(1) (1997-98). There may also be cases in which a change in the election of remedy would not be permitted because the party had materially changed positioEn in reliance on the initial choice. See Restatement (Second) of the Law, Contracts 2d § 378 (1981) (when the other party has "materially changed his position in reliance on the original choice ... a shift [is] . . . precluded by the election of the first;" a change is material if changing remedies would be unjust). However, the Wanats do not claim they changed their position in reliance on the Galatowitsches' request for the earnest money as liquidated damages such that it is unjust to permit the Galatowitsches to seek actual damages instead.

¶ 23. We therefore conclude the Galatowitsches are not precluded, either by the terms of the purchase agreement or the doctrine of election of remedies, from amending their complaint to request actual damages. Of course, under the buyer-default provision a condition of suing for actual damages is that the seller direct the broker to return the earnest money to the buyer. The Galatowitsches alleged in the amended complaint that they did so. The Wanats do not argue on appeal that the Galatowitsches did not do that, nor that they did not prove that they did. If we are mistaken and the Wanats do intend to raise either of these arguments on appeal, we conclude the record is insufficient for them to do so. Therefore, we do not address this point further. We conclude the trial court correctly determined the Galatowitsches were entitled to their actual damages.

By the Court. — Judgment affirmed.

       The Wanats also filed a third-party complaint against Eagan Agency, Ltd., the employer of their real estate agent. The agency was dismissed before trial.

       The amended complaint was filed on March 15, 1999. It alleges that the broker was directed to return the earnest money to the Wanats on March, 15, 1998, but we assume the correct year of the request is 1999.

       The Wanats do not appeal the trial court's determination that they breached the agreement.

       The Galatowitsches cite a number of cases that follow and discuss Zimmerman v. Thompson, 16 Wis. 2d 74, 114 N.W.2d 116 (1962), but they are less factually similar to this case, and do not add to Zimmerman for purposes of resolving this appeal. In Moritz v. Broadfoot, 35 Wis. 2d 343, 151 N.W.2d 142 (1967), and Sorce v. Rinehart, 69 Wis. 2d 631, 230 N.W.2d 645 (1975), the sellers both kept the earnest money and sought the remedy of specific performance, which, the court held, was permissible. In Mansfield v. Smith, 88 Wis. 2d 575, 277 N.W.2d 740 (1979), the court was concerned with the seller's right under the purchase agreement to choose the earnest money as liquidated damages insofar as it affected the broker's right to compensation under the fisting agreement.

       The court in Stadler v. Rohm, 40 Wis. 2d 328, 337-38, 161 N.W.2d 906 (1968), recognized that the buyer's election was not irrevocable if the buyer was not aware of "substantial facts," which, if known, might have caused the buyer to make another choice, and if the buyer could not have reasonably known those facts. However, the court concluded the buyer did have the necessary information. See id. at 340.

       In Yee v. Guiffre, 176 Wis. 2d 189, 191, 499 N.W.2d 926 ( Ct. App. 1993), the seller demanded the earnest money as part payment for specific performance, which the court in Moritz held permissible. (In Moritz, the contract did not expressly provide the seller with that option, as does the Galatowitsch/Wanat contract.) When the seller in Yee sold the property and abandoned specific performance as a remedy, the buyer claimed that the seller had made an irrevocable election of a remedy, and, because the buyer could not now specifically perform the contract, the seller was limited to the earnest money as liquidated damages. Id. at 193-94. The Yee court addressed the contract provision on the disbursement of the earnest money, which differs from that in the Galatowitsch/Wanat contract, but did not address the buyer-default provision.

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

       In their initial post-trial brief, the Wanats stated "there is no record" of the Galatowitsches directing their broker to return the earnest money. The Galatowitsches in response contended they were prepared at trial to present testimony that Coldwell Banker's attorney had made numerous efforts to return the earnest money to the Wanats without a response from their attorney, but the court did not permit this. In reply, the Wanats asserted the factual propositions that the Galatowitsches did not direct their broker to return the earnest money and the Wanats still had not received it, and the legal position that, having initially elected to request the earnest money, the Galatowitsches could not later amend their complaint to request actual damages. The Wanats did not address the Galatowitsches' assertion that the trial court did not permit them to present evidence on Coldwell Banker's efforts to return the earnest money to the Wanats. Since we do not have the entire record of the trial, we are unable to determine whether the trial court did this, and, if so, why. As the appellants, it is the Wanats' obligation to present us with the record necessary for the resolution of each issue they wish us to decide, and if the record is incomplete we may assume it supports the trial court's ruling. See State v. Heft, 178 Wis. 2d 823, 825, 505 N.W.2d 437 ( Ct. App. 1993).