text:
    Banks Bros. Corporation, Plaintiff-Respondent, v. Donovan Floors, Inc., Breakfall, Inc., James P. Donovan and Jo Ann Donovan, Defendants-Appellants.
    Court of Appeals

      No. 99-3124.

      Submitted on briefs September 5, 2000.

    Decided October 3, 2000.

    2000 WI App 253
    (Also reported in 620 N.W.2d 631.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Donald A. Schoenfeld, Miriam S. Fleming and Katherine W. Schill of Michael Best & Friedrich LLP, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Patrick B. Howell and Curtis A. Paulsen oí Whyte Hirschboeck Dudek S.C., of Milwaukee.
    Before Wedemeyer, P.J., Fine and Vergeront, JJ.
   FINE, J.

¶ 1. James P. Donovan, Jo-Ann Donovan, Donovan Floors, Inc. and Breakfall, Inc. appeal from the trial court's order denying their motion for relief from a stipulated judgment of foreclosure on the Donovans' home. We affirm.

I.

¶2. This case involves the interrelationship between a debt, collateral, and provisions of Wisconsin's version of Article 9 of the Uniform Commercial Code, specifically WlS. Stat: §§ 409.505(2) and 409.501(3).

¶ 3. In 1990, Donovan Floors and Breakfall, two companies controlled by the Donovans, owed Bank One, Milwaukee, NA, some $245,000. James Donovan had previously guaranteed the debt, and the Donovans had also given to Bank One a mortgage on their house to secure the debt. Additionally, the companies gave to Bank One security interests in their property, also as security for the debt. The debt was also secured by an assignment of a life-insurance policy on James Donovan as well as a patent mortgage assigned to Bank One by Breakfall. :

¶ 4. Donovan Floors and Breakfall defaulted on the debt, and James Donovan defaulted on his guarantee. In late 1991, after the defaults, Bank One sued James Donovan on his guarantee, the companies to recover on the collateral, and the Donovans to foreclose on the mortgage. Subsequently, in early 1992, the case was settled when Bank One and the Donovans, Donovan Floors, and Breakfall stipulated to the entry of a judgment foreclosing on the Donovans' home and replevin in connection with the property given to Bank One as security for the debt. Bank One agreed to give the Donovans a chance to revitalize their business, and, pursuant to that arrangement, Bank One, the Donovans, Donovan Floors, and Breakfall executed two forbearance agreements pursuant to which Bank One deferred its immediate enforcement of the judgment.

¶ 5. In early 1993, Bank One assigned the debt and the security to the predecessor of Banks Bros. Corporation. A month later, Banks, the Donovans, Donovan Floors, and Breakfall signed an agreement entitled: "Notice of Assignment of Judgment, Security Interest, and Mortgage, and Agreement for Surrender of Collateral and Other Property, and Reduction of Indebtedness." (Uppercasing and underlining omitted.) Under that "Notice of Assignment," the parties agreed, as material here, that:

• The Notice of Assignment "shall also constitute notice pursuant to § 409.505(2), Wis. Stats., that BANKS intends to retain possession of certain collateral pledged and surrendered by BREAKFALL and DONOVAN FLOORS, and satisfies the debt as to BREAKFALL only." (Uppercasing in original.)
• As consideration for the surrender of the property, the debt, which then stood at some $267,000, was to be "reduced by the sum of $25,000."
• In return for an additional $25,000 reduction of the debt owed by James Donovan and Donovan Floors, Donovan Floors surrendered to Banks three cars, one van, and one truck.
• "BANKS, DONOVANS, BREAKFALL, and DONOVAN FLOORS hereby agree that upon surrender" of the property specified in the Notice of Assignment, "BREAKFALL shall be released from all further liability to BANKS, but that JAMES DONOVAN and DONOVAN FLOORS shall remain liable to BANKS for the balance due in the amount of $217,169.38 . . . and that JO-ANN DONOVAN shall remain liable to BANKS to the extent of her interest in the homestead and other marital property." (Uppercasing in original.) *
• The Donovans and Donovan Floors "agree that all of the property which' had previously been pledged to BANK ONE for the loan which is herein assigned by BANK ONE to BANKS shall remain encumbered and secured to BANKS as collateral for,the balance due." (Uppercasing in original.)
• Banks agreed to extend, the Forbearance Agreement conditioned on its receipt of certain specified payments according to a payment schedule set out in the Notice of Assignment.

The parties to the Notice of Assignment had a falling out, and Banks never received any money under the payment schedule. Ultimately, after some six years of strained relationships betweeji Banks and the Donovans, Banks scheduled a sheriffs sale of the Donovans' home. The Donovans and their companies then brought the motion that uhderlies this appeal, seeking an order under Wis. Stat. § 806.07(l)(e) relieving them from the judgment of foreclosure, and dismissing Banks' "claim for a money judgment against James P. Donovan." As noted, the trial court denied their motion.

II.

¶ 6. Although the Donovans and their companies asserted a number of reasons in support of their motion seeking relief from the foreclosure judgment, only one is pursued on this appeal — they contend, as phrased in their motion before the trial court, that "[t]he Foreclosure Judgment was completely satisfied when Banks Bros, retained the Personal Property. (Wis. Stats. § 409.505(2))." They argue that the satisfaction of the Breakfall debt that was memorialized in the Notice of Assignment operates, by virtue of Wis. Stat. § 409.505(2), also as a satisfaction of the debt as to both Donovan Floors and the Donovans. Whether they are correct turns on an analysis of § 409.505(2) and WlS. Stat. § 409.501(3).

¶ 7. The facts material to our decision are not disputed. Accordingly, our review is de novo. See Thelen v. DHSS, 143 Wis. 2d 574, 577, 422 N.W.2d 146, 147 (Ct. App. 1988) (interpretation of statute on undisputed facts is question of law subject to de novo review). We apply statutes to give effect to their plain meaning. See DNR v. Wisconsin Power & Light Co., 108 Wis. 2d 403, 408, 321 N.W.2d 286, 288 (1982).

¶ 8. Wisconsin Stat. § 409.505(2) provides, as material to this appeal:

[A] secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor if the debtor has not signed after default a statement renouncing or modifying the debtor's rights under this subsection .... If the debtor . . . objects in writing within 21 days from the receipt of the notification . . . the secured party must dispose of the collateral under s. 409.504. In the absence of such written objection the secured party may retain the collateral in satisfaction of the debtor's obligation.

As we have seen, the Donovans and Donovan Floors argue that this provision transforms the satisfaction of the debt as to Breakfall into a total satisfaction of the debt as to all of the debtors, and, therefore, the foreclosure judgment should be set aside because there is no underlying debt. Acknowledging that they signed the Notice of Assignment, and thus agreed that the debt would be satisfied as to Breakfall only, the Donovans and Donovan Floors contend that their agreement is forbidden by Wis. Stat. § 409.501(3), which as material here, provides:

To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the sections and subsections referred to in pars, (a) to (e) may not be waived or varied . . . but the parties may by agreement determine the standards by which the fulfillment óf these rights and duties is to be measured if such standards are not manifestly unreasonable:
(c) Section 409.505(2) which deals with acceptance of collateral as discharge of obligation;

Banks, on the other hand, argues that Wis. Stat. § 409.505(2) itself gives to the creditor and debtor the authority to modify the rights fixed by that subsection, when it provides: "[A] secured party in possession may, after default, propose to retain the collateral in satisfaction of the obligation. Written notice of such proposal shall be sent to the debtor if the debtor has not signed after default a statement renouncing or modifying the debtor's rights under this subsection." § 409.505(2) (emphasis added).

¶ 9. Banks's syllogism is this: Wis. STAT. § 409.505(2) permits the secured creditor to "propose to retain the collateral in satisfaction of the obligation," and, if the secured creditor seeks to do that, the secured creditor must send to the debtor "[w]ritten notice of such proposal." In such a case, the debt would be satisfied in full. Section 409.505(2), however, gives to the debtor the power to "renounc[e] or modifyt 3" the rights that the debtor has under the subsection, so long as the agreement "renouncing or modifying" those rights is "signed" by the debtor "after default" on the debt. Thus, Banks argues, although the Notice of Assignment was described as a notice under § 409.505(2), it was also a contemporaneous agreement (or, to use the terminology of § 409.505(2), a "statement"), executed after default, between Banks, Donovan Floors, and the Donovans by which the Donovans and Donovan Floors renounced and modified their right under § 409.505(2) to complete satisfaction of the debt, and by which they agreed that the satisfaction of the debt would run to Breakfall only. We agree with Banks.

¶ 10. Somewhat surprisingly, there are no cases directly on point — that is, dealing with a situation where, as here, a secured creditor has satisfied a debt as to some but not all debtors, and where, after default, all the debtors agreed to that arrangement in a statement signed by them. Wisconsin Stat. § 409.505(2), however, clearly grants to debtors the right to renounce or modify the normal quid pro quo for what is, in essence, strict foreclosure under § 409.505(2): full satisfaction of the debt. Thus, a treatise in the area notes:

Upon default and repossession, the secured creditor may wish to avoid the headache of resale and therefore accept the collateral in complete satisfaction of the debt under 9-505(2). The creditor so foregoes [sic] any right to a deficiency. This alternative of "strict foreclosure" was known to the common law and was available under the Uniform Conditional Sales Act.
All judges appear to agree that if the debtor has expressly agreed after default that the secured creditor may take the collateral at an agreed valuation in partial satisfaction of the debt, the secured creditor may still recover the balance owing. This would be a "modification" permissible under 9-505(2), second sentence. But in the absence of such a modifying agreement, some courts appear to hold that the case automatically falls in 9-505(2) as a full strict foreclosure bars any further recovery by the secured creditor.

4 James J. White & Robert S. Summers, Uniform Commercial Code, § 34-9, at 425, 428 (4th ed. 1995) (emphasis in original; footnotes omitted). Stated another way, in return for the relatively inexpensive and expeditious application of the secured property to the debt, the secured creditor forgoes the right to chase the debtor for any deficiency. After default on the debt, however, debtors may renounce that quid pro quo for something more valuable — time within which to reorganize a business with the hope of saving it. That is what was done here.

¶ 11. Understandably, the Donovans and Donovan Floors would love to have their cake (the chance to save their business given to them by Banks's agreement to hold off on its right to claim the assets pledged for the debt) and eat it also (keep those assets). But that is not the way WlS. Stat. § 409.505(2) works. Banks had a right under that section to immediate strict foreclosure of all the pledged assets. It gave up that right in consideration for a partial payment on the debt and the concomitant partial satisfaction. The Donovans and Donovan Floors have no legal or moral ground to complain; they agreed to that arrangement, and did so in a statement signed after default. This makes the arrangement legal under § 409.505(2).

By the Court. — Order affirmed.

       Mrs. Donovan’s first name is alternatively spelled in the record as "Jo Ann," "JoAnn," and "Jo-Ann." Documents on which her signature appears spell it "Jo-Ann.” Accordingly, so do we.

       We appreciate both parties having supplied us with copies of non-Wisconsin law and treatise excerpts upon which they relied.

       Wisconsin Stat. § 806.07(1) provides:

        Relief from judgment or order. (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
      (a) Mistake, inadvertence, surprise, or excusable neglect;
      (b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15 (3);
      (c) Fraud, misrepresentation, or other misconduct of an adverse party;
      (d) The judgment is void;
      (e) The judgment has been satisfied, released or discharged;
      (f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
      (g) It is no longer equitable that the judgment should have prospective application; or
      (h) Any other reasons justifying relief from the operation of the judgment.

       The "all judges" comment refers to S.M. Flickinger Co., Inc. v. 18 Genesse Corp., 423 N.Y.S.2d 73 (N.Y. App. Div. 1979), where the issue is discussed by both the majority and the dissent, but neither discussion is material to the holding.

       The Donovans, Donovan Floors, and Breakfall argue that a change in the Uniform Commercial Code, not yet adopted in Wisconsin, reflects the correctness of their argument. What was covered in Uniform Commercial Code § 9-505(2) is now in, as material here, § 9-620. The new provision reads, as material to our discussion: "[A] secured party may accept collateral in full or partial satisfaction of the obligation it secures only if: (1) the debtor consents to the acceptance under subsection (c)." U.C.C. (Revised) § 9-620(a). Consent by the debtor is, again as material to our discussion, defined by the new provision as follows: "[A] debtor consents to an acceptance of collateral in partial satisfaction of the obligation it secures only if the debtor agrees to the terms of the acceptance in a record authenticated after default." Id. § 9 — 620(c)(1). Although the Official Comment to this revision states: "Section 9-620, unlike former Section 9-505, permits a secured party to accept collateral in partial satisfaction, as well as full satisfaction, of the obligations secured," see id. § 9-101, cmt. 4(i), this comment ignores the clear import of the "if the debtor has not signed after default a statement renouncing or modifying the debtor's rights under this subsection" from § 9-505(2) (Wis. Stat. § 409.505(2)), which, without ambiguity, authorizes the debtor to renounce or modify its rights under § 9-505(2) (WlS. STAT. § 409.505(2)).


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    Dawn Kangas and Paul Kangas, Plaintiffs-Appellants-Cross-Respondents, v. Virgil Perry and Auto Owners Insurance Company, Defendants-Respondents, Sandy Gilbert, Defendant-Respondent-Cross-Appellant.
    Court of Appeals

      No. 00-0001.

      Submitted on briefs August 7, 2000.

    Decided October 3, 2000.

    2000 WI App 234
    (Also reported in 620 N.W.2d 429.)

      On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of James Koby oí Park O'Flaherty, Ltd. of La Crosse.
    On behalf of the defendants-respondents, the cause was submitted on the brief oí David E. Richie of Danielson, Guettinger, Richie & Manydeeds, S.C. of Eau Claire.
    On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Lorrie J. Franson of Eau Claire.
    Before Cane, C.J., Hoover, P. J., and Peterson, J.

      Petition to review denied.

   CANE, C.J.

¶ 1. Dawn and Paxil Kangas appeal from a summary judgment dismissing their claim for personal injuries Dawn suffered after falling from a horse-drawn sled on Sandy Gilbert's property. The Kangases argue that the trial court erred by (1) applying the equine immunity statute, Wis. Stat. § 895.481, to the facts of this case; and (2) failing to conclude that Gilbert was vicariously liable as pari of a joint venture with Virgil Perry, the horses' owner. We conclude that Perry is immune from liability under the equine immunity statute. We further conclude that because all four elements of a joint venture were not established, no joint venture between Gilbert and Perry existed.

¶ 2. Gilbert cross-appeals, challenging the circuit court's refusal to sanction the Kangases for pursuing a frivolous claim. Gilbert additionally moves this court to sanction the Kangases for a frivolous appeal. We conclude that neither the Kangases' claim nor appeal is frivolous as contemplated under Wis. Stat. §§ 814.025 or 809.25(3), respectively. Accordingly, we affirm the judgment.

Background

¶ 3. In August 1996, Perry and Gilbert resided together on Gilbert's property. Perry owned and trained Belgian horses that he entered in local horse-pulling competitions. As part of their training, the horses would pull a sled that Perry had constructed. On August 19, Perry contacted Tom Moldenhauer, Dawn's brother, to ask for assistance with a horse he believed to be sick. Dawn, who was at Moldenhauer's house at the time, accompanied her brother to Gilbert's property. After some discussion, Dawn and Moldenhauer agreed to accompany Perry on the sled as he exercised two draft horses. Perry and Moldenhauer sat on an old bus seat installed at the front of the sled and Dawn stood behind them.

¶ 4. The three eventually stopped to give the horses a rest, during which time Dawn let go of the back of the seat and opened a beer can. Shortly thereafter, the horses started pulling forward. Dawn lost her balance and fell off the sled, thereby sustaining serious injury. The Kangases subsequently filed suit against both Gilbert and Perry alleging negligence in the design and maintenance of the sled. Both Gilbert and Perry moved for summary judgment, claiming they were not liable for Dawn's injuries under the equine immunity statute, Wis. Stat. § 895.481 and the recreational immunity statute, Wis. Stat. § 895.52. Gilbert additionally sought sanctions for frivolous claim pursuant to Wis. Stat. § 814.025. In response to the defendants' respective motions for summary judgment, the Kangases, for the first time, alleged the existence of a joint venture between Gilbert and Perry in order to impose vicarious liability on Gilbert.

¶ 5. After a hearing on the motions, the circuit court concluded that the equine immunity statute applied and further found that the equipment was not faulty, thus barring liability under any exception to the statute. The court additionally refused to find the Kan-gases' claim frivolous. This appeal and cross-appeal followed.

Analysis

¶ 6. Whether summary judgment was appropriately granted presents a question of law that we review independently of the circuit court. See Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639, 651-52, 476 N.W.2d 593 (Ct. App. 1991). When reviewing summary judgments, we utilize the same analysis as the circuit court and must apply the standards set forth in WlS. Stat. § 802.08(2). See Schultz v. Industrial Coils, Inc., 125 Wis. 2d 520, 521, 373 N.W.2d 74 (Ct. App. 1985). In general, "summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Kenefick v. Hitchcock, 187 Wis. 2d 218, 224, 522 N.W.2d 261 (Ct. App. 1994).

A. The Equine Immunity Statute

¶ 7. The Kangases argue that the equine immunity statute, Wis. Stat. § 895.481, is inapplicable to the facts of this case. Alternatively, they contend that even if applicable, Perry is nevertheless liable under one of the exceptions to the statute. We disagree.

¶ 8. The application of a statute to a particular set of facts presents a question of law that this court reviews de novo. See Bucyrus-Erie Co. v. DILHR, 90 Wis. 2d 408, 417, 280 N.W.2d 142 (1979). The goal of statutory interpretation is to determine and give effect to the legislature's intent. See Doe v. American Nat'l Red Cross, 176 Wis. 2d 610, 616, 500 N.W.2d 264 (1993). We must first look to the statute's plain language. If the language is clear and unambiguous on its face, we merely apply that language to the facts at hand. See In re Peter B., 184 Wis. 2d 57, 71, 516 N.W.2d 746 (Ct. App. 1994). Although we do not look beyond the statute's plain meaning, we will consider its parts in relationship to the whole statute and to related sections. See Elliott v. Employers Mut. Cas. Co., 176 Wis. 2d 410, 414, 500 N.W.2d 397 (Ct. App. 1993).

¶ 9. When a statute's language is ambiguous, we may then consider legislative intent and collateral sources, including "the scope, history, context, subject matter and object of the statute." Armor All Prods. v. Amoco Oil Co., 194 Wis. 2d 35, 50, 533 N.W.2d 720 (1995). "Statutory language is ambiguous if reasonably well-informed individuals could differ as to its meaning." State v. Kirch, 222 Wis. 2d 598, 602-03, 587 N.W.2d 919 (Ct. App. 1998).

¶ 10. Turning to the language of the statute, Wis. Stat. § 895.481(2) provides:

Except as provided in subs. (3) and (6), a person, including an equine activity sponsor or an equine professional, is immune from civil liability for acts or omissions related to his or her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities.

"Inherent risk of equine activities," is defined as

á danger or condition that is an integral part of equine activities, including all of the following:
1. The propensity of an equine to behave in a way that may result in injury or death to a person on or near it.
2. The unpredictability of an equine's reaction to a sound, movement or unfamiliar object, person or animal.
3. A collision with an object or another animal.
4. The potential for a person participating in an equine activity to act in a negligent maimer, to fail to control the equine or to not act within his or her ability.
5. Natural hazards, including surface and subsurface conditions.

Wis. Stat. § 895.481(1)(e).

¶ 11. The Kangases, citing foreign jurisdictions, argue that the equine immunity statute is not applicable to all persons, but rather, only to equine professionals. We are not persuaded. The plain language of the statute allows immunity to any person, "including an equine activity sponsor or equine professional." Wis. Stat. § 895.481(2) (emphasis added). Had the legislature intended to limit immunity to equine professionals only, it could have done so.

¶ 12. Because the statute is clear and unambiguous on its face, we need only apply it to the facts at hand. Here, Dawn fell and was injured after losing her balance when Perry's horses unexpectedly moved forward. The horses' propensity to move without warning is an inherent risk of equine activity contemplated by the statute. The equine immunity statute is thus applicable to these facts.

¶ 13. The Kangases contend that Perry is nevertheless liable under one of the exceptions to the equine immunity statute. WISCONSIN Stat. § 895.481(3) provides, in relevant part: "The immunity under sub. (2) does not apply if the person seeking immunity does any of the following: (a) Provides equipment or tack that he or she knew or should have known was faulty and the faulty equipment or tack causes the injury or death ...." The Kangases argue that a material issue of fact exists as to whether Perry's sled was faulty and whether he knew of its faulty condition. However, whether the sled was faulty and whether Perry knew of its faulty condition is immaterial because the Kan-gases failed to show that the sled, even if faulty, caused Dawn's injuries. It is undisputed that Dawn was not holding on to the back of the driver's seat and consequently lost her balance after the horses unexpectedly lurched forward. Although the Kangases claim that the sled was faulty, they never specify how the alleged faulty condition of the sled caused her fall. Therefore, they fail to raise any disputed "issue of material fact with respect to Perry's immunity from liability under § 895.481. ;-

B. Joint Venture

¶ 14. Though they do not now contend that Gilbert knew of the allegedly faulty condition of the sled, the Kangases nevertheless argue that Gilbert is vicariously liable as part of a joint venture with Perry. To establish the existence of a joint venture, the following four elements must be present: "(1) contribution of money or services by each of the parties; (2) joint proprietorship and mutual control over the subject matter of the venture; (3) an agreement to share profits; and (4) an express or implied contract establishing the relationship." Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 645, 284 N.W.2d 318 (1979).

¶ 15. The facts presented , do not establish that Perry and Gilbert were engaged in a joint venture. Perry and Gilbert agreed that in exchange for rent-free housing and board for his horses, Perry would be responsible for lawn care and snow removal on the property, in addition to caring for both his and Gilbert's horses, buying their feed, watering them and keeping their stalls clean. Although a sign on Gilbert's property read "Gilbert and Perry Pulling," both claimed that it was predominantly Perry who was involved in local horse-pull competitions.

¶ 16. At her deposition, Gilbert was asked to describe the extent of her horse-pulling activities prior to the date of Dawn's injuries. Gilbert stated that she attended horse-pull competitions and on two occasions, drove the team. Additionally, she had helped Perry prepare the team for competitions. Gilbert stated, however, that although she may have participated in their use, she was neither responsible nor accountable for their training. With regard to the competitions, Perry would pay the entry fees and reap the benefits of any cash awards.

¶ 17. Although it is undisputed that Gilbert did not directly share in the profits of any horse-pull competition awards, the Kangases nevertheless argue that Gilbert indirectly benefited from these awards, as Perry cared for both his and her horses. We need not decide, however,, whether indirect benefit from the joint venture is sufficient to satisfy the element requiring that the members of a joint venture share in the venture's profits. It was Perry who owned the horses, executed their training regimen and paid the entry fees for the various competitions. Thus Gilbert did not enjoy joint proprietorship and mutual control over the subject matter of the venture. Because all four elements of a joint venture were not established, we conclude that no joint venture existed. In any event, because Perry is immune from liability under the equine immunity statute, Gilbert may not be found vicariously liable for his alleged negligence. See, e.g., Samson v. Riesing, 62 Wis. 2d 698, 710, 215 N.W.2d 662 (1974).

C. Frivolous Claim and Appeal

¶ 18. On cross-appeal, Gilbert argues the circuit court erred by failing to sanction the Kangases for a frivolous claim. In order to impose sanctions against a party for frivolous claim under Wis. Stat. § 814.025, the court must find one of the following:

(a) The action, special proceeding, counterclaim, defense or cross complaint was commenced, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
(b) The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal' of existing law.

Wis. Stat. § 814.025(3).

¶ 19. The inquiry into whether a claim is frivolous under the statute is a mixed question of law and fact. See Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 236, 517 N.W.2d 658 (1994). A trial court's findings of fact will be affirmed unless they are clearly erroneous. See Sellers v. Sellers, 201 Wis. 2d 578, 586, 549 N.W.2d 481 (Ct. App. 1996); see also Wis. Stat. § 805.17(2). However, "the ultimate conclusion of whether the facts cited fulfill the legal standard of frivolousness is a question of law" that this court reviews de novo. Stern, 185 Wis. 2d at 236. Further, "[a]n appellate court must accept a reasonable inference drawn by the trial court from established facts if more than one reasonable inference may be drawn." Id. at 237. However, "[w]hether an inference is reasonable is itself a question of law." Id.

¶ 20. In refusing to find the Kangases' claim frivolous, the circuit court noted that although Gilbert did not directly share in the profits of the claimed venture, there was no case law requiring that any profits be shared directly, rather than indirectly. We agree that a good faith argument for the existence of the joint venture could have been made.

¶ 21. Gilbert also moves this court for fees and costs for frivolous appeal. This court decides, as a matter of law, whether an appeal is frivolous. See NBZ, Inc. v. Pilarski, 185 Wis. 2d 827, 841, 520 N.W.2d 93 (Ct. App. 1994). In order to impose sanctions against a party for a frivolous appeal under Wis. Stat. § 809.25(3), we must determine whether one or more of the following exist:

1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

Wis. Stat. § 809.25(3)(c).

¶22. Again, because Gilbert has failed to cite case law requiring that the members of a joint venture share directly, rather than indirectly, in the profits of the venture, we conclude that the Kangases made a good faith argument for the existence of a joint venture and conclude that their appeal was not frivolous under Wis. Stat. § 809.25(3).

By the Court. — Judgment affirmed.

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

       In Samson v. Riesing, 62 Wis. 2d 698, 710, 215 N.W.2d 662 (1974), our supreme court recognized that "[v]icarious liability ... and joint venture are essentially doctrines that are applicable to a situation where the negligence of one party is proved and it is sought to hold another party liable.” The court further recognized that these doctrines are of jio assistance to a plaintiff "where the onus of negligent conduct has not been placed on any defendant." Id.

       Gilbert stresses that despite deposition testimony establishing that Gilbert neither owned nor maintained the sled, the Kangases nevertheless filed suit alleging she was negligent in the design and maintenance of the sled. Gilbert further stresses that the Kangases did not even allege the existence of a joint venture in their complaint, but rather, first argued this theory in their response to the summary judgment motions. The Kan-gases' argument for the existence of a joint venture may be characterized as nothing more than zealous advocacy. All doubts about whether a position is frivolous are resolved against a conclusion of frivolousness, so as not to discourage an attorney's obligation to undertake innovative positions or the zealous advocacy of a client. See Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 235, 517 N.W.2d 658 (1994).

       Although the parties make alternative arguments regarding the recreational immunity statute, Wis. Stat. § 895.52, its applicability is not dispositive of this case. We therefore refrain from addressing it. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (only dispositive issues need be addressed).


author: PETERSON, J.

text:
    Cindy L. Grothe, Plaintiff-Appellant, v. Valley Coatings, Inc. and Continental Casualty Company, Defendants-Third-Party Plaintiffs-Respondents, v. PPG Industries, Inc., Omni Glass & Paint, Inc. and Miron Construction Co., Inc., Third-Party Defendants-Respondents.
    Court of Appeals

      No. 00-0524.

      Submitted on briefs September 11, 2000.

    Decided October 3, 2000.

    2000 WI App 240
    (Also reported in 620 N.W.2d 463.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Max W. Saylor, Berlin.
    On behalf of the defendants-third-party plaintiffs-respondents, the cause was submitted on the brief of David M. Victor of the Law Office of Mark H. Miller, Brookfield.
    On behalf of the third-party defendant-respondent, PPG Industries, Inc., the cause was submitted on the brief of Peter J. Hickey of Everson, Whitney, Everson & Brehm, S.C., Green Bay.
    On behalf of the third-party defendants-respondents, Omni Glass & Paint, Inc. and Miron Construction Co., Inc., the cause was submitted on the brief of Mark A. Klinner of Sandford, Zalewski & Klin-ner, LLP, Wausau, and Thomas R. Schrimpf of Hinshaw & Culbertson, Milwaukee.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   PETERSON, J.

¶ 1. Cindy Grothe appeals a judgment dismissing her negligence claim against Valley Coatings, Inc. Grothe argues that the circuit court erred by: (1) dismissing the case on summary judgment; (2) denying her motion to amend the pleadings under the relation-back doctrine pursuant to Wis. Stat. § 802.09(3); and (3) erroneously exercising its discretion when it denied her motion to amend the pleadings. We disagree and affirm the judgment.

BACKGROUND

¶ 2. Grothe claims she sustained injuries on June 12,1995, as a result of inhaling and being exposed to paint and chemicals used during construction at her place of employment. She filed a complaint against Valley Coatings, the distributor of the paint and chemicals, on January 30,1998. Valley Coatings filed a third-party complaint against Omni Glass & Paint, Inc., and Miron Construction Co., Inc., on June 10, 1998. Omni applied the paint, and Miron was the general contractor responsible for the factory expansion project. Subsequently, Valley Coatings impleaded PPG Industries, Inc., the paint manufacturer, in an amended third-party complaint on March 29,1999.

¶ 3. Valley Coatings moved for summary judgment based on Grothe's admission that she had no direct evidence of negligence on the part of Valley Coatings and based on her failure to name expert witnesses. Grothe then moved to withdraw her admission. The court denied Grothe's request to withdraw the admission and granted Valley Coatings' motion for summary judgment.

¶ 4. The remaining defendants moved to dismiss because Grothe had not filed any claim directly against them. In response, Grothe filed a motion to amend her pleadings to name Omni and Miron as defendants under the relation-back doctrine. The circuit court denied her motion and ruled that the relation-back doctrine would not allow Grothe to amend her pleadings because the statute of limitations had run and notice had not been received by the additional parties within the time required. The circuit court dismissed Grothe's suit and any remaining claims. This appeal followed.

DISCUSSION

I. Summary Judgment

¶ 5. When we review a summary judgment we apply the same methodology as the trial court, and we consider the issues independently. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). The remedy is appropriate in cases where there is no genuine dispute of material fact and only one reasonable inference from the undisputed facts, and one party is entitled to judgment as a matter of law. See Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473 (1980).

¶ 6. Grothe argues that summary judgment was inappropriate because a genuine issue of material fact exists. Additionally, Grothe contends that expert testimony was not required and that the circuit court improperly granted summary judgment because of her failure to name any experts. However, Grothe's brief does not contain any citations to the record. This is a violation of Wis. Stat. § 809.19(l)(d) and (e). This particular argument is heavily dependent upon facts in the record. We decline to embark on our own search of the record, unguided by references and citations to specific testimony, to look for evidence to support Grothe's argument. Wisconsin Stat. Rule 809.19(l)(e) requires parties' briefs to contain "citations to the . . . parts of the record relied on." We have held that where a party fails to comply with the rule, "this court will refuse to consider such an argument...." Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990) (citation omitted). "[I]t is not the duty of this court to sift and glean the record in extenso to find facts which will support an [argument]." Id. (citation omitted). We decline to address this portion of Grothe's argument and dismiss it. See Wis. Stat. Rule 809.83(2).

II. Relation-Back Doctrine

¶ 7. Grothe claims the court erred by denying her motion to amend her pleadings under the relation-back doctrine to include Omni and Miron as named defendants. See Wis. Stat. § 802.09(3). Because this is a legal question not as heavily dependent on facts in the record, we will address the argument. The circuit court ruled that Omni and Miron did not receive the required notice within the period of the statute of limitations. We are not bound by the circuit court's conclusions of law and decide the matter independently. See Green Scapular Crusade, Inc. v. Town of Palmyra, 118 Wis. 2d 135, 138, 345 N.W.2d 523 (Ct. App. 1984).

¶ 8. Valley Coatings impleaded Omni and Miron on June 10,1998, two days before the statute of limitations expired. However, Omni and Miron did not receive notice of the institution of the action until June 22, 1998, when they were served with the third-party summons and complaint.

¶ 9. Wisconsin Stat. § 802.09(3) spells out four conditions which must be met for an amended pleading to relate back and ameliorate the effect of the statute of limitations: (1) the basic claim must have arisen out of conduct set forth in the original pleadings; (2) the party to be brought in must have received notice so that it will not be prejudiced in maintaining its defense; (3) the party knew or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) most significantly, the second and third requirements must have been fulfilled within the prescribed limitations period.

¶ 10. Although Wisconsin courts have not addressed this precise issue, the United States Supreme Court has construed the statute's nearly identical federal counterpart, Fed. R. Civ. P. 15(c) (amended 1991). Because this precise issue has not been addressed in Wisconsin, we look to federal cases for guidance in interpreting similar statutes. See State v. Gundenschwager, 191 Wis. 2d 431, 439, 529 N.W.2d 225 (1995). In Schiavone v. Fortune, 477 U.S. 21 (1986), a complaint was filed before the applicable statute of limitations expired. The plaintiffs mistakenly labeled Fortune as the defendant and mailed the complaint to Fortune's offices at the Time Life Building in New York City. Fortune, however, was the name of an internal division of Time, Incorporated. Time refused service because it was not named as defendant. The plaintiffs then amended their complaint to name Time as a defendant, but the amendment occurred after the statute of limitations had run. The plaintiffs argued that the amended complaint related back since the original complaint was filed before the statute of limitations had expired and was mailed within the time allowed for service of process. The Supreme Court disagreed and held that in order for an amended complaint to relate back, the party to be added must receive notice within the applicable statute of limitations period. See id. at 29.

¶ 11. We agree with the Supreme Court's interpretation of wording similar to Wis. Stat. § 802.09(3) and choose to apply it. We hold that the statute requires receipt of notice of the institution of the action within the statute of limitation period. Because Omni and Miron did not receive notice of the lawsuit until after the statute of limitations had expired, the plain notice requirements of the statute have not been met. Therefore, Grothe's proposed amended complaint does not relate back. As a result, the circuit court properly denied Grothe's motion.

III. Exercise op Discretion

¶ 12. Last, Grothe argues that the circuit court erroneously exercised its discretion when it denied her motion to amend the pleadings pursuant to WlS. Stat. § 802.09(1). "A trial court's decision to grant leave to amend a complaint is discretionary." Finley v. Culligan, 201 Wis. 2d 611, 626, 548 N.W.2d 854 (Ct. App. 1996). We will not reverse a court's discretionary decision unless the record discloses that the court failed to exercise its discretion, that the facts do not support the trial court's decision, or that the court applied the wrong legal standard. See id. at 626-27. The circuit court "in exercising its discretion must balance the interests of the party benefiting by the amendment and those of the party objecting to the amendment." State v. Peterson, 104 Wis. 2d 616, 634, 312 N.W.2d 784 (1981).

¶ 13. A review of the record reveals that Grothe did not take any steps to amend the pleadings until after Valley Coatings' summary judgment motion was granted and Miron and Omni moved to dismiss. On appeal, her only argument is that Omni and Miron have not claimed they would be prejudiced if the motion were granted. Grothe has failed to explain why an amendment was justified so late in the proceedings and why she did not seek leave to amend her pleadings before October 28, 1999, nearly two years after filing her original complaint. Therefore, the trial court properly exercised its discretion by denying Grothe's motion to amend the pleadings.

By the Court. — Judgment affirmed.

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

       Grothe's proposed amended summons and complaint contain no claim against PPG Industries.

       Wisconsin Stat. Rule 809.19(1)(d) reads as follows:
      (1) BRIEF of Appellant. The appellant shall file a brief within 40 days of the filing in the court of the record on appeal. The brief must contain:

        (d) A statement of the case, which must include: a description of the nature of the case; the procedural status of the case leading up to the appeal; the disposition in the trial court; and a statement of facts relevant to the issues presented for review, with appropriate references to the record.
      Wisconsin Stat. Rule 809.19(l)(e) provides:
      An argument, arranged in the order of the statement of issues presented. The argument on each issue must be preceded by a one sentence summary of the argument and is to contain the contention of the appellant, the reasons therefor, with citations to the authorities, statutes and parts of the record relied on as set forth in the Uniform System of Citation and SCR 80.02.

       Wisconsin Stat. Rule 809.83(2) states:
      Noncompliance With Rules. Failure of a person to comply with a requirement of these rules, other than the timely filing of a notice of appeal or cross-appeal, does not affect the jurisdiction of the court over the appeal but is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.

       Wisconsin Stat. Rule 802.09(3) reads as follows:
      Relation Back of Amendments. If the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party. (Emphasis added.)

       Federal R. Civ. P. 15(c) (amended 1991), construed by the Supreme Court reads as follows:
      Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (Emphasis added.)
      Although Congress has since modified rule 15(c), Wis. Stat. § 802.09(3) has not been amended, and therefore the ruling in Schiavone v. Fortune, 477 U.S. 21, 24 n.5 (1986), still applies.

       Wisconsin Stat. § 802.09(1) reads as follows:
      Amendments. A party may amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires. A party shall plead in response to an amended pleading within 45 days after service of the amended pleading unless (a) the court otherwise orders or (b) no responsive pleading is required or permitted under s. 802.01(1).


text:
    State of Wisconsin, Plaintiff-Respondent, v. Rodney R. Clark, Defendant-Appellant.

    Court of Appeals

      No. 00-0932-CR.

      Submitted on briefs August 21, 2000.

    Decided October 3, 2000.

    2000 WI App 245
    (Also reported in 620 N.W.2d 435.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert A. Ferg of Chippewa Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Daniel J. O'Brien, assistant attorney general, of Madison.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

       Petition to review denied.

   CANE, C.J.

¶ 1. Rodney Clark appeals from a judgment convicting him of failing to report to jail, contrary to WlS. STAT. § 946.425(lm)(b). He also appeals from the denial of his postconviction motion. Clark argues that his constitutional protection against double jeopardy was violated, thus requiring reversal of his conviction. We reject Clark's arguments and affirm the judgment.

Background

¶ 2. In May of 1999, Clark was charged with one count of failing to report to jail, contrary to WlS. Stat. § 946.425(lm)(b). On August 3, before the Hon. Donna Muza, Clark waived his right to a preliminary hearing and entered a no contest plea to the charge. The following minimal exchange occurred:

[DEFENSE COUNSEL]: Judge, I’d make it part of the record too, Guilty or No Contest Plea and Waiver of Rights form, which I went through with Mr. Clark before court today.
[COURT]: All right. And with reference to the same, Mr. Heit has indicated, Mr. Clark, that you have gone over this fully with him, and do you fully understand it?
[CLARK]: Yes, I do.
[COURT]: All right. All right. On your no contest plea then the court finds you guilty of the offense as charged in the Information. And the waiver of your rights will be received in writing. I am going to order that there be a presentence investigation.

¶ 3. On October 6, Clark appeared for sentencing before the Hon. Benjamin D. Proctor. There, defense counsel stated: "Your Honor, we have received a copy of the presentence investigation, as well. Before I bring up anything in that, I'm sure the court planned on retaking the plea, okay. In preparation for court today, I did prepare with Mr. Clark a plea questionnaire/waiver of rights and appellate rights form." Clark entered a guilty plea. The court subsequently engaged Clark in a lengthy plea colloquy and ultimately determined that he had entered his plea knowingly, intelligently and freely. Clark was found guilty and sentenced to five years in prison. In his postconviction motion, Clark asserted that his constitutional protections against double jeopardy had been violated. His postconviction motion was denied and this appeal followed.

Analysis

¶ 4. Whether an individual has been placed in jeopardy twice for the same offense is a question of law that this court reviews de novo. See State v. Harris, 161 Wis. 2d 758, 760, 469 N.W.2d 207 (Ct. App. 1991). A criminal defendant is protected against being twice placed in jeopardy for the same offense under both the United States and Wisconsin constitutions. The double jeopardy clause offers protection against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See State v. Comstock, 168 Wis. 2d 915, 936-37, 485 N.W.2d 354 (1992).

¶ 5. "The prohibition against double jeopardy is not triggered until 'jeopardy attaches' in the proceedings." Id. at 937. Relevant to this appeal, our supreme court has held that jeopardy attaches when a circuit court accepts an accused's guilty plea. See id. at 937-38. In the present case, jeopardy attached on August 3 when Judge Muza accepted Clark's no contest plea. In order for there to be validity to the assertion of double jeopardy, however, "there would have to be a judgment of acquittal or conviction or a dismissal of the charges and then a second prosecution begun on the basis of the same offense." Salters v. State, 52 Wis. 2d 708, 715, 191 N.W.2d 19 (1971) (emphasis added).

¶ 6. Here, Judge Muza accepted Clark's no contest plea and convicted him of the crime charged. On October 6, Judge Proctor, at defense counsel's prompting, retook Clark's plea. At the postconviction motion hearing, the court explained:

I basically retook the plea making sure that Mr. Clark understood what his rights were regarding his plea. And in my judgment, he did, based upon that hearing and my review of the transcript. In other words, he was not placed in any jeopardy by me reviewing his plea with him. I did no vacation of the plea.

The October 6 proceeding did not constitute a second prosecution begun on the same offense. Rather, Clark's subsequent plea was part of one continuous proceeding. It is undisputed that there was but one criminal complaint, one information and one sentence. Further, and despite the October 3 retaking of Clark's plea, the judgment of conviction connotes August 3 as the date of conviction. Because Judge Proctor merely sought to confirm the validity of Clark's original plea, we conclude that Clark was not subject to double jeopardy. Accordingly, we affirm the judgment.

By the Court. — Judgment and order affirmed.

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

       The Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Similarly, the Wisconsin Constitution states: "[N]o person for the same offense may be put twice in jeopardy of punishment." Wis. Const. Art. I, § 8.

       Both parties address whether Clark, by pleading no contest, waived his right to challenge his conviction on double jeopardy grounds. Although a plea of guilty or no contest generally waives all nonjurisdictional defenses and defenses occurring prior to the plea, including claims of constitutional error, this court has recognized that "double jeopardy is an exception to the guilty-plea-waiver rule." State v. Hubbard, 206 Wis. 2d 651, 655, 558 N.W.2d 126 (Ct. App. 1996). Because the State concedes that Clark did not expressly waive his double jeopardy rights, we need not address the matter further.

       Clark contends that Salters v. State, 52 Wis. 2d 708, 191 N.W.2d 19 (1971), is inapplicable to the present case. He emphasizes the fact that Salters addressed in part the volunta-riness of the defendant's plea. However, although Clark does not now challenge the validity of his original plea, he may not dispute that the August 3 plea, uncorrected, would have provided him the opportunity to challenge his conviction on the ground that Judge Muza had not engaged him in an adequate plea colloquy. See State v. Bangert, 131 Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986). In any event, Salters, relevant to this appeal, held that in order for there to be validity to the assertion of double jeopardy, "there would have to be a judgment of acquittal or conviction or a dismissal of the charges and then a second prosecution begun on the basis of the same offense." See Salters, 52 Wis. 2d at 715 (emphasis added).


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Charles A. Dunlap, a/k/a Char Lee Dancing Eagle, Defendant-Appellant.
    Court of Appeals

      No. 99-2189-CR.

      Submitted on briefs May 4, 2000.

    Decided October 4, 2000.

    2000 WI App 251
    (Also reported in 620 N.W.2d 398.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Marguerite M. Moeller, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review granted.

   ANDERSON, J.

¶1. Charles A. Dunlap appeals from a judgment of conviction for first-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1) (1987-88) and an order denying his post-conviction motion requesting a new trial. Dunlap argues that the State opened the door to cross-examination of its expert witness about complainant Jamie F.'s sexual behavior prior to the alleged assault when the expert testified that Jamie's behavior was consistent with that of child sexual assault victims. Because the information about Jamie's behavior was in a report made by the expert using statements from an individual who is now deceased, the circuit court ruled that the evidence was inadmissible as hearsay and that the State had not opened the door to such evidence through the expert's testimony. Dunlap asserts that this evi-dentiary decision was erroneous and prejudicial.

¶ 2. Dunlap also posits an alternative argument. He claims that his trial counsel was ineffective for failing to request a pretrial hearing as required by Wis. Stat. § 972.11, the rape shield law, to attempt to get the evidence of Jamie's prior sexual behavior admitted.

¶ 3. Because we conclude that Dunlap was erroneously precluded from cross-examining the expert about Jamie's sexual behavior prior to Dunlap's alleged assault, we do not consider his alternative argument. We reverse the conviction and order a new trial.

BACKGROUND

¶ 4. On November 7, 1989, Dunlap babysat six-year-old Jamie at the home of Susan Smith and Gary Cox. Two days later, Jamie informed her father that Dunlap had touched her private parts when he babysat her, and her father notified the police. When reporting the incident to the police, Jamie's mother stated that her daughter further revealed that Dunlap "had taken her to bed, laid on the [bed] with her, and placed his hand inside her underwear and played with her private parts." Jamie also told her mother that Dunlap told her that this was a secret just between the two of them and that she should not tell anyone about it.

¶ 5. At the time of the incident, Dunlap, a friend of Cox's from out of state, had been staying at Smith and Cox's home for two weeks. After Cox confronted Dunlap about Jamie's allegation, Dunlap moved out of Smith and Cox's house. Eight years later, Dunlap was arrested in California and returned to Wisconsin to be tried on the charge. At his arraignment, Dunlap pled not guilty.

¶ 6. Prior to trial, Dunlap moved the court to permit an in camera inspection of Jamie's medical and therapy records. Dunlap argued that these records might contain exculpatory evidence. Supporting his claim, he referenced an interview the police conducted with Cox on March 10, 1998. In that interview, Cox stated that he had observed Jamie behave inappropriately for her age. Cox claimed, "She would rub up against people and when she sat on your lap she would rub against or move around on your private parts Cox also stated that he had advised his son, Shawn, to stay clear of her. Additionally, Cox informed the officer that Jamie had made untrue allegations against him while she was in therapy, which she later recanted and revealed that she had invented because she was mad at Cox. After a hearing, the court granted the motion. Once it had reviewed Jamie's records, the court determined that they contained no exculpatory evidence.

¶ 7. A three-day jury trial began. The State called Jamie, now fifteen years old, to testify about the incident. On the night of November 7, 1989, she remembered being dropped off at Smith and Cox's house while her mother attended a meeting. Smith left with Jamie's mother, and Jamie was left at the house with Dunlap and Shawn. Jamie claimed that the assault occurred after she went into Smith's bedroom to sleep. She said that a little while later Dunlap came into the bedroom. Jamie described what happened next:

He laid down beside me, and he started to rub my back, and he started to move down lower, and... he touched my ass, and then moved to the front and touched my vagina.

She stated that Dunlap rubbed but did not penetrate her vagina with his finger and that he told her not to tell anyone about the incident or he would kill her parents. The incident stopped when her mother returned to the house. Jamie testified that on the way home from Smith and Cox's house she told her mother that "Charlie Dunlap sexually assaulted me." Two days later, she told her father about the incident.

¶ 8. On cross-examination, defense counsel questioned Jamie about inconsistencies in the details of the testimony that she gave to social worker Theresa Hanson shortly after the incident compared to the statements she made eight years later at the preliminary hearing and at the trial. At the preliminary hearing, Jamie had testified that Shawn was not present at Smith and Cox's home on the night of the assault and that she was alone with Dunlap. This statement was inconsistent with the statement she made to Hanson in 1989 and -with her testimony at trial. Defense counsel also pointed out that in 1989 Jamie stated that Dunlap did not penetrate her vagina with his finger, but at the preliminary hearing she claimed that he did. When asked on cross-examination which statement was true, Jamie replied that Dunlap did insert his finger into her vagina. Jamie was asked about another discrepancy in her testimonies. In 1989, she claimed that Dunlap told her never to tell anyone about the incident but did not say what would happen to her if she did. At the preliminary hearing and at the trial, Jamie averred that Dunlap threatened to kill her parents if she revealed what had happened.

¶ 9. In attempting to explain the inconsistencies in Jamie's testimony, the State called Hanson as an expert witness on child sexual assault victims. Hanson informed the court that six-year-old children do not usually have a concept of "in and out" in reference to something being inserted into their genitalia. This concept is better understood once a child reaches puberty. She further testified that based on her twenty-four years of experience, six-year-old children often do not reveal the complete story to her the first time they meet with her. She stated that it is not uncommon for children to focus only on the central activity that happened to them rather than on the details of the peripheral information. She said that Jamie's disclosure of the alleged assault was consistent with child sexual assault victims because it occurred away from the scene of the assault and because she revealed the information to someone whom she trusted.

¶ 10. During defense counsel's cross-examination of Hanson, counsel attempted to ask her whether a six-year-old child with detailed sexual knowledge was consistent with the child being a victim of sexual assault. The prosecutor objected to the question's relevancy. The court held a sidebar discussion, where the prosecutor explained that defense counsel's line of questioning was impermissible due to the rape shield law's prohibition on questioning about the victim's sexual conduct. Such evidence may only be admissible through a pretrial motion in limine, he argued. Defense counsel countered that the State had opened the door by questioning Hanson about whether Jamie's behavior was consistent with a child sexual assault victim. He continued arguing that he should be able to introduce evidence that suggested Jamie may have also exhibited such behavior prior to the incident with Dunlap. He sought to elicit Hanson's opinion with regard to a report she made in 1989. In this report, Hanson referred to a conversation with Smith in which Smith revealed to Hanson that she was very concerned about Jamie because of Jamie's unusual behavior. Smith told Hanson that Jamie "touch[ed] men in the genital area," attempted to stimulate herself by writhing around on men's laps, "hump[ed] the family dog" and masturbated frequently. Smith said that she observed this behavior prior to Dunlap's alleged assault. Defense counsel argued that the evidence in Hanson's report was admissible because it was a report conducted in the regular course of business and the declarant, Smith, was now deceased. He asserted that it was imperative for the jury to be made aware that Jamie displayed conduct consistent with being a sexual assault victim before the incident with Dunlap happened. The court sustained the prosecution's objection.

¶ 11. The final witness to testify was Dunlap. He denied having any physical contact with Jamie. The jury returned a guilty verdict. Dunlap was sentenced to twenty years in prison.

¶ 12. Dunlap filed a motion for postconviction relief and requested a new trial. In the motion, he asserted, among other things, that Hanson should have been allowed to testify about the contents of her report and that his trial counsel was ineffective for failing to comply with the provisions of the rape shield law. In support of the motion, a report from Dr. Tom Daniels was submitted. Daniels, a psychologist, reviewed Hanson's 1989 report and Jamie's trial testimony. Using a rating scale, the Child Sexual Behavior Inventory, Daniels examined Jamie's unusual behaviors by analyzing the frequency of such behaviors occurring in abused and nonabused children according to the rating scale. Because ea.ch of the unusual behaviors Jamie exhibited was significantly more common in an abused child of her age, Daniels concluded that this fact "strongly suggests that she has been exposed to inappropriate sexual material or experiences." The circuit court denied the postconviction motion. Dunlap appeals.

DISCUSSION

¶ 13. Dunlap argues that the circuit court's evi-dentiary decision precluding him from cross-examining Hanson about Jamie's sexual behavior was in error. The basis for the testimony defense counsel sought from Hanson was found in her 1989 report in which she related information given to her by Smith about Jamie's conduct prior to the assault. Dunlap argues that because Hanson testified that, in her professional opinion, Jamie's behavior was consistent with child sexual assault victims, the door was opened on cross-examination for opinion testimony regarding whether Jamie exhibited behavior consistent with being a child sexual assault victim prior to the incident with Dunlap.

¶ 14. The State disagrees and construes Hanson's testimony as not opening the door to questioning about Jamie's prior sexual behavior. It also contends that the information contained in the 1989 report was inadmissible as hearsay and barred by the rape shield law.

¶ 15. The right to present a defense through the testimony of favorable witnesses and the effective cross-examination of adverse witnesses is grounded in the Confrontation and Compulsory Process Clauses of the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution. See State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990). The primary objective of the Confrontation Clause is to promote the reliability of the evidence against a criminal defendant by rigorously testing it in an adversarial proceeding before a jury. See Maryland v. Craig, 497 U.S. 836, 845 (1990). To accomplish this objective, the defendant must have the opportunity to meaningfully cross-examine witnesses. See State v. Thomas, 144 Wis. 2d 876, 893, 425 N.W.2d 641 (1988).

¶ 16. A defendant's right to present a defense may in some cases require the admission of testimony that would otherwise be excluded under applicable evidentiary rules. See Pulizzano, 155 Wis. 2d at 648; see also State v. Jackson, 216 Wis. 2d 646, 663, 575 N.W.2d 475 (1998). The right to present a defense is not absolute, but rather is limited to the presentation of relevant evidence whose probative value is not substantially outweighed by its potential prejudicial effect. See Pulizzano, 155 Wis. 2d at 646.

¶ 17. The admission of evidence is a decision left to the discretion of the circuit court. See Michael R. B. v. State, 175 Wis. 2d 713, 723, 499 N.W.2d 641 (1993). We will not find an erroneous exercise of discretion where the circuit court applies the facts of record to accepted legal standards. See State v. Kuntz, 160 Wis. 2d 722, 745, 467 N.W.2d 531 (1991). However, a determination of whether the circuit court's actions violate the defendant's constitutional rights to confrontation and to present a defense is a question of constitutional fact. See State v. Heft, 185 Wis. 2d 288, 296, 517 N.W.2d 494 (1994). For purposes of reviewing a question of constitutional fact, we adopt the circuit court's findings of fact unless clearly erroneous, but independently apply those facts to the constitutional standard. See State v. McMorris, 213 Wis. 2d 156, 165, 570 N.W.2d 384 (1997).

¶ 18. While cross-examining Jamie at trial, defense counsel demonstrated that there were numerous discrepancies between her prior statements in 1989 and her testimonies at the preliminary hearing and on direct examination. In an effort to rebut inferences that might diminish the veracity of Jamie's testimony, the State called an expert witness, Hanson, to testify about the common behaviors of child sexual assault victims. On the basis of her education and experience, Hanson testified on direct examination that Jamie behaved consistently with someone who was a six-year-old sexual assault victim in the following ways: she was unable to understand the concept of something being put into the vagina; she was unable to relay all of the information and details of the assault when first questioned about them; and she divulged to a trusted person that she had been assaulted. During cross-examination of Hanson, defense counsel sought to elicit opinion testimony as to whether there were examples of behavior on Jamie's part that occurred before Dunlap's alleged assault but were nonetheless consistent with behavior of child sexual assault victims. The court precluded defense counsel from doing so. We determine that this decision was in error.

¶ 19. We conclude that the State opened the door for Dunlap to cross-examine the expert witness about examples of Jamie's behavior occurring prior to Dunlap's alleged assault that were consistent with behavior of child sexual assault victims. Having offered the expert's conclusions to explain that the discrepancies in Jamie's testimony were not uncommon for child sexual assault victims, the State created an opportunity for Dunlap to explore, other behavior Jamie exhibited that is common for child sexual assault victims. See State v. Wulff, 200 Wis. 2d 318, 344, 546 N.W.2d 522 (Ct. App. 1996) (holding that defendant's trial tactics "opened the door" to prosecution's use of evidence), rev'd on other grounds, 207 Wis. 2d 143, 144-45, 557 N.W.2d 813 (1997). See also State v. Jackson, 212 Wis. 2d 203, 224, 567 N.W.2d 920 (Ct. App. 1997) (Brown, J., dissenting), rev'd, 216 Wis. 2d 646, 575 N.W.2d 475 (1998) (doctrine of curative admission is premised on a basic notion of "fair play"). This was a trial and conviction with no physical evidence. The State's evidence against Dunlap was Jamie's testimony about an incident that occurred eight years earlier. Jamie testified that Dunlap sexually assaulted her. Dunlap testified that he never physically touched Jamie. The determining factor of this case was which party the jury believed was telling the truth. The expert's conclusions bolstered Jamie's testimony, and because Dunlap was denied the opportunity to fully cross-examine the expert about her conclusions, he was denied the right to properly defend himself.

¶ 20. The State contends that Dunlap's cross-examination of Hanson was correctly precluded because it would have been based on inadmissible hearsay evidence — Hanson's 1989 report — and was barred by the rape shield law. We first respond to the State's hearsay claim.

¶ 21. Hanson's 1989 report contained a detailed statement from Smith reporting Smith's concern with Jamie's unusual conduct. Smith died prior to the trial and her statement is classic hearsay. See Wis. Stat. § 908.04(l)(d). Dunlap argues that Smith's statements in Hanson's reports were admissible under the business records exception to the hearsay rule, see Wis. Stat. § 908.03(6); as a statement of recent perception, see Wis. Stat. § 908.045(2); or, under the residual exception to the hearsay rule, see § 908.045(6). The State counters that Smith's statement to Hanson was barred by the rule against hearsay, Smith's statement was a second level of hearsay, and a recognized hearsay exception must be found before it can be admitted. The State relies upon Mitchell v. State, 84 Wis. 2d 325, 267 N.W.2d 349 (1978), and State v. Gilles, 173 Wis. 2d 101, 496 N.W.2d 133 (Ct. App. 1992), to support this argument.

¶ 22. Although it is clearly established that expert witnesses are permitted to base their opinions on hearsay evidence, see Wis. Stat. § 907.03, State v. Watson, 227 Wis. 2d 167, 198, 595 N.W.2d 403 (1999), cautions that "Wisconsin Stat. § 907.03 is not a hearsay exception." Watson teaches that the data upon which the expert's opinion is based cannot be automatically admitted into evidence for the truth of the matter being asserted unless it is admissible under a recognized exception to the hearsay rule. See Watson, 227 Wis. 2d at 198-99. However, Watson recognizes that the trial court "must be given latitude to determine when the underlying hearsay may be permitted to reach the trier of fact through examination of the expert — with cautioning instructions for the trier of fact to head off misunderstanding — and when it must be rigorously excluded altogether." Id. at 200-01.

¶ 23. Watson reminds us that these principles are "especially critical in criminal proceedings . . . where a person's statutory or constitutional rights must be vindicated." Id. at 201. "An essential ingredient of due process is the right to defend against the State's accusations." State v. Tabor, 191 Wis. 2d 482, 496, 529 N.W.2d 915 (Ct. App. 1995).

¶ 24. Although Smith's statement to Hanson is classic hearsay, due process and "fair play" require the admission of the statement about Jamie's unusual behavior observed by Smith before the alleged sexual assault. This is not the type of statement meant to be rigorously excluded by the hearsay rule. "The hearsay rule is designed to reject untrustworthy utterances." State v. Alles, 106 Wis. 2d 368, 379 n.3, 316 N.W.2d 378 (1982). There is some assurance that Smith's statement is trustworthy. Her statement in Hanson's report would have been corroborated by the testimony of Cox, Smith's live-in companion in 1989. In a postconviction offer of proof, Dunlap submitted a police report containing a statement from Cox that "he felt her [Jamie's] behavior was very inappropriate for her age. She would rub up against people and when she sat on your lap she would rub up against or move around on your private parts, like she had been watching movies." Further, "he . . . thought there was something not right with [Jamie]." In addition, a cautionary instruction could have been crafted that would have prevented the jury from misunderstanding the purpose of the admission of the hearsay evidence. See Pulizzano, 155 Wis. 2d at 652-53 (a limiting instruction can negate the potential prejudicial effect of evidence).

¶ 25. The State also argues that the cross-examination testimony was prohibited by the rape shield law, see Wis. Stat. § 972.11. Section 972.11(2)(b) pre-eludes the admission of evidence regarding a complainant's prior sexual conduct or behavior absent the application of a statutory or judicially created exception. See Pulizzano, 155 Wis. 2d at 647-48. A pretrial motion is required to determine if the proffered evidence satisfies one of the exceptions. See Wis. Stat. § 971.31(11).

¶ 26. Dunlap concedes that he did not pursue a pretrial motion on the admissibility of Smith's statement. This failure is not fatal because the evidence of Jamie's unusual preassault behavior did not become significant until the State called Hanson on rebuttal to establish the inference that Jamie's postassault behavior was not inconsistent with the behavior of a child sexual assault victim. Dunlap would not have known the value of this evidence pretrial and cannot have been expected to file a pretrial motion. In seeking the admission of Smith's statement, Dunlap properly made an offer of proof after the State objected to his attempt to elicit the statement from Hanson on cross-examination. Cf. Pulizzano, 155 Wis. 2d at 648-49 (an offer of proof is the proper means to establish that the evidence sought to be admitted was within the defendant's constitutionally protected rights of confrontation and compulsory process):

[Defense Counsel]: But that's still not the point, Your Honor. The point is the jury should not be left with the impression that the reason she [Jamie] displayed behaviors consistent with sexual assault victims is because this defendant is the one who sexually assaulted her if there is evidence to the contrary, and I believe there is evidence to the contrary, and I believe that they have a right to know that based on opening the door and asking these questions.
I'll tell you exactly what I'm getting at, and that is Theresa Hanson made a report back in 1989, and in that report she stated that Susan Smith stated that she had been very concerned about Jamie, wished to share with this agency the fact [that] the child has been involved in a great deal of seductive behavior, she's had to restrict her from being anywhere near her son, that Jamie would touch men in the genital area, would sit on their laps, attempt to stimulate themselves [sic] in a rocking manner. She stated there were times when they would observe Jamie actually humping the family dog. She has also observed Jamie masturbating a great deal. This was also prior to the sexual abuse by Charlie Dunlap.
Now, this witness knows that there were prior indications of prior sexual assault, and yet the questions that are being asked of her are being asked in such a manner [that] they leave the jury to believe all of these behaviors are attributable to this particular incident which is being alleged. And for them not to know that there was a report that she exhibited behaviors prior to this which would account for her having behaviors consistent with child sexual assault victims is not proper for the jury to be able to draw that conclusion and not have the whole picture.

¶ 27. For Dunlap's offer of proof to be effective, it must satisfy the five-part Pulizzano test: "(1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant's case; and (5) that the probative value of the evidence outweighs its prejudicial effect." Id. at 656.

¶ 28. Before turning to the Pulizzano test, we will consider whether the offer of proof was adequate. An offer of proof has two purposes: "first, provide the circuit court a more adequate basis for an evidentiary ruling and second, establish a meaningful record for appellate review." State v. Dodson, 219 Wis. 2d 65, 73, 580 N.W.2d 181 (1998). "The offer of proof need not be stated with complete precision or in unnecessary detail but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt." Milenkovic v. State, 86 Wis. 2d 272, 284, 272 N.W.2d 320 (Ct. App. 1978). Dunlap's offer of proof passes muster.

¶ 29. We conclude that the Pulizzano test is fulfilled. First, there is no dispute that the unusual behavior occurred prior to the alleged assault; it was witnessed by Smith and Cox. Second, the State asked Hanson about certain behavior, abnormal for most six-year-old children, exhibited by Jamie after the alleged assault; the unusual behavior Dunlap wanted to question Hanson about is certainly abnormal behavior for a six-year-old child. Third, Dunlap's expert psychologist, referring to the Child Sexual Behavior Inventory, concluded that Jamie's unusual behavior strongly suggested that she had been exposed to inappropriate material or experiences. The expert's conclusion makes the unusual behavior relevant to material issues — Jamie's credibility and the cause of her unusual behavior. Fourth, the State introduced Hanson's testimony to rehabilitate Jamie by establishing that child victims of sexual assault may exhibit abnormal behavior. Dunlap required this evidence to let the jury know that six-year-old children can exhibit other forms of unusual behavior as the result of a sexual assault and Jamie exhibited some of those forms before the alleged assault. Finally, the evidence is likely prejudicial because the jury could use it for other purposes; a cautionary instruction would go a long way to prevent the jury from going astray.

¶ 30. It is not enough for the evidence to pass muster under the five-part Pulizzano test. We are also required to consider whether the State's interest in prohibiting the evidence requires that it be excluded. See Pulizzano, 155 Wis. 2d at 653. We conclude that Dunlap's constitutional right to present the evidence outweighs the State's interest. The alleged assault occurred in 1989 when Jamie was only six years old. Because the trial took place eight years later, there was no .physical evidence and there had been no eyewitnesses. The trial became a credibility battle between Jamie and Dunlap. Hanson's testimony created the inference that Jamie would not have exhibited certain abnormal behavior unless she had been sexually assaulted. Evidence that Jamie exhibited abnormal behavior before the alleged assault and that such behavior is also associated with child victims of sexual assault constituted a significant element of Dunlap's defense. For these reasons, under the circumstances of this case, Dunlap's right to present the evidence overrides the State's interest.

¶ 31. The harmless error test does not apply because it is subsumed by our conclusions that the exclusion of the evidence deprived Dunlap of a significant and necessary element of his defense. Therefore, we reverse Dunlap's conviction and remand for a new trial.

¶ 32. Before concluding this opinion, we choose to address another argument of Dunlap's because the issue will likely recur at the new trial. This contention concerns evidence presented by the State about Jamie's nightmares. A circuit court's decision about whether to admit evidence is discretionary. See Michael R. B., 175 Wis. 2d at 723. We will not overturn the court's decision unless it erroneously exercised its discretion by incorrectly applying the facts to accepted legal standards. See Kuntz, 160 Wis. 2d at 745.

¶ 33. Jamie's father testified about the content of her nightmares based on information he received from his daughter. He claimed that Jamie's nightmares were about Dunlap returning to her home and killing her parents. Dunlap contested the admission of this evidence, claiming that it was hearsay. The circuit court disagreed, concluding that the evidence was not hearsay because it was not offered to prove the truth of the matter. The court determined that the evidence was admissible because it showed that Jamie's postas-sault behavior was consistent with being a child sexual assault victim. On appeal, Dunlap posits that the evidence's admission was an erroneous exercise of discretion because it is hearsay, irrelevant and prejudicial.

¶ 34. We do not find Dunlap's hearsay argument persuasive. Although we do agree that the nightmare evidence was in fact hearsay, it falls into the category of mental and emotional condition evidence, admissible as an exception to the hearsay rule pursuant to Wis. STAT. § 908.03(3). Admitting this evidence, therefore, was not in error.

¶ 35. Finally, we also find this evidence to be relevant. The testimony of Jamie's father regarding her nightmares showed that his daughter was afraid of Dunlap and also supported her testimony that Dunlap threatened to kill her parents if she revealed to anyone that the sexual assault had occurred. In sum, the nightmare evidence was properly admitted at trial.

CONCLUSION

¶ 36. We conclude that the circuit court erred in denying Dunlap the opportunity to introduce evidence that Jamie exhibited unusual behavior before the alleged sexual assault and that he is entitled to a new trial. First, the State opened the door to the evidence by asking Hanson about abnormal behavior Jamie exhibited after the alleged sexual assault. Second, although the evidence is hearsay, it has some indication of trustworthiness and the circuit court should have admitted the evidence along with giving the jury a cautionary instruction. Third, the evidence meets the five-part Pulizzano test; therefore, Dunlap had a constitutional right to present the evidence. Finally, the evidence could have been a significant element of Dunlap's defense and this prevails over the State's interest in excluding the evidence.

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

       All references to the Wisconsin Statutes are to the 1987-88 version unless otherwise noted.

       The Sixth Amendment to the United States Constitution requires in pertinent part:

        In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor ....
      Article I, section 7 of the Wisconsin Constitution states in pertinent part:
      In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf....

       Wisconsin Stat. § 972.11 provides in part:

        Evidence and practice; civil rules applicable. (1) Except as provided in subs. (2) to (5), the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action. Chapters 885 to 895, except ss. 804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.
      (2)(a) In this subsection, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.
      (b) If the defendant is accused of a crime under s. 940.225, 948.02, 948.025, 948.05, 948.06 or 948.095, any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31(11):
      1. Evidence of the complaining witness's past conduct with the defendant.
      2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.
      3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.
      (c) Notwithstanding s. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (b) 1., 2. or 3.

       Wisconsin Stat. § 971.31(11) provides:

        In actions under s. 940.225, 948.02, 948.025 or 948.095, evidence which is admissible under s. 972.11 (2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.