author: BROWN, J.

text:
    Jeffrey Opichka and Jennifer Opichka, Plaintiffs-Appellants, William F. Breitenstein, Intervening Plaintiff-Appellant, v. Racine County, Defendant-Respondent.
    Court of Appeals

      No. 2005AP1807.

      Submitted on briefs February 17, 2006.

      Decided April 5, 2006.

    2006 WI App 96
    (Also reported in 715 N.W.2d 677.)

      On behalf of the plaintiffs-appellants and intervening plaintiff-appellant, the cause was submitted on the briefs of Rebecca D. Boyle of Fuchs, DeStefanis & Boyle, 5.C. of Milwaukee.

      On behalf of the defendant-respondent, the cause was submitted on the brief of John P. Serketich, assistant corporation counsel of Racine.
    Before Snyder, EJ., Brown and Nettesheim, JJ.
   BROWN, J.

¶ 1. Three Racine County sheriffs deputies requested time off of work as a result of motor vehicle accidents in which they had been involved. The County gave them their paid time off but then asserted a subrogation lien against settlement amounts they recovered from their tortfeasors, reasoning that it had a right to be reimbursed for the benefits it paid. We disagree. The County had no right to reimbursement because it had not "paid" anything. The deputies had earned their time off. The benefits they received were therefore their own property, not extra amounts out of the County's pocket. Accordingly, we reverse the circuit court's judgment in favor of the County and order the County to return the settlement amounts it received from the deputies. We further reject the County's position that it reached a valid accord and satisfaction with two of the plaintiffs, so as to preclude their claims.

BACKGROUND

¶ 2. Neither party disputes the underlying facts in this case. They are as follows. All three plaintiffs are sheriffs deputies employed by the County who had to take time off of work as a result of automobile accidents. In order to receive pay, each of the deputies used some combination of sick leave, donated sick leave, vacation days, and compensatory time. All three subsequently brought suit against their tortfeasors. Jeffrey and Jennifer Opichka reached a settlement with their tortfeasor, and William F. Breitenstein's action also settled.

¶ 3. In both cases, the County demanded part of the proceeds, asserting a subrogation lien based on its payout of the time-off benefits. The Opichkas' attorney paid a total of approximately $332.50 to the County from the settlement proceeds to satisfy the liens asserted against them. Breitenstein placed $25,452.91 of his recovery in escrow to cover the subrogation claim against him. In addition to asserting a lien on the deputies' recovery, the County refused to restore their time-off benefits. The deputies served the County with notices of claim, which the County denied. The Opichkas brought suit against the County, and Breitenstein intervened as an additional plaintiff. Both the deputies and the County moved for summary judgment. The Opichkas also requested that the court order the County to return amounts paid to it.

¶ 4. The deputies maintained that they had two separate rights to recover. First, their collective bargaining agreement gave them a contractual right to take time off in the form of vacation, sick leave, and compensatory time. Second, they had a right to recover from their tortfeasors for the loss of that time. In other words, the accidents caused the deputies to use up time — time to which they were contractually entitled— that they otherwise could have used for other purposes, such as vacation or sick days. They contended that they would not be made whole unless the tortfeasor had to pay for this loss. The County, on the other hand, received an improper double benefit according to the deputies: it not only recovered amounts that it was obligated to pay, it did so while also relieving itself of the obligation to pay future sick time. This zeroing out of their benefits, the deputies argued, violated the terms of their collective bargaining agreement. They maintained that the County could not exercise subrogation rights it had not bargained for during the contract negotiations.

¶ 5. The County rejoined that it was the deputies, not the County, who received a double recovery. It saw the situation as follows: The collective bargaining agreement entitled the deputies to use their vacation, sick leave, and compensatory time off. They requested this time off, and the County gave it to them. In doing so, the County incurred costs, because when one employee takes time off, the County has to pay not only that individual hut also a replacement, usually at a rate of time and one-half. As the County viewed the matter, these deputies wanted to either (1) keep the recovery and retain the same money they already received as paid time off or (2) reimburse the County for the recovery only on the condition that they get their sick time back so they could take the same time off all over again. Such a double recovery would unjustly enrich the plaintiffs.

¶ 6. In addition, the County argued that it had properly exercised subrogation rights pursuant to a county ordinance and a "Human Resources Policy Manual," both of which contained the following language: "If a third party or its insurer may be liable for any losses in which benefits have been paid, the County shall be entitled to be repaid first, and shall have a lien against any recovery by the covered person by the third-party or its insured." The County observed that both sources indicate they apply to workers covered by collective bargaining agreements to the extent that such agreements do not contain contrary terms. The County saw no conflict in this case between its subrogation rights and the deputies' time-off benefits because the plaintiffs had already received those benefits. The County also disagreed that it was obligated to specifically bargain for subrogation rights because they are management rights, which are not subject to mandatory collective bargaining. Finally, the County maintained that as to the Opichkas, there had been an accord and satisfaction when their attorney paid out the $332.50 from the settlement proceeds.

¶ 7. The circuit court held a hearing and ultimately decided in favor of the County. The court concluded that the subrogation ordinance did not affect wages, hours and working conditions because the deputies had gotten paid time off as requested. Thus, it was not in conflict with those agreements and was not subject to mandatory bargaining. The court therefore agreed with the County's position that it had subrogation rights to recoup the amounts it had paid out. The court further held that the plaintiffs were not entitled to have their sick time restored because they had already received their time off. Accordingly, the court held that the County had no obligation to return the amounts it had received from the Opichkas and ordered Breitenstein to pay the sums in escrow to the County. The deputies appeal.

DISCUSSION

¶ 8. We review summary judgment decisions de novo, using the same well-known methodology that the circuit court employs. See Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-23, 241 Wis. 2d 804, 623 N.W.2d 751. We will uphold the circuit court's grant of summary judgment when the prevailing party is entitled to judgment as a matter of law and where no genuine issue of material fact exists. Id., ¶ 24. We also must construe the ordinance. This too presents a legal question for our independent review. Bruno v. Milwaukee County, 2003 WI 28, ¶ 6, 260 Wis. 2d 633, 660 N.W.2d 656 (rules of statutory construction applicable to ordinances). Our interpretation aims to give effect to the legislative intent. See id.; State v. Franklin, 2004 WI 38, ¶ 9, 270 Wis. 2d 271, 677 N.W.2d 276. We begin with the language of the ordinance, and if the meaning is unambiguous, we apply it as written. Bruno, 260 Wis. 2d 633, ¶ 7.

¶ 9. Again, the subrogation ordinance provides: "If a third party or its insurer may be liable for any losses in which benefits have been paid, the County shall be entitled to be repaid first, and shall have a lien against any recovery by the covered person by the third-party or its insured." The meaning of this ordinance is clear. Where the County has paid benefits because of a loss the employee has suffered and the employee receives damages from the third party, the County may assert a lien on the recovery to recoup benefits it paid before the employee recoups his or her loss. Thus, we must ask whether the County paid benefits because of a loss.

¶ 10. The collective bargaining agreement conclusively answers this question. The agreement reads in pertinent part:

12.01 A Deputy will be eligible for vacation with pay in any anniversary year upon the condition that the Deputy has worked fourteen hundred (1400) straight time hours in the preceding anniversary year.
12.03 Each Deputy who has met the eligibility requirements set forth above shall be entitled to vacation with pay in accordance with the following schedule [which lists how many paid'hours of vacation an employee gets after various lengths of service].
14.01 Sick leave is a benefit granted to a Deputy on account of personal sickness or accident disability. Sick leave shall be accumulated at the rate of four (4) hours per bi-weekly pay period, in which a Deputy's absences from work for that pay period do not exceed twenty (20) hours ....

This language demonstrates that an employee shall receive these benefits, which are based on the number of hours of service. In other words, an employee accumulates the benefits by working for them. They are compensation.

¶ 11. Because the paid time off was part of the deputies' earned compensation, the time and money that the County gave them did not result from any loss caused by their accidents. Rather, these benefits were personal property the deputies had purchased by working the requisite number of hours. They had complete autonomy over how they would use these accumulated benefits. For example, they could demand vacation pay for anything from a trip to Acapulco to a quiet day at home in front of the television. Thus, when they requested time off because of their accidents, the County paid them time and money it was already obligated to have available on demand. The County cannot claim a loss for giving the deputies their own property, so it has no right to recover the value of that property from the settlement proceeds.

¶ 12. It is no answer that the County may have paid a replacement worker time and one-half. The County would have incurred that expense regardless of why the deputies used their time off. Had they taken off because of illness or to go somewhere on vacation, the County had no hope of recovering the sick or vacation pay. The result should not change just because a tort-feasor enters the picture. At bottom, the County seeks to turn its employees' misfortunes into a profiteering opportunity. This we will not allow.

¶ 13. Wisconsin and Seventh Circuit precedent supports our holding. In Betterman v. Fleming Cos., 2004 WI App 44, ¶¶ 34-38, 271 Wis. 2d 193,677 N.W.2d 673, this court held that an employer could not offset disability benefits it had distributed to its employee against the wage loss damages it owed him. The court quoted the Seventh Circuit's opinion in E.E.O.C. v. O'Grady, 857 F.2d 383, 391 (7th Cir. 1988). Betterman, 271 Wis. 2d 193, ¶ 37. O'Grady refused to let an employer offset a back pay award with pension benefits it had distributed to the plaintiffs, stating, "[the claimants'] pension benefits may be viewed as earned by the claimants and therefore not paid by the employer at all." See O'Grady, 857 F.2d at 390-91. Betterman held that similarly, Betterman's disability benefits were part of his compensation because they were "part of an overall benefit package which was part of his salary which was intended to attract qualified people to this position." Betterman, 271 Wis. 2d 193, ¶ 38.

¶ 14. Betterman also referenced the court's earlier decision in Salveson v. Douglas County, 2001 WI 100, 245 Wis. 2d 497, 630 N.W.2d 182. Betterman, 271 Wis. 2d 197, ¶ 36. In Salveson, the circuit court had made a finding that the employee's union had negotiated to give up salary increases and other benefits in return for disability pay, such that the disability benefits constituted part of her compensation. Salveson, 245 Wis. 2d 497, ¶ 57. The supreme court accepted that finding, stating that "Salvason earned and essentially paid for the benefits." Id., ¶ 60.

¶ 15. The County attempts to distinguish Salve-son, Betterman, and O'Grady on the basis that the employers in those cases were tortfeasors, whereas the County bears no responsibility whatsoever for the damages the deputies incurred in their accidents. This distinction is without a difference. The key question in those cases and here is who owns the earned benefits, the employer or the employee. We do not see how the County's lack of culpability affects that issue.

¶ 16. Because the deputies owned the time-off benefits, the County's subrogation liens also violate the collective bargaining agreement. The deputies were forced to use their property in a way they did not wish to use it. Instead of saving their sick days for illnesses, they had to use them to recuperate from accident injuries. Similarly, they did not get to use their vacation time for recreation or relaxation. The tortfeasors therefore caused these deputies to lose the value of their bargain. The settlement was supposed to replace that value, but instead, the County insisted on taking it. Essentially, the subrogation liens improperly cancelled part of the negotiated benefits.

¶ 17. We next address the County's contention that the doctrine of accord and satisfaction precludes the Opichkas' claim. The County argues that the Op-ichkas tendered them the $332.50 to settle the dispute and that the County accepted that amount in satisfaction thereof. This check therefore constituted a valid accord and satisfaction in the County's view. The County asserts that because the Opichkas did not request a restoration of their time off until after the County received the check, the request was untimely.

¶ 18. The County relies on Hoffman v. Ralston Purina Co., 86 Wis. 2d 445, 453, 273 N.W.2d 214 (1979), which states that "An 'accord and satisfaction' constitutes a defense to an action to enforce the claim." In Hoffman, the parties had been involved in settlement negotiations and the defendant sent the plaintiff a settlement offer accompanied by a check and credit memorandum. Id. at 452. The plaintiff retained the check without protest for seven months, at the end of which he purported to reject the offer. Id. at 452-53. The court held that Hoffman had, by his silence and retention of the check for an unreasonable amount of time, accepted the settlement. See id. at 458.

¶ 19. The facts of this case differ manifestly from those in Hoffman. In Hoffman, the check Ralston Purina Co. tendered to Hoffman was not only specifically tendered as part of an offer to settle, there were no additional strings attached. Here, the relevant portion of the February 12, 2004 letter from the Opichkas' attorney to the County read,

Enclosed with this letter please find my trust account check no. 2361 made payable to Racine County in the amount of $332.43 which represents the subrogation lien of Racine County for payments made to the Opich-kas for their wage loss as a result of the automobile accident in the case referenced above.

We must read this letter in the context of events that occurred very shortly thereafter. Between February 12 and March 12, when the Opichkas filed their notice of claim, the Opichkas made numerous attempts to have their sick and compensatory benefits restored, and the County declined to do so. We view the letter as, at best, an attempt to compromise with the County. The Opich-kas conceded part of their recovery premised on the belief that the County would restore their time-off benefits. Their repeated demands for reinstatement of their benefits within a reasonable time of tendering the check contrast sharply with Hoffman's apparent acquiescence and lack of protest for seven months. Unlike in Hoffman, the Opichkas' conduct would not have led a reasonable person to believe that a final resolution of the controversy had been reached. There was no accord and satisfaction because the County never accepted the terms of the Opichkas' offer.

CONCLUSION

¶ 20. Once the deputies worked a certain number of hours, their time-off benefits became a property right. When their accident injuries forced them to apply these benefits for an unintended purpose, they lost the benefit of their bargain: paid time off while ill or on vacation. The tortfeasors compensated the deputies for this loss, but then the County asserted subrogation liens to snap up the recovery for itself. The County not only had no right to do so, it also violated the deputies' collective bargaining agreement by its action. Accordingly, we reverse the judgment of the circuit court. The County must return the settlement proceeds it received to the plaintiffs. We also hold that there was no accord and satisfaction with respect to the lien against the Opichkas.

By the Court. — Judgment reversed.

       There were actually two collective bargaining agreements in this case: one applicable to the Opichkas and one to Breiten-stein. All of the relevant provisions, however, are the same. We therefore refer to the agreement in the singular.

       We disagree with the County's position that the subrogation ordinance and policy manual change the result. As we have already indicated, we do not read these sources to allow subro-gation where the County has not paid anything it was not already responsible for. Further, even if we were to do so, such a result would conflict with the collective bargaining agreement by nullifying the County's obligation to pay benefits. Thus, we must view the ordinance and policy manual as default rules that the parties contracted out of. Indeed, both sources indicate that they do not apply to the extent that they conflict with a collective bargaining agreement.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    David Zak and Kim Zak, Plaintiffs-Respondents-Cross-Appellants, v. Jocko Zifferblatt, D.O., Infinity Healthcare Physicians, S.C. and Physicians Insurance Company of Wisconsin, Inc., Defendants-Appellants-Cross-Respondents, Scott Perkl, P.A., Michael J. Cotugno, M.D., St. Vincent Hospital of the Hospital Sisters of the Third Order of St. Francis and Wisconsin Physicians Service Insurance Corp., Defendants, Wisconsin Patients Compensation Fund, Defendant-Cross-Respondent, Sentry Select Insurance Company, Nominal-Defendant.
    Court of Appeals

      No. 2004AP2698.

      Submitted on briefs January 30, 3006.

      Decided April 11, 2006.

    2006 WI App 79
    (Also reported in 715 N.W.2d 739.)

      On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Michael B. Van Sicklen, Roberta F. Howell, and Michael D. Leffel of Foley & Lardner LLP of Madison.
    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Vincent R. Petrucelli of Petrucelli & Petrucelli, PC. of Iron River, Michigan.
    On behalf of the defendant-cross-respondent, the cause was submitted on the brief of Steven P. Means, Roisin H. Bell and Michael A. Hughes of Michael Best & Friedrich LLP of Madison.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Jocko Zifferblatt, D.O.; Infinity Healthcare Physicians, S.C.; and Physicians Insurance Company of Wisconsin, Inc. (collectively the healthcare providers) appeal from a judgment of the circuit court, which ordered damages to David and Kim Zak. The healthcare providers argue the trial court erred when it failed to provide a jury instruction and special verdict question on contributory negligence. They also argue the trial court improperly instructed the jury on causation. Because we hold that the trial court's instructions were not erroneous, we affirm.

¶ 2. The Zaks cross-appeal the judgment of the trial court that reduced the damages awarded pursuant to a statutory cap. The Zaks argue the statutory cap is unconstitutional. We agree and reverse and remand with instructions to reinstate the jury award. The Zaks also argue that a statute that requires payment of future medical expenses awarded to Zak be deposited in an account controlled by the Wisconsin Patients Compensation Fund (the Fund) is unconstitutional. We remand so the parties may comply with the proper procedures for this determination.

BACKGROUND

¶ 3. David Zak severely burned his right arm at work while repairing a car on April 27, 2000. At 1 a.m. on April 28, he awoke shaking with chills, and he took some over-the-counter medicine and went back to sleep. At 6 a.m., he awoke again with similar symptoms and sought medical attention at St. Vincent's Hospital in Green Bay. At the hospital, Zak was examined by physician's assistant Scott Perkl, and Dr. Jocko Ziffer-blatt. Zak's wound was treated, and blood was drawn for testing. Zak was discharged with instructions to contact a doctor if he had any new or severe symptoms.

¶ 4. Between 9:30 and 10 p.m. that night, St. Vincent telephoned Zak to tell him that his blood tests were abnormal, and he needed to return to the hospital. Zak was admitted to the hospital at approximately midnight. It was later discovered that Zak was suffering from severe sepsis, a reaction to a bacterial infection. Due to the sepsis, Zak's bladder was destroyed, which was later reconstructed through surgery, and he suffered other severe medical problems.

¶ 5. The Zaks filed suit against the healthcare providers, claiming that Zak was negligently discharged from the hospital despite evidence of a life threatening infection. At trial, the healthcare providers argued that Zak's condition upon his arrival at the hospital was beyond reprieve, and the administration of antibiotics during Zak's initial visit would not have prevented or reduced Zak's injuries. None of the multiple experts testified that treatment after the initial discharge would have prevented or reduced Zak's injuries.

¶ 6. The healthcare providers contended that Zak's failure to quickly seek medical attention after he was notified of his abnormal blood test results and his failure to properly respond to new symptoms after his discharge contributed to his injury. However, the trial judge refused to instruct the jury to consider whether Zak's post-treatment conduct constituted contributory negligence. The court also did not include a contributory negligence question on the special verdict form. When the court instructed the jury, it gave the model jury instruction, which included the legal standard for causation in a medical malpractice case. The jury awarded the Zaks damages.

¶ 7. After the jury's verdict, all parties filed post-trial motions. The healthcare providers argued the court erred when it refused to give a contributory negligence instruction. They also claimed the wording of the causation standard in the jury instruction given was improper. Finally, they moved to reduce the amount of the noneconomic award made to the Zaks pursuant to the statutory cap. The Zaks contended the statutory cap should not reduce the jury award, and the portion of the jury's award in excess of $100,000 for future medical and hospital expenses should not be paid into a medical expense fund as required by statute.

¶ 8. The court denied the healthcare providers' motions regarding the contributory negligence instruction and the causation issue, but reduced the award pursuant to the cap. It also rejected the Zaks' arguments regarding the statutory damage cap and the medical expense fund. After the court's rulings on the motions, judgment was entered.

DISCUSSION

I. The Healthcare Providers' Appeal

A. Jury Instruction on Contributory Negligence

¶ 9. The healthcare providers contend the trial court erred when it rejected their request that the special verdict contain a question regarding Zak's contributory negligence and an instruction on contributory negligence. A trial court has wide discretion in framing the special verdict, Runjo v. St. Paul Fire & Marine Ins. Co., 197 Wis. 2d 594, 602, 541 N.W.2d 173 (Ct. App. 1995), and determining what jury instructions to give. Anderson v. Alfa-Laval Agri, Inc., 209 Wis. 2d 337, 344, 564 N.W.2d 788 (Ct. App. 1997). However, both the special verdict and jury instructions given must fully and fairly inform the jury regarding the applicable principles of law. Runjo, 197 Wis. 2d at 602; Anderson, 209 Wis. 2d at 345. We review independently whether a jury instruction is appropriate under the specific facts of a given case. Schwigel v. Kohlmann, 2005 WI App 44, ¶ 9, 280 Wis. 2d 193, 694 N.W.2d 467.

¶ 10. The healthcare providers argue they were entitled to a contributory negligence jury instruction under Brown v. Dibbell, 227 Wis. 2d 28, 595 N.W.2d 358 (1999). In Brown, we defined contributory negligence as "conduct by an injured party that falls below the standard to which a reasonably prudent person in that injured party's position should conform for his or her own protection and that is a legally contributing cause of the injured party's harm." Id. at 41. "Contributory negligence as a cause-in-fact of injury is judged by the same 'substantial factor' test as a defendant's negligence." Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 736, 275 N.W.2d 660 (1979). Under the substantial factor test:

A plaintiff in a negligence action carries a twofold burden of proving causation. First, the plaintiff has the burden of producing evidence, satisfactory to the judge, from which a jury could reasonably find a causal nexus between the negligent act and the resulting injury. If the plaintiff fails to meet this burden, the plaintiff has failed to establish a prima facie issue of causation and the defendant is entitled to a directed verdict. Second, if the plaintiff meets the burden of production and the causation question is submitted to the jury, the plaintiff has the burden of persuading the jury that the negligence in fact caused the injuries.

Fischer v. Ganju, 168 Wis. 2d 834, 857, 485 N.W.2d 10 (1992). In Connar v. West Shore Equip., 68 Wis. 2d 42, 45, 227 N.W.2d 660 (1975), the supreme court stated: "Only one question must be affirmatively answered by the trial judge before submitting a negligence question to the jury: Is there evidence of conduct which, if believed by the jury, would constitute negligence on the part of the person or other legal entity inquired about." Thus, the healthcare providers assert, a contributory negligence instruction was warranted because a reasonable jury could find that Zak was contributorily negligent based on his conduct following his discharge.

¶ 11. We reject the healthcare providers' argument because no expert evidence was presented that any delay in Zak's return to the hospital contributed to his injury. The healthcare providers note that there was expert testimony that "hours are very crucial" when treating severe sepsis. However, the healthcare providers fail to acknowledge that this statement was in the context of the initial discharge. No expert evidence was presented that, had medical treatment been administered after his initial discharge, Zak's injuries would have been affected. Contributory negligence requires that Zak's conduct must be a "legally contributing cause" of his harm. Here, the healthcare providers failed to present expert evidence that there was a causal nexus between Zak's actions and his injuries. Thus, it was within the trial court's discretion to refuse to give the contributory negligence instruction to the jury.

¶ 12. The healthcare providers counter that requiring them to provide expert testimony on this issue is unsupported by Wisconsin law. Relying primarily on Ehlinger v. Sipes, 155 Wis. 2d 1, 454 N.W.2d 754 (1990), they contend there was sufficient evidence for the jury to conclude that Zak's conduct was a substantial factor contributing to his injury. In Ehlinger, the parents of premature twins who suffered birth defects brought a negligence claim against their doctors and others, arguing that failing to diagnose the multiple pregnancy was a substantial factor in the twins' injuries. Id. at 5. Our supreme court held that an expert's testimony that an earlier diagnosis could have increased the chance of a full-term pregnancy was sufficient to meet the required burden of production for causation. See id. at 20-22. The court noted:

[T]o require a plaintiff in a case of this type to prove what more probably than not would have happened had the defendant not been negligent would require ... expert testimony by a physician speculating as to the success of a particular treatment, a fact which inherently is incapable of proof to a reasonable certainty.... [A]ll that is required is that the plaintiff establish that the proper treatment could have lessened or avoided the plaintiffs harm.

Id. at 19-22 (emphasis in original).

¶ 13. Here, the healthcare providers err with their suggested application of Ehlinger to these facts. They state that the contributory negligence instruction should have been given because, like the parents in Ehlinger, they have offered some evidence from which the jury could reasonably infer Zak's conduct was a substantial factor contributing to his injury. Again, the healthcare providers point to expert testimony that hours make a difference when dealing with severe sepsis, and again we note that testimony was in the context of the initial discharge, not the timing of Zak's return to the hospital. The healthcare providers failed to present evidence that Zak's alleged tardiness in seeking additional medical attention after he was initially discharged affected his injury.

B. Jury Instruction on Causation

¶ 14. The healthcare providers next contend the trial court improperly instructed the jury on causation. The court instructed the jury on causation as follows:

A person's negligence is a cause of a plaintiffs injury if the negligence was a substantial factor in producing the present condition of the plaintiffs health. This question does not ask about the cause but rather a cause. The reason for this is that there can be more than one cause of an injury. The negligence of one or more persons can cause an injury or an injury can be the result of the natural progression of the condition ....
If you conclude from the evidence that the present condition of David Zak's health was caused jointly by either doctor's negligence and also the natural progression of David Zak's condition, then you should find that the doctors' negligence was a cause of David Zak's present condition of health.

Arguing that the term "substantial factor" in the jury instruction was ambiguous, the healthcare providers state, "This instruction allowed the jury to speculate that, even if Dr. Zifferblatt's negligence was less than a substantial cause of Mr. Zak's condition, the jury could find that the doctor caused the injury."

¶ 15. We disagree with the healthcare providers that the causation instruction was improper. First, the trial court's instruction uses equivalent language to the model jury instruction. WIJI — Civil 1023 (2004). While the healthcare providers correctly point out that the model jury instructions are not precedential authority, we give them their due weight as persuasive authority. See Runjo, 197 Wis. 2d at 604. Further, we simply do not think that substantial factor is a vague term. We are confident that a reasonable person would not understand substantial factor to mean that even if medical negligence was less than a substantial cause of Zak's condition, the jury could find the doctor caused the injury. That is, a reasonable jury would not interpret "substantial factor" to mean "less than a substantial factor." Also, no Wisconsin case law has held that substantial factor must be defined in any greater detail than the model jury instruction. The meaning that the instruction communicates as a whole was a correct statement of the law.

II. The Zaks' Cross-appeal

A. Statutory Cap on Noneconomic Damages

¶ 16. The Zaks contend the trial court erred when it reduced the damages awarded pursuant to Wis. Stat. §§ 655.017 and 893.55(4). The Zaks argue Wisconsin's medical malpractice statutory framework violates their constitutional rights. We review challenges to the constitutionality of a statute without deference to the decision of the circuit court. State v. Bertrand, 162 Wis. 2d 411, 415, 469 N.W.2d 873 (Ct. App. 1991).

¶ 17. After the trial court's judgment, this issue was directly addressed by our supreme court in Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440. In Ferdon, a minor, through the minor's guardian ad litem, brought a medical malpractice action against the minor's delivery doctor, hospital and the Wisconsin Patients Compensation Fund for injuries during birth resulting in the minor having a partially paralyzed and deformed right arm. Id., ¶ 2. After a jury awarded $700,000 in noneconomic damages for past and future injuries and $403,000 for future medical expenses, the trial court reduced the award pursuant to the statutory cap. Id., ¶¶ 2, 4. In its opinion, the supreme court wrote, "We hold that the $350,000 cap (adjusted for inflation) on noneconomic medical malpractice damages set forth in Wis. Stat. §§ 655.017 and 893.55(4)(d) violates the equal protection guarantees of the Wisconsin Constitution." Id., ¶ 10. Applying Ferdon, the Zaks' constitutional rights were violated when the damages were reduced, and we reverse and remand for further proceedings consistent with our holding.

¶ 18. The healthcare providers argue that Ferdon should not be applied retroactively to this case. We reject that argument because the Zaks raised their constitutional challenge in the circuit court and preserved it for appellate review. See Olson v. Augsberger, 18 Wis. 2d 197, 201, 118 N.W.2d 194 (1962) (a judgment under attack at the time the controlling decision was rendered is entitled to receive the benefits of the new rule announced in the decision). We are bound by controlling precedent on an issue properly raised in this court. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997).

B. Future Medical Expenses Fund

¶ 19. The Zaks also contend the provisions of Wis. Stat. § 655.015, which require that payment of future medical expense payments awarded to Zak in excess of $100,000 be deposited in an account controlled by the Fund, are unconstitutional. Section 655.015 provides:

If a settlement or judgment under this chapter resulting from an act or omission that occurred on or after May 25, 1995, provides for future medical expense payments in excess of $100,000, that portion of future medical expense payments in excess of an amount equal to $100,000 plus an amount sufficient to pay the costs of collection attributable to the future medical expense payments, including attorney fees reduced to present value, shall be paid into the fund. The commissioner shall develop by rule a system for managing and disbursing those moneys through payments for these expenses, which shall include a provision for the creation of a separate accounting for each claimant's payments and for crediting each claimant's account with a proportionate share of any interest earned by the fund, based on that account's proportionate share of the fund. The commissioner shall promulgate a rule specifying the criteria that shall be used to determine the medical expenses related to the settlement or judgment, taking into consideration developments in the provision of health care. The payments shall be made under the system until either the account is exhausted or the patient dies.

Wisconsin Admin. Code § Ins 17.26 (Oct. 2005) designates proper administration of the accounts.

¶ 20. The healthcare providers contend that the Zaks' challenge to Wis. Stat. § 655.015 and its accompanying rule have been waived because the Zaks failed to follow the procedure for challenging an administrative rule set forth in Wis. Stat. § 227.40. The Fund contends that this court does not have jurisdiction to uphold the Zaks' challenge to the statute due to the Zaks' failure to follow the proper procedure. The Zaks do not dispute that they failed to follow the proper procedure, but argue waiver on the part of the healthcare providers and the Fund when they did not raise this issue before the circuit court made its initial ruling. Again, we turn to Ferdon.

¶ 21. In Ferdon, the parties also challenged the constitutionality of Wis. Stat. § 655.015 and the administrative rule implementing it. Ferdon, 284 Wis. 2d 573, ¶ 12. And, like this case, the parties failed to adhere to the procedures set forth in Wis. Stat. § 227.40. Id. The court remanded the question to the circuit court for the parties to comply with § 227.40 and to address the validity of the administrative rule and the constitutionality of the statute and the rule. Id. In light of Ferdon, we do the same.

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

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

       Like the party challenging the constitutionality of the caps in Ferdon, the Zaks make several constitutional arguments beyond equal protection. The supreme court specifically declined to address those other arguments, so we do not address them here. Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, ¶ 10, 284 Wis. 2d 573, 701 N.W.2d 440.


author: HOOVER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Sean M. Daley, Defendant-Appellants.

    Court of Appeals

      No. 2005AP48-CR.

      Submitted on briefs October 24, 2005.

      Decided April 11, 2006.

    2006 WI App 81
    (Also reported in 716 N.W.2d 146.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kirk B. Obear of Law Offices of Barry S. Cohen, S.C. of Elkhart Lake.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 6-14-06.

   HOOVER, EJ.

¶ 1. Sean Daley appeals a judgment of conviction for second-degree recklessly endangering safety and misdemeanor disorderly conduct, as well as an order denying his motion for plea withdrawal. Daley argues that the deferred prosecution agreement that resulted in his conviction was statutorily infirm and the conviction therefore cannot be maintained. He also contends that he should have been allowed to withdraw his plea. We disagree and affirm the judgment and order.

Background

¶ 2. According to the August 3, 2001 complaint, Daley was arrested for recklessly endangering safety after pointing a loaded gun at his girlfriend. The disorderly conduct charge was added because he was swearing at his girlfriend and throwing her belongings outside. On February 7, 2002, Daley pled not guilty.

¶ 3. Negotiations with the State led to a deferred prosecution agreement in which Daley would plead no contest to the two charges, but the case would be suspended and entry of the judgment of conviction would be stayed. If Daley complied with the agreement, the State would move to dismiss the charges. On January 13, 2003, the trial court approved the agreement, Daley entered his new plea, and filed a plea questionnaire and waiver of rights form. Pursuant to the agreement, the trial court did not enter a judgment of conviction upon Daley's plea but suspended proceedings.

¶ 4. In August 2003, the State petitioned for termination of the deferred prosecution agreement after Daley allegedly engaged in further criminal activity, including another domestic incident, contrary to the agreement's terms. At the hearing in May 2004, the court found that Daley violated the agreement and, after revoking the agreement, found Daley guilty of the two initial charges. Sentencing was scheduled for a later date.

¶ 5. On July 14, 2004, Daley moved to "vacate" his no contest plea, but the court denied the motion. On August 27, Daley moved to vacate the finding of guilt, but the court denied that motion too. At the sentencing hearing, the court withheld sentence and gave Daley three years' probation on each count with the probation terms running concurrently. Daley appeals.

Discussion

Deferred Prosecution Agreement

¶ 6. Daley's first argument on appeal is that the deferred prosecution agreement fails to comply with Wis. Stat. § 971.37. Whether the agreement conforms to the statute presents us with a statutory interpretation question, which we review de novo. See State v. DeLain, 2005 WI 52, ¶ 11, 280 Wis. 2d 51, 695 N.W.2d 484.

¶ 7. Daley argues the agreement violates Wis. Stat. § 971.37(4), which states, in relevant part, "Mon-sent to a deferred prosecution under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime ...." He argues "the statute would be rendered meaningless if a deferred prosecution agreement cannot be construed as an admission of guilt [but] at the same time an agreement may require an admission of guilt." We disagree.

¶ 8. The language of Wis. Stat. § 971.37(4) plainly means that should a deferred prosecution agreement be revoked, the defendant's willingness to enter the agreement may not be admitted at trial as evidence of guilt. Put another way, a deferred prosecution agreement may not be used to demonstrate a defendant's consciousness of guilt. When a deferred prosecution agreement requires a defendant to enter a plea as a condition, it is the plea itself and not the agreement that constitutes the acknowledgement of guilt. Indeed, if the agreement is dissolved, the plea remains.

. ¶ 9. Daley implies that requiring a plea is not allowed because it is not specifically authorized in Wis. Stat. § 971.37. However, the legislature plainly contemplated that parties would negotiate appropriate conditions in a deferred prosecution agreement commensurate with the individual facts of each case. While § 971.37(lm)(b) specifies certain components that shall be in a deferred prosecution agreement, there is no indication these are to be the sole components. Indeed, § 971.37(lm)(c)l indicates that the agreement may require payment of the domestic abuse surcharge. This indicates the legislature never intended § 971.37(lm)(b) to be exclusive.

¶ 10. Daley also contends the agreement violated Wis. Stat. § 971.37(2), which states, "The written agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement." He contends this section means the State is not allowed "to obtain a conviction in the event that the agreement is terminated.... [T]he process of conviction must occur subsequent to the resumption of the prosecution, not as a direct result of the resumption of the prosecution."

¶ 11. We point out first that whenever a deferred prosecution agreement is revoked and a conviction results, that conviction is both subsequent to and a direct result of the resumption of the prosecution. If prosecution had not resumed, the charge would have been dismissed. See Wis. Stat. § 971.37(3).

¶ 12. More importantly, however, we conclude that prosecution in this case did resume. Prosecution of Daley's case was suspended after the court ascertained his plea was knowing, intelligent, and voluntary but before the court accepted the plea and used it to adjudicate Daley guilty. When the deferred prosecution agreement was revoked, prosecution resumed and the court continued where the case left off, accepting the plea, finding Daley guilty, and entering the judgment of conviction.

¶ 13. Contrary to Daley's argument that it is bad policy to allow the State to require a plea as part of a deferred prosecution agreement, such policy is actually quite efficient. Requiring a plea allows the State to avoid trial but still allows the defendant to avoid the conviction if he or she complies with the agreement. In that sense, it provides an even greater benefit to a defendant than a traditional plea agreement, provided the defendant fulfills the agreement's terms.

Plea Withdrawal

¶ 14. The standard for evaluating a plea withdrawal motion depends on whether the motion comes before or after the defendant has been sentenced. Prior to sentencing, a defendant's motion "should be freely allowed if the defendant presents a 'fair and just reason' to justify the withdrawal." State v. Timblin, 2002 WI App 304, ¶ 19, 259 Wis. 2d 299, 657 N.W.2d 89 (citation omitted). If the motion is brought after sentencing, the defendant "carries the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice." State v. Fosnow, 2001 WI App 2, ¶ 7, 240 Wis. 2d 699, 624 N.W.2d 883 (citation omitted). In either case, however, the ultimate decision whether to allow withdrawal is committed to the trial court's discretion, meaning we will not reverse the court's decision unless it is clearly erroneous. See State v. Spears, 147 Wis. 2d 429, 434, 433 N.W.2d 595 (Ct. App. 1988).

¶ 15. Although the parties have not so suggested in their briefs — indeed, they argued the case under the presentence standard — there is a question as to whether Daley's motion was before or after sentencing. This presents a question of law. State v. Barney, 213 Wis. 2d 344, 353, 570 N.W.2d 731 (Ct. App. 1997).

¶ 16. It is true that sentencing, as it is commonly understood, did not occur until after the trial court denied the motion for plea withdrawal, revoked the deferred prosecution agreement, and entered the judgment of conviction against Daley based on his underlying no contest plea. However, prior case law compels the conclusion that "sentencing," when a deferred prosecution agreement is involved, encompasses the initial disposition of the case after the parties enter the agreement and the agreement is ratified by the trial court. See id. at 354.

¶ 17. In Barney, the defendant pled guilty to second-degree sexual assault of a child. Under the plea agreement, however, Barney would not be immediately convicted of the assault but would be subject to a two-year "diversion agreement." Id. at 349. While Barney does not specify the statutory authority for the diversion agreement, it was arguably the deferred prosecution agreement statute in effect at the time because: (1) entry of the agreement preceded the actual judgment of conviction and deferred the judgment's entry, pending Barney's satisfactory completion of the agreement; and (2) if Barney completed the agreement, the charge would be dismissed with prejudice. Both conditions are present in Daley's agreement.

¶ 18. In Barney, 213 Wis. 2d at 354-55, we stated:

Barney's motion to withdraw his plea came only after the State had moved to revoke the diversion agreement. Barney thus knew when he sought withdrawal of his plea that he was facing a stiffer punishment for the felony offense than he originally contemplated when he entered the guilty plea. The higher burden of the "manifest injustice" standard is thus appropriate, since it is a deterrent to "defendants testing the waters for possible punishments" and acting out of " 'disappointment in the eventual punishment imposed.'" [State v.] Nawrocke, 193 Wis. 2d [373] at 379-80, 534 N.W.2d [624] at 626 [Ct. App. 1995] (quoted source omitted).
We conclude that the court's acceptance and ordered implementation of the diversion agreement constituted "sentencing" for purposes of determining the standard to be applied in deciding Barney's motion to withdraw his guilty plea.. ..
... ”[M]anifest injustice" is the appropriate standard by which we must measure Barney's request to withdraw his plea following the approval and implementation of the diversion agreement.

The same rationale applies here: acceptance and ordered implementation of the deferred prosecution agreement constitutes sentencing for purposes of determining which standard to apply. We thus apply the manifest injustice standard in reviewing Daley's motion for plea withdrawal.

¶ 19. We would normally be reluctant to decide a case on an argument the parties have not briefed. However, the "fair and just reason" standard for plea withdrawal is a more lenient standard than "manifest injustice." Because we are not convinced that Daley would have succeeded under the lower standard, he cannot prevail under the higher standard. Indeed, manifest injustice "is rooted in concepts of constitutional dimensions" and "requires the showing of a serious flaw in the fundamental integrity of the plea." State v. Krieger, 163 Wis. 2d 241, 252, 471 N.W.2d 599 (Ct. App. 1991).

¶ 20. Here, Daley's motion asserted only his belief of his own innocence as a basis for the withdrawal. Daley also raised other issues at the motion hearing through an untitled "exhibit" filed with the trial court, contending he was dissatisfied with his attorney and that he felt he had no option but to take the plea agreement. None of this, however, rises to the level of manifest injustice. The court determined that Daley offered "too little, too late," and for the reasons that follow, we agree.

¶ 21. First, an assertion of innocence is an important factor, but it is not dispositive. State v. Leitner, 2001 WI App 172, ¶ 25, 247 Wis. 2d 195, 633 N.W.2d 207. Such argument need not be deeply pursued by the court on a motion after sentencing. See State v. Booth, 142 Wis. 2d 232, 238, 418 N.W.2d 20 (Ct. App. 1987).

¶ 22. Second, the court noted that during the plea colloquy it inquired whether Daley was satisfied with his representation. He indicated he was satisfied and did not request new counsel. See State v. Morse, 2005 WI App 223, ¶ 11, 287 Wis. 2d 369, 706 N.W.2d 152 (defendant's postconviction position, when contrary to position at colloquy, does not make us suspect plea's voluntariness).

¶ 23. Third, when Daley indicated some hesitation and reluctance to enter the plea, the court told Daley it was not trying to "steamroll" him and offered to adjourn the plea hearing. Daley declined, instead indicating he wanted to "get it over with."

¶ 24. Finally, the court noted that at no time between January 2003, when the deferred prosecution agreement was entered, and May 2004, when the agreement was revoked, did Daley seek to withdraw his plea. Rather, he waited until he faced the possibility of a prison sentence to cry foul. The court is entitled to consider such a delay in its determination. Cf. Leitner, 247 Wis. 2d 195, ¶ 33 (defendant waited until presen-tence investigation written, filing withdrawal motion when report was unfavorable); State v. Kivioja, 225 Wis. 2d 271, 299, 592 N.W.2d 220 (1999) (timing of a recantation, days after a sentence imposed but sixteen months after initial statement, "seriously depreciates" recantation's reliability); Nawrocke, 193 Wis. 2d at 379-80 (higher burden of proof applies as "deterrent to defendants testing the waters for possible punishment"). Ultimately, Daley has simply made no claims that approach the manifest injustice standard. Plea withdrawal would he inappropriate.

By the Court. — Judgment and order affirmed.

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

       This case is not similar to State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12. There, as part of a plea agreement, the State agreed to reopen Dawson's judgment of conviction and amend a charge of first-degree sexual assault of a child if Dawson successfully completed probation. Id., ¶ 2. We allowed Dawson to withdraw his plea as unknowing because he had agreed to a legal impossibility. Id., ¶ 14. The State has no authority to reopen a judgment and the only legal reward for completing probation is discharge. Id., ¶¶ 9, 14. Here, Daley's deferred prosecution agreement is permissible under the statute and the agreement's completion does not present a legal impossibility.

       Although this is by no means an exhaustive list, examples of manifest injustice include the following:
      (1) ineffective assistance of counsel; (2) the defendant did not personally enter or ratify the plea; (3) the plea was involuntary; (4) the prosecutor failed to fulfill the plea agreement; (5) the defendant did not receive the concessions tentatively or fully concurred in by the court, and the defendant did not reaffirm the plea after being told that the court no longer concurred in the agreement; and, (6) the court had agreed that the defendant could withdraw the plea if the court deviated from the plea agreement.

        State v. Krieger, 163 Wis. 2d 241, 251 n.6, 471 N.W.2d 599 (Ct. App. 1991). Daley did not allege his plea was unknowing, unintelligent, or involuntary.


author: CURLEY, J. FINE, J.

text:
    Sylvia A. Shovers, Plaintiff-Appellant, v. Gary D. Shovers, Defendant-Respondent.
    Court of Appeals

      No. 2005AP706.

      Oral argument January 3, 2006.

      Decided April 11, 2006.

    2006 WI App 108
    (Also reported in 718 N.W.2d 130.)

      Fine, J., concurs.
    On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Gary A. Ahrens and Jacquelyn A. Champagne of Michael Best & Friedrich LLP, of Milwaukee, with oral argument by Gary A. Ahrens.

      On behalf of the defendant-respondent, the cause was submitted on the brief of Howard A. Pollack, Michael B. Apfeld and William E. Duffin of Godfrey & Kahn, S.C., of Milwaukee, with oral argument by Michael B. Apfeld.
    Before Wedemeyer, EJ., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Sylvia A. Shovers (Sylvia) appeals the trial court's grant of summary judgment to her son Gary D. Shovers (Gary), on the ground that she lacked standing in her action seeking a declaratory judgment that her husband, Harold Shovers, died owning fifty shares of Sorefs Carpet City, Inc. (Sorefs). Sylvia contends that she has standing to seek declaratory relief because she has an equitable interest in the assets of her husband's estate under their joint will, and "an interest that Sorefs shares be declared part of the assets of Harold's estate based on her right to elect deferred marital property." Based on the assumption that she does have standing, Sylvia contends that the competent evidence shows that Harold died owning fifty shares of Sorefs, because: (1) the dead man's statute bars Gary from testifying about transactions with Harold; (2) a 1993 agreement, allegedly setting forth a transfer of the shares from Harold to Gary, by itself, is insufficient; and (3) Gary never paid Harold the consideration cited in the 1993 agreement. As a result, Sylvia asks this court to reverse the trial court's order dismissing her claim and award her summary judgment.

¶ 2. Because we conclude that the trial court did not err in concluding that Sylvia lacked standing, we do not address Sylvia's remaining arguments and affirm the-grant of summary judgment to Gary.

I. Background.

¶ 3. Harold died on September 1, 2001. At the time of his death, Harold had been married to Sylvia for more than fifty years. They had three children: Gary, Judith and Bradley Shovers.

¶ 4. In 1963, Harold and Al Soref founded Sorefs Carpet City, Inc. Harold and Al each paid $9,000 for fifty of the authorized 100 shares, each thus owning half of the company's shares. Harold became the president of Sorefs. While in high school, Gary started working at Sorefs and is the only one of Harold and Sylvia's three children who ever worked at Sorefs full-time.

¶ 5. In 1975, as a result of a falling-out between Harold and Al, Harold convinced Al to sell his shares to Gary. Pursuant to an agreement, handwritten by Harold and dated December 31, 1975, Gary purchased Al's shares for $55,425. Al signed the assignment form on the reverse of his original stock certificate, and thereby officially assigned his shares to Gary. Gary became the secretary/treasurer of Sorefs.

¶ 6. Harold and Gary worked together until 1984, when Harold withdrew as an official employee due to health problems, leaving Gary in charge of Sorefs; however, Harold maintained an interest in the business. In 1993, Gary was gone for one week, apparently leaving Harold temporarily in charge of the business. When Gary returned, the employees at Sorefs told him that problems had arisen with Harold and they threatened to quit. Gary suggested to his father, who was then seventy-five years old and suffering from multiple health problems, that he retire from the business and allow Gary to buy him out.

¶ 7. According to Gary, the discussion resulted in a written agreement for the sale of Harold's fifty shares of Sorefs stock to Gary. The agreement is dated May 6, 1993, signed by Harold and notarized by Attorney J. Patrick Ronan. The agreement provides in relevant part:

I, HAROLD J. SHOVERS,. .. hereby sell my fifty (50) shares of SOREF'S CARPET CITY, INC. stock to my son, GARY D. SHOVERS .. . for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, already granted to BRADLEY T. SHOVERS and JUDITH SHOVERS adequately providing for each of them financially.
After completion of this agreement, GARY D. SHOV-ERS will own one hundred (100) shares of SOREF['S] CARPET CITY, INC. stock. As a result, GARY D. SHOV-ERS will be the One Hundred percent (100%) owner of SOREF'S CARPET CITY, INC.
This Agreement takes effect immediately upon the date the agreement is executed by HAROLD J. SHOV-ERS.

(Footnote added.)

¶ 8. According to Gary, he and his father further agreed that, as additional consideration, Harold would receive United States treasury bearer bonds in the amount of approximately $350,000. Gary claims the bonds were delivered to Harold in Sylvia's presence. The assignment form on the reverse of Harold's original stock certificate was not filled out, but the certificate bears a stamp that reads: "CANCELLED." A new stock certificate was apparently not issued. It appears as though Harold never came back to Sorefs after May of 1993.

¶ 9. Harold, as mentioned, died on September 1, 2001. Harold and Sylvia prepared at least two joint wills, one dated September 16, 1999, and one dated October 14,2000. The 1999 will makes specific bequests of particular securities. The 2000 will does not provide such specific bequests, but contains a residuary provision that reads, "all remaining assets of our estate go to Sylvia, or if Sylvia predeceases Harold, Sylvia's remaining assets go to Harold." Neither will contains any mention of Sorefs stock. Neither will has been probated.

¶ 10. Nearly one year after her husband's death, Sylvia demanded by letter dated July 31, 2002, that she be allowed to inspect Sorefs corporate records. After not receiving a response, Sylvia filed suit against Sorefs on August 27, 2002, alleging that, under the residuary provision of the joint will, she "inherited all of her late husband's stock in [Sorefs] and therefore is the owner, or the beneficial owner, of that stock." The complaint alleged that Sylvia was vice-president of Sorefs, and that at the time of his death Harold owned all, or substantially all, of Sorefs. Sylvia "demand[ed] judgment ordering defendant to allow her to inspect and copy defendant's record of shareholders, including but not limited to, its shareholder list and its stock transfer records ...

¶ 11. In a letter dated October 7, 2002, Sorefs denied Sylvia's request, explaining that she had no right to inspect the records because she was not a shareholder. Sorefs enclosed copies of the 1993 stock sale agreement, Harold's cancelled stock certificate, and the most recent annual report, according to which Gary was president, vice president, secretary, treasurer, and the only member of the board of directors. Sorefs repeated the same position in its answer to the complaint filed February 3, 2003.

¶ 12. Apparently unaware of the 1975 and 1993 stock sale agreements, Sylvia responded by claiming that the agreements were not authentic and hired four handwriting experts to prove it. The originals of both agreements were produced and the experts were allowed to inspect them. Three of the experts withdrew after the inspection, thereby apparently conceding their authenticity, and the fourth concluded that the signatures were authentic but that the 1993 agreement was signed closer to December than May. Sylvia herself admitted that her late husband's signature on the 1993 agreement looked authentic.

¶ 13. Sorefs filed a motion for summary judgment arguing that there was no longer an issue as to the authenticity of the 1993 agreement.

¶ 14. Sylvia filed a cross-motion for summary judgment, claiming that Sorefs cannot rely on the 1993 agreement to establish Gary as the sole owner because no consideration was paid to Harold, and that as a residuary beneficiary of her husband's will, she has shareholder status and is entitled to inspect Sorefs corporate records.

¶ 15. Sorefs responded, arguing that: there is no genuine issue as to the authenticity of the 1993 agreement; whether Harold received consideration is immaterial because it could have been a gift, and even so, Harold received consideration in the form of bearer bonds; Sylvia's point is moot because she already inspected the corporate records; and Sylvia lacks standing because she is claiming that she inherited the stock under the residuary clause of a will that has yet to be probated, and grandchildren, not Sylvia, were to receive the first $675,000 of the estate's assets.

¶ 16. Sylvia filed a reply arguing, among other things, that: nothing indicates that the transfer was a gift and her marital property interest in the stock would have precluded such a gift without her consent; and she has standing under the joint will as Harold's residuary beneficiary.

¶ 17. Soon thereafter, albeit nineteen months after the original complaint, and more than a year after the deadline to amend pleadings, Sylvia filed a motion for leave to amend the complaint to join Gary as an additional party. Gary responded by arguing, among other things, that: the claim is moot because Sylvia had already received the relief she requested; and the will under which she claims ownership has not been admitted to probate.

¶ 18. On April 7, 2004, the trial court ruled that the only way the case could go forward would be through a marital property claim under Wis. Stat. § 766.70(6) (2003-04) if Sylvia could show that the stock had "morphed into" marital property, that is, "if she can show that her time, skill, effort, managerial assistance [etc.] transformed this predetermination property into marital property ...The court allowed the amendment, making Gary the named defendant and dismissing the case against Sorefs. On May 4, 2004, the court issued an order granting Sylvia "leave to file an amended complaint adding Gary Shovers as the defendant to this action in order to assert a claim under the Marital Property Act as discussed by the Court on the record in its oral decision." The court denied the motions in all other respects.

¶ 19. Despite the order limiting her claim to the Marital Property Act, Sylvia nonetheless filed an amended complaint, demanding judgment pursuant to her residual legatee status, declaring that she is the owner of a minimum of fifty percent of the shares of Sorefs stock issued to Harold in 1963 and requiring that Gary transfer those shares to her.

¶ 20. Gary filed an answer arguing, among other things, that Sylvia's declaratory judgment claim to Sorefs stock, based upon her alleged ownership, was precluded by the trial court's May 4, 2004 order.

¶ 21. A hearing was held on September 27, 2004, at which Sylvia sought leave to submit a report by a new expert questioning the authorship of the 1993 agreement. Although apparently unconvinced of its relevance, the court allowed the submission of the report. On November 3, 2004, Sylvia changed her focus, however, and filed a motion in limine to bar Gary from testifying about any transaction with Harold for the transfer of Sorefs stock, on grounds that Gary is not a competent witness under the dead man's statute. Wis. Stat. § 885.16.

¶ 22. Gary responded by filing a motion for summary judgment. Sylvia filed a brief in opposition to Gary's motion, arguing that she should be awarded summary judgment instead. She again maintained that Harold died owning fifty percent of Soref s shares, and that she, as a legatee, has a claim to them,, among other things, because the dead man's statute bars Gary from testifying about the 1993 agreement. In addition, she expressly noted in a footnote that she would not pursue any claims based on the Marital Property Act, despite the earlier limitation imposed by the trial court permitting only a claim under Wis. Stat. ch. 766.

¶ 23. On January 31, 2005, the court conducted a hearing on the various motions. Echoing its previous ruling that Sylvia's standing was premised upon her showing that the stock morphed into marital property, the court concluded that because she had withdrawn her marital property claim, she no longer had standing to proceed.

Now the withdrawal of the marital property claim, in my mind, leaves her action as to him nonexistent ....
[T]he estate has the basis to determine whether or not the ownership of this stock is involved by it as to be part of the residual estate. Only after that is determined is there going to be an interest whereby she can proceed. The estate was not a party to this action, one could have been, could have been a special administration, could have actually had the estate processed. It wasn't. I can't recreate that. I won't.
This is an adversarial procedure, and unfortunately or fortunately, depending on how you want to look at it, I guess, her claim that remained as of this juncture was one of a marital interest claim. Now she's withdrawn that....

¶ 24. Noting that the question of whether the stock should be part of the residual estate would have to be addressed in an action by the estate, not one by Sylvia as a "potential legatee," the court refused to make a determination as to the ownership of the stock.

I am not going to get into determination of his ownership because that technically is not before me. What is before me is whether or not Mrs. [Shovers] had a claim, and she does not any longer based upon the Court's ruling and determination that there is nothing now before it as a matter of law as to her claim in this matter based on marital interests, and as far as whether or not this stock should be part of the residual estate is one that would rest with an action if appropriate by the estate not by her as a potential legatee under the circumstances of the record now before this Court.

¶ 25. The court granted Gary's motion for summary judgment, and on February 25, 2005, issued a written order to that effect. This appeal follows.

II. Analysis.

¶ 26. We review a summary judgment de novo, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 27. Despite the long and complicated history of this case, the issue before us is quite narrow: whether the trial court properly concluded that Sylvia lacked standing to pursue a declaratory judgment claim after the court's previous ruling limited her standing to a marital property claim and Sylvia subsequently withdrew that claim. We conclude that it did.

¶ 28. Standing requires a personal stake in the outcome of a controversy. City of Waukesha v. Salbashian, 128 Wis. 2d 334, 350, 382 N.W.2d 52 (1986). The party who asserts standing must show an injury that is related to its stake in the outcome of the controversy. Sandroni v. Waukesha County Bd. of Supervisors, 173 Wis. 2d 183, 188, 496 N.W.2d 164 (Ct. App. 1992). "Whether a party has standing is a question of law." Polan v. DOR, 147 Wis. 2d 648, 658,433 N.W.2d 640 (Ct. App. 1988).

¶ 29. Under the Uniform Declaratory Judgment Act, courts may "declare rights, status, and other legal relations whether or not further relief is or could be claimed." Wis. Stat. § 806.04(1). To obtain a declaratory judgment a "justiciable controversy" must exist, that is, there must be: (1) "[A] controversy in which a claim of right is asserted against one who has an interest in contesting it"; (2) "The controversy must be between persons whose interests are adverse"; (3) "The party seeking declaratory relief must have a legal interest in the controversy — that is to say, a legally protectible interest"; and (4) "The issue involved in the controversy must be ripe for judicial determination." Loy v. Bunderson, 107 Wis. 2d 400, 409, 320 N.W.2d 175 (1982) (citation omitted).

¶ 30. Sylvia contends that the trial court erred in declaring that she lacks standing to seek a declaratory judgment. She maintains that she has standing because she has an interest in Harold's estate, and that the court can declare that Harold died owning fifty percent of Soref s shares and that those shares are part of his estate. In so asserting, she does not, however, challenge the trial court's reasoning; rather, her argument for standing focuses solely on two reasons for why she has an interest in the estate. She argues that, "[a]s a legatee under [their] Joint Will, Sylvia has an equitable ownership interest in the assets of Harold's estate," and that even without the joint will, she "has an interest that Soref s shares be declared part of the assets of Harold's estate based on her right to elect deferred marital property" under Wis. Stat. § 851.055.

¶ 31. Gary responds that Sylvia's declaratory judgment claim is barred by the trial court's May 4, 2004 order granting her leave to amend her complaint to set forth a marital property claim only, a claim she subsequently withdrew. He also contends that despite the trial court's express order limiting her claim, Sylvia still lacks standing to litigate rights belonging to the estate because the personal representative has the exclusive right to bring actions related to assets of the estate, and "[a]t best, she has a remote and contingent interest as residuary beneficiary of Harold's yet-to-be probated will." Gary further asserts that seeking a declaratory judgment does not cure Sylvia's lack of standing because a declaratory judgment cannot give standing to a party that otherwise lacks standing. He refers to Sylvia's reliance on the Declaratory Judgment Act as "particularly problematic" because she is the only one of several beneficiaries to seek relief, even though the act requires that "all persons shall be made parties who have or claim any interest which would he affected by the declaration...." Wis. Stat. § 806.04(11). We agree that Sylvia has no standing.

¶ 32. To amend a complaint more than six months after it was filed, a party must obtain leave from the court to do so, Wis. Stat. § 802.09(1), and whether an amendment will be permitted is within the discretion of the trial court, Columbia Propane, L.P. v. Wisconsin Gas Co., 2003 WI 38, ¶ 13, 261 Wis. 2d 70, 661 N.W.2d 776. A trial court's exercise of discretion is proper when it considers the relevant facts, applies the correct law, and provides a reasonable basis for its decision. Id. Absent an erroneous exercise of discretion, this court will affirm a trial court's discretionary decision. State v. Davis, 2001 WI 136, ¶ 28, 248 Wis. 2d 986, 637 N.W.2d 62.

¶ 33. In this case, nineteen months passed from the filing of the original complaint, and over a year passed from the deadline for amendments, before Sylvia sought leave to amend. The trial court granted Sylvia leave to amend, however, the court granted it only to allow her to pursue a marital property claim. The court specifically explained that the case could go forward only if Sylvia could prove that the shares of Soref s stock had "morphed" into marital property.

¶ 34. Sylvia did not follow the court's ruling; rather, she explicitly stated that she did not plan to pursue a marital property claim, and continued to assert that she had a claim as a legatee to half of Soref s shares. As a consequence, the trial court concluded that Sylvia had not complied with the court's May 4, 2004, order, and ultimately granted summary judgment in favor of Gary.

¶ 35. On appeal, Sylvia does not argue that the May 4, 2004 order was erroneous. In fact, she makes no mention of either the order that limited her standing to the Marital Property Act or even her own decision not to pursue such a claim. Her disregard of this seminal ruling does not diminish its importance. The trial court properly granted summary judgment based on Sylvia's unwillingness to pursue the only claim she had been given leave to file.

¶ 36. Because Sylvia does not challenge the trial court's original order that limited her standing to a marital property claim, our analysis need not go further. However, since this ruling was the basis for summary judgment, we explain why we agree with the trial court's underlying reasoning.

¶ 37. Upon the death of a person, the title to his property remains suspended until the appointment of a personal representative, at which time it passes to that personal representative. McKenney v. Minahan, 119 Wis. 651, 658, 97 N.W. 489 (1903). "[T]he personal representative succeeds to the interest of the decedent in all property of the decedent." Wis. Stat. § 857.01. Heirs and legatees obtain no legal title to the property, but are beneficially interested in the estate and possess an equitable title subject to administration and payment of debts. Schoenwetter v. Schoenwetter, 164 Wis. 131, 134, 159 N.W. 737 (1916). Title can pass to those ultimately entitled to share in the property only after administration and by the final decree of the proper court administering the estate. Pietraszwicz v. Pietraszwicz, 173 Wis. 523, 530, 181 N.W. 722 (1921). Therefore, if a personal representative has not yet been appointed, title is suspended and a potential legatee has no authority to try to gain ownership to assets belonging to the estate or the right to bring an action relating to such assets.

¶ 38. Against this backdrop it is easy to see why Sylvia's attempt to gain ownership of shares of stock that she alleges were part of her late husband's estate is problematic. She is trying to claim ownership, under the residuary clause of her late husband's yet-to-be probated will, to assets not even expressly mentioned in that will, prior to the appointment of a personal representative. She has no authority to bring such a case.

¶ 39. As the trial court correctly concluded, the estate has the responsibility to determine whether the stock is part of the residual estate, and only thereafter would Sylvia have the opportunity to proceed. The trial court also rightly noted that while the estate could have been made part of this case through a special administration, this was not done and the estate has yet to be processed; therefore, it was not up to the trial court to recreate what was not done. It is likewise not up to this court to speculate what could or should have been done.

¶ 40. Moreover, we agree with Gary that Sylvia's attempt to assert ownership by seeking a declaratory judgment is inappropriate because she is advocating on her own without joining other potential beneficiaries as required by the Declaratory Judgment Act. In light of all of the abovementioned deficits, we see no reason to reward Sylvia for what appears to be an attempt to circumvent the probate court.

¶ 41. The trial court also correctly determined that the question of the stock ownership was not properly before it, and thus declined to address the issue. For the same reason, this court declines to make a determination as to stock ownership. Sylvia's assertions that she has an equitable interest in Harold's estate and that she has an interest based on her right to elect deferred marital property are likewise not before us, and we decline to address them as well.

¶ 42. Because we conclude that the trial court's grant of summary judgment was proper, we do not reach the remainder of Sylvia's claims. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if a decision on one point disposes of an appeal, we will not decide other issues raised). Accordingly, we affirm.

By the Court. — Judgment affirmed.

FINE, J.

¶ 43. (concurring). Although I believe that Mrs. Shovers has sufficient standing under the broadly worded Uniform Declaratory Judgments Act to get a declaration in connection with the relief that she seeks (to which she may or may not be entitled), she has made no showing that the trial court erroneously exercised its discretion in refusing to permit her to further amend her complaint long after the period to amend without court-leave expired. I would affirm on that ground, and, accordingly, respectfully concur.

       Attorney Ronan later testified that while he was unable to remember the occasion, inasmuch as it is his practice to notarize documents only when he sees the person whose signature he is notarizing sign the document in his presence, he had no doubts that Harold signed the agreement before him on May 6, 1993.

       Prior to May of 1993, Harold had established brokerage accounts, that he alone managed, for each of his three children. At the time of the alleged stock sale, the value of the securities in the respective accounts were as follows: Gary, $934,455; Judith, $1,713,447; and Bradley, $2,329,866. Gary suggests that because the agreement does not state that the consideration had to flow from Gary, the brokerage accounts in fact constitute the consideration to Bradley and Judith referred to in the agreement. Sylvia disagrees and claims Gary never paid the consideration.

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

       Only if the surviving spouse has a claim under Wis. Stat. ch. 766, the Marital Property Act, may the personal representative or the spouse ask the court to determine the classification of property or other equitable relief necessary for management and control of the marital property during the administration of the estate. Wis. Stat. § 857.01. Sylvia of course expressly withdrew her marital property claim.