source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeffrey S. Gibson, Defendant-Appellant.

    Court of Appeals

      No. 00-2399-CR.

      Submitted on briefs January 16, 2001.

    Decided February 6, 2001.

    2001 WI App 71
    (Also reported in 626 N.W.2d 73.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ann N. Knox-Bauer of Stanley.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jerome S. Schmidt, assistant attorney general.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   CANE, C.J.

¶ 1. Jeffrey Gibson appeals from his eighth conviction for operating a motor vehicle while under the influence of an intoxicant, contrary to WlS. Stat. § 346.63(l)(a). Gibson contends that the trial court erred by denying his motion to suppress the blood test results because the blood was taken after he had initially refused the test. He reasons that the implied consent statute provides the exclusive remedy for an OWI suspect's refusal to submit to a chemical test. Additionally, he contends that after the evidence was completed, the trial court erred by granting the State's motion to amend the information to allow the jury to consider whether he was under the influence of an intoxicant, a controlled substance, or both. We reject his arguments and affirm the conviction.

¶ 2. The underlying facts are undisputed. The arresting officer testified that in the early morning hours of May 6, 1999, she observed Gibson's car weaving from side to side on the highway and then suddenly jerking back to the center of the lane. As she followed the car, it suddenly made a right-hand turn in front of Gibson's house and stopped. When the officer first approached Gibson, she noted that he was very slow to react, had bloodshot eyes, slurred speech and emanated a strong odor of alcohol. The officer then had Gibson perform a series of field sobriety tests, all of which indicated that he was impaired.

¶ 3. After Gibson was arrested for OWI, he was taken to a hospital for a blood sample. There, the officer read the Informing the Accused form to Gibson who initially refused to take the requested blood test and asked whether he could instead take a different test. The officer told him no and that the penalties would be increased if he refused the test. She also indicated that there was no other way he was going to be able to get out of the situation other than taking the blood test. Consequently, Gibson indicated that he would submit to the test. The blood test result showed .248 grams of alcohol per 100 milliliters of blood.

Discussion

I. Admission of the Blood Test Result

¶ 4. Gibson argues that the blood test result was erroneously admitted into evidence because he had initially refused to take a blood test, and the only penalty for refusing under the implied consent law is the revocation of operating privileges. It is important to note that Gibson does not challenge the taking of his blood as a violation of State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993). Instead, he argues that Wis. Stat. § 343.305(9)(a) provides the exclusive remedy for a refusal to submit to a chemical test. This section provides in part:

(9) Refusals; notice and court hearing, (a) If a person refuses to take a test under sub. (3)(a), the law enforcement officer shall immediately take possession of the person's license and prepare a notice of intent to revoke, by court order under sub. (10), the person's operating privilege.

¶ 5. Gibson also relies on language in County of Ozaukee v. Quelle, 198 Wis. 2d 269, 277, 542 N.W.2d 196 (Ct. App. 1995), which suggests an OWI suspect has a right to refuse a chemical test, albeit subject to consequences:

Every driver in Wisconsin impliedly consents to take a chemical test for blood alcohol content. Section 343.305(2), STATS. A person may revoke consent, however, by simply refusing to take the test. See § 343.305(9). Thus, a driver has a "right" not to take the chemical test (although there are certain risks and consequences inherent in this choice).

From this "right," and by analogy to Miranda v. Arizona, 384 U.S. 436 (1966), Gibson reasons that "when an arrestee refuses a chemical test, police efforts to compel submission to such a test must cease, except as specified by statute."

¶ 6. This issue presents a legal question, specifically whether the implied consent law provides the exclusive remedy upon a refusal to submit to eviden-tiary testing so that law enforcement cannot obtain evidence by other legal means. This court decides the issue de novo. See State v. Edgeberg, 188 Wis. 2d 339, 344-45, 524 N.W.2d 911 (Ct. App. 1994); see also State v. Reitter, 227 Wis. 2d 213, 223, 595 N.W.2d 646 (1999) (Application of the implied consent statute to an undisputed set of facts, like any statutory construction, is a question of law that the appellate courts review de novo.).

¶ 7. We must keep in mind that the legislature enacted the implied consent law to combat drunk driving. Reitter, 227 Wis. 2d at 223. The law was designed to facilitate the collection of evidence against drunk drivers in order to remove them from the State's highways by securing convictions, not to enhance the rights of alleged drunk drivers. Id. at 224; State v. Crandall, 133 Wis. 2d 251, 258, 394 N.W.2d 905 (1986). Given the legislature's intentions in passing the statute, courts construe the implied consent law liberally. Reitter, 227 Wis. 2d at 223-25.

¶ 8. Gibson's reliance on Quelle is misplaced for two reasons. First, Quelle did not address the issue at hand; it was a "subjective confusion" case. The court therefore did not have an opportunity to evaluate its observation in light of the arguments Gibson raises. It did not consider whether a suspect's refusal must be honored in all instances. Thus, when placed in proper context, it appears that the Quelle court merely concluded that an OWI suspect has the right not to voluntarily take a test, by "revoking" consent. This construction comports with cases that consistently hold that, under appropriate circumstances, a suspect's blood may be withdrawn regardless of consent. See Schmerber v. California, 384 U.S. 757, 770-71 (1966); State v. Thorstad, 2000 WI App 199, ¶ 2, 238 Wis. 2d 666, 618 N.W.2d 240; Bohling, 173 Wis. 2d at 533-34.

¶ 9. Second, and most important, under Gibson's interpretation this passage from Quelle directly contradicts our supreme court's repeated holding that a driver in this state has no right to refuse to take a chemical test. "The consent is implied as a condition of the privilege of operating a motor vehicle upon state highways. By implying consent, the statute removes the right of a driver to lawfully refuse a chemical test." State v. Zielke, 137 Wis. 2d 39, 48, 403 N.W.2d 427 (1987) (citation omitted); see also Reitter, 227 Wis. 2d at 225 ("[DJrivers accused of operating a vehicle while intoxicated have no 'right' to refuse a chemical test."); Crandall, 133 Wis. 2d at 255 ("In Wisconsin there is no constitutional or statutory right to refuse" evidentiary testing); State v. Neitzel, 95 Wis. 2d 191, 200-01, 289 N.W.2d 828 (1980). "The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case." Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Thus, the language in Quelle notwithstanding, Gibson does not have a right to refuse to submit to evidentiary testing.

¶ 10. While at first blush it may arguably appear that the implied consent statute supplies the exclusive remedy for its violation, it does not follow that it precludes law enforcement from pursuing other constitutional avenues for collecting evidence of a traffic violation. In Zielke, 137 Wis. 2d at 41, the court held that WlS. Stat. § 343.305 does not limit the manner in which evidence is obtained to prove that a subject operated while intoxicated. It reasoned that the refusal to submit to a chemical test under § 343.305 is a civil matter and is a separate substantive offense from OWI under § 346.63(1). Importantly, the Zielke court held that the implied consent law did not provide the exclusive means by which police could obtain chemical test evidence of driver intoxication. Id. at 41. The Zielke court concluded "that noncompliance with the procedures set forth in the implied consent law does not render chemical test evidence otherwise constitutionally obtained inadmissible at the trial of a substantive offense involving intoxicated use of a vehicle." Id.

¶ 11. In Thorstad, 2000 WI App. 199 at ¶ 10, we concluded that Bohling does not require that the subject of the blood test give consent or voluntarily take the test, nor does Bohling thus depend on whether the subject of the blood test was deemed to have consented under WlS. Stat. § 343.305. Because the requirements of Bohling were satisfied, we concluded that the blood test in question constituted, a reasonable search under the Fourth Amendment. See Thorstad, 200 WI App at ¶ 17. We arrived at this conclusion independent of any reference to the implied consent law. See id. at ¶¶ 10-17.

¶ 12. Applying the rationale of Bohling, Zielke and Thorstad, we are satisfied that the implied consent statute does not restrict the police from using other constitutional means to collect evidence of the driver's intoxication. Because Gibson does not challenge the blood test as an unreasonable search in violation of the requirements set forth in Bohling, the trial court properly denied Gibson's motion to suppress the blood test result.

II. Amendment of the Information

¶ 13. Gibson contends that after the evidence was completed, the trial court improperly allowed the information to be amended to allow the jury to consider whether he was under the influence of an intoxicant, a controlled substance, or both. The State moved to amend the information in response to Gibson's defense that a prescription drug he was taking, Percodan, could have affected his conduct during the sobriety testing and while he was driving. He concedes that the trial court, in its discretion, can allow the amendment of the information at any time during a trial unless the amendment would be prejudicial to the defendant. See Wis. Stat. § 971.29(2); State v. DeRango, 229 Wis. 2d 1, 26, 599 N.W.2d 27 (Ct. App. 1999), aff'd, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833. However, he claims it was prejudicial to amend the information because there was no evidence that he had enough Percodan in bis system to impair him, nor was there any evidence that it was a controlled substance. We reject this argument.

¶ 14. First, as the State observes, the defense was explicitly told prior to trial that the State would not mention Percodan, but that if the defense chose to do so, the State would ask for an amended information to conform to the evidence. Consequently, the amendment should have come as no surprise.

¶ 15. Second, the amendment did not change the charged crime. There is no prejudice to a defendant when an amendment to the charging document does not change the crime charged, and when the alleged offense is the same and results from the same transaction. State v. Koeppen, 195 Wis. 2d 117, 123, 536 N.W.2d 386 (Ct. App. 1995). Wisconsin Stat. § 346.63(1)(a) sets forth only one motor vehicle crime. It provides that no person may drive or operate a motor vehicle while under the influence of an intoxicant, a controlled substance, or any combination of an intoxicant and/or a controlled substance that renders the person incapable of safely driving. Here, the same crime was charged before and after the amendment and it arose from the same transaction.

¶ 16. Finally, Gibson's blood alcohol content, .248%, provided the jury with more than sufficient evidence of impairment, regardless of the Percodan evidence. The evidence of blood alcohol content, coupled with the arresting officer's observations of Gibson, satisfies us that the validity of the conviction was unaffected by the amendment to the information. See WlS. Stat. § 971.26.

By the Court. — Judgment and orders affirmed.

       All references to the Wisconsin Statutes are to the 1997 — 1998 version unless otherwise noted.

       The Bohling court, relying on Schmerber v. California, 384 U.S. 757, 770-71 (1966), held that when there are exigent circumstances,
      a 'warrantless blood sample taken at the direction of a law enforcement officer is permissible under the following circumstances: (1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.

        State v. Bohling, 173 Wis. 2d 529, 533-34, 494 N.W.2d 399 (1993) (footnote omitted). Gibson does not contend that the four Bohling criteria were not satisfied under the facts of this case.

       This court rejected an analogy to Miranda v. Arizona, 384 U.S. 436 (1966), in the context of the Informing the Accused form's sufficiency.
      As we discussed in Quelle, unlike Miranda warnings which have constitutional underpinnings, the "informing the accused" requirement is purely statutory. The Supreme Court in Schmerber v. California, 384 U.S. 757 (1966), held that a state-compelled blood test following a person's arrest for OMVWI does not violate the Fourth, Fifth or Fourteenth Amendments to the U.S. Constitution. Thus, an arrestee's understanding or comprehension of the information required to be provided under Wis. Stat. § 343.305(4) is not needed to legitimize a knowing and informed waiver of constitutional rights, as is the case with Miranda warnings. We conclude that the legislature could have chosen to implement the implied consent law without directing law enforcement to inform arrestees of any of the information the statute specifies.

        State v. Piddington, 2000 WI App 44, ¶ 16, 233 Wis. 2d 257, 607 N.W.2d 303 (citation omitted).

       From this premise, the court in Zielke concluded that evidence obtained without compliance with implied consent law procedures did not have to be suppressed. State v. Zielke, 137 Wis. 2d 39, 51-52, 403 N.W.2d 427 (1987).

       The original Information alleged only that Gibson was under the influence of an intoxicant.


author: ROGGENSACK, J.

text:
    Henry C. Reget, Plaintiff-Appellant,  v. Norma Zelazo Paige, Samuel Paige, individually and as Trustee under the Maya Zelazo 1981 Trust, the Daniel Zelazo 1981 Trust, and the Nathaniel Zelazo Grandchildren's Trust, Holly Russek, Michael Russek, individually and as Custodian for Evan Russek under the Wisconsin Uniform Gifts to Minors Act, Annette Zelazo Middleton, f/k/a Annette Zelazo, individually and as Trustee for the Ronald Zelazo 1984 Trust, Nathaniel K. Zelazo, individually and as Trustee with his successors in trust of the Helene Zelazo and Nathaniel K. Zelazo 1992 Revocable Trusts dated February 12, 1992 as amended from time to time, Ronald Zelazo, individually and as Custodian for Daniel Zelazo and Maya Zelazo under the Wisconsin Uniform Gifts to Minors Act and as Trustee for the Daniel Zelazo, David E. Zelazo and Maya Zelazo 1991 Trusts dated December 18, 1991, Ziona Zelazo, individually and as Custodian for Daniel Lev-Arie Zelazo under the Wisconsin Uniform Gifts to Minors Act and Astronautics Corporation of America, a Wisconsin corporation, Defendants-Respondents. Henry C. Reget, Plaintiff-Appellant, v. Annette Zelazo Middleton, f/k/a Annette Zelazo, individually and as Trustee for the Ronald Zelazo 1984 Trust, Ronald Zelazo, individually and as Custodian for Daniel Zelazo and Maya Zelazo under the Wisconsin Uniform Gifts to Minors Act and as Trustee for the Daniel Zelazo, David E. Zelazo and Maya Zelazo 1991 Trusts dated December 18, 1991 and Ziona Zelazo, individually and as Custodian for Daniel Lev-Arie Zelazo under the Wisconsin Uniform Gifts to Minors Act, James A. Lovell, Jr., Hans Mark and William L. Staples, Defendants-Respondents.
    Court of Appeals

      No. 99-0838.

      Submitted on briefs September 12, 2000.

    Decided February 8, 2001.

    2001 WI App 73
    (Also reported in 626 N.W.2d 302.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James T. Martin and John E. Varpness of Gislason, Martin & Varpness, P.A. of Edina, Minnesota.
    On behalf of the defendants-respondents, James A. Lovell, Jr., William L. Staples and Dr. Hans Mark, the cause was submitted on the brief of Craig M. White oiWildman, Harrold, Allen & Dixon of Chicago, Illinois and Mark E. Sostarich of Petrie & Stocking S.C. of Milwaukee.
    On behalf of the defendants-respondents, Norma Zelazo Paige, Samuel Paige, Holly Russek, Michael Russek, Annette Zelazo Middleton, Nathaniel K. Zelazo, Ronald Zelazo, Ziona Zelazo, and Astronautics Corporation of America, the cause was submitted on the brief of Stephen E. Kravit, Mark M. Leitner and Joseph S. Goode of Kravit, Gass, Hovel & Leitner S.C. of Milwaukee.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.

      Petition to review denied.

   ROGGENSACK, J.

¶ 1. Henry Reget, a minority shareholder in Astronautics Corporation of America (Astronautics), sued the officers, directors, other shareholders who are related to Astronautics's founder and the corporation for breach of fiduciary duty. He seeks damages, a judicially ordered payment of dividends and the purchase of his stock at a price acceptable to him. He also seeks dissolution of the corporation based on the same factual allegations that he made to support his claims of breach of fiduciary duty. We conclude that: (1) for all defendants, except those who are directors, Reget's amended complaint fails to state claims upon which relief can be granted; (2) for the directors, he has made no factual showing sufficient to draw into question the initial presumption of the business judgment rule; and (3) there has been no showing of oppression. Therefore, we affirm the circuit court's grant of summary judgment dismissing the amended complaint.

BACKGROUND

¶ 2. Reget is a minority shareholder of Astronautics, in which he owns nineteen shares. He obtained ten shares in 1971 in lieu of being repaid a $25,000 obligation due him, and he also purchased nine shares in 1972 from a person not a party to this lawsuit, for approximately $25,000. Reget has never been an officer, director or employee of Astronautics, nor has he ever directly invested any money in the company.

¶ 3. Astronautics is a Milwaukee-based corporation that was founded in 1959. It designs, develops and manufactures electronic systems used in commercial land, sea, aerospace and military equipment. Astronautics and Kearfott Guidance and Navigation Corporation (Kearfott), a wholly owned subsidiary Astronautics acquired in 1988, employ more than 2,000 people and maintain facilities around the world.

¶ 4. Astronautics is a closely held corporation, the shares of which have no restriction on their sale but are not traded on any public market. However, it is not a statutory close corporation under ch. 180, subch. XVIII of the Wisconsin Statutes. It is also an IRS sub-chapter C corporation, rather than a subchapter S corporation. There are 1,811 shares of Astronautics outstanding, of which 286 shares are owned by shareholders with no family connection to Nathaniel Zelazo, Astronautics's founder.

¶ 5. Although there is no established market for Astronautics, there have been sales, some in which Reget participated or attempted to participate. For example, in 1982 a trust company sold fifty-two shares of Astronautics, and Reget bid $4,000 for one share. His bid was unsuccessful because the trust company preferred to sell the stock as a lot, which it did at $3,333 per share. In 1984, Astronautics offered to purchase all of the shares of any shareholder who owned no more than sixty-five shares for $9,800 a share. Reget declined Astronautics's offer. Single shares of Astronautics were sold for $10,000 each in 1984 and 1995. Ten thousand dollars is the highest price ever paid for a single share of Astronautics.

¶ 6. Astronautics has never paid a dividend. Its board of directors, which decides whether to pay dividends, has concluded that Astronautics would be best served by reinvesting its profits in research, development, acquisition of other companies and their assets, and profit sharing for its employees. To compete with such mega-companies as Honeywell, Litton, and Allied Signal, the board has determined that it is necessary to maintain significant cash reserves. The board of directors also sets the compensation for Astronautics's employees, except for those employees who are also directors. Their compensation is set by the three outside directors, James Lovell, Jr., William Staples and Hans Mark, who comprise a separate compensation committee.

¶ 7. Reget's suit claims breaches of fiduciary duty by all officers, all directors and those shareholders of Astronautics who have a family connection to Nathaniel Zelazo. He seeks dissolution of the corporation based on what he alleges is oppression under WlS. STAT. § 180.1430(2)(b) (1997-98), perpetrated by the same defendants. He also prays the court to award damages, dividends and the purchase of his stock at its "fair value."

¶ 8. Three concerns drive Reget's claims of breach of fiduciary duty and his allegation of oppression: (1) the defendants have not maintained a market for the sale of his stock or offered to purchase his stock at a price he believes is fair; (2) Astronautics has not paid dividends, despite its cash-rich position; and (3) five family members have received compensation for their services to the corporation that he believes is too high.

¶ 9. In their answers, the defendants admit that they do not maintain a market for Astronautics stock, that they have not offered to purchase Reget's stock at a price acceptable to him and that the company has never paid a dividend. However, they deny that excessive compensation has been paid. They assert the following affirmative defenses: failure to state a claim on which relief can be granted, statute of limitations, business judgment rule, derivative claims and claim preclusion under WlS. Stat. § 180.0828. The circuit court dismissed Reget's claims on summary judgment. Reget appeals.

DISCUSSION

Standard of Review.

¶ 10. We apply the same summary judgment methodology as the circuit court. Cemetery Servs., Inc. v. Department of Regulation & Licensing, 221 Wis. 2d 817, 823, 586 N.W.2d 191, 194 (Ct. App. 1998). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or of law. Id. If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute which entitle the opposing party to a trial.

¶ 11. Whether a minority shareholder has been oppressed within the meaning of Wis. Stat. § 180.1430(2)(b) is a mixed question of fact and law. Whether certain events occurred are questions of historic fact determined by the circuit court, which we will not reverse unless they are clearly erroneous. Wis. Stat. § 805.17; State v. Badker, 2001 WI App 27, ¶ 8, 240 Wis. 2d 460, 469, 623 N.W.2d 142, 146. However, the determination of whether the historic facts as found by the circuit court, or as agreed to by the parties, constitute oppression is a question of law, which we decide de novo. Davis v. Sheerin, 754 S.W.2d 375, 380 (Tex. Ct. App. 1988).

Breach of Fiduciary Duty.

¶ 12. A corporate officer or director is under a fiduciary duty to act in good faith and to deal fairly in the conduct of all corporate business. Modern Materials, Inc. v. Advanced Tooling Specialists, Inc., 206 Wis. 2d 435, 442, 557 N.W.2d 835, 838 (Ct. App. 1996). This duty extends to the corporation, itself, and to its shareholders. Id.; Grognet v. Fox Valley Trucking Serv., 45 Wis. 2d 235, 241, 172 N.W.2d 812, 816 (1969). Reget asserts he brings his claims for breach of fiduciary duty individually, rather than as a derivative action, wherein he would have been required to show that he adequately represented the interests of the corporation in enforcing a right of the corporation. Wis. Stat. § 180.0741; Read v. Read, 205 Wis. 2d 558, 565, 556 N.W.2d 768, 771 (Ct. App. 1996). However, to bring individual claims for breach of a fiduciary duty, Reget's amended complaint must allege facts sufficient, if proved, to show an injury that is personal to him, rather than an injury primarily to the corporation. Jorgensen v. Water Works, Inc., 218 Wis. 2d 761, 776-77, 582 N.W.2d 98, 104 (Ct. App. 1998). He also must show that each defendant had a fiduciary duty to him in respect to corporate affairs and that the conduct alleged in his amended complaint, as to each defendant, constitutes a breach of that duty. Rose v. Schantz, 56 Wis. 2d 222, 228, 201 N.W.2d 593, 597 (1972).

¶ 13. In support of Reget's claims for breach of fiduciary duty, the amended complaint alleges or permits reasonable inferences that: (1) the officers, directors, shareholders and corporation did not maintain a general market for the sale and purchase of Astronautics stock; (2) Astronautics offered to purchase his stock at what he believes was an inadequate price, which offer he refused; (3) he asked the individual defendants and the corporation to purchase his shares at what he believes is a fair price, but they have not responded to his offer; (4) no dividends were paid to the shareholders, rather, Astronautics bought other companies and assets of other companies with its profits; (5) the corporation wasted corporate funds by paying five family members "substantial compensation in the form of salaries, bonuses, profit sharing contributions, deferred compensation benefits and certain entitlements to cash surrender value of life insurance policies on key employees of Astronautics"; and (6) the "substantial compensation" paid to five employees was payment in lieu of dividends. We conclude that the allegations made and their reasonable inferences, except for the sixth one stated immediately above, are insufficient to state claims for a breach of fiduciary duty by any defendant.

1. Failure to Make a Market.

¶ 14. In regard to the first allegation that the defendants have not established a market for Astronautics stock, Reget provides no support for his basic assertion that Astronautics or any of its officers, directors or shareholders have a duty to do so. He cites no authority that would establish a duty to make a market in Astronautics stock or to purchase his stock at a price acceptable to him. A claim for breach of fiduciary duty, of course, is bottomed on a duty that is breached. Rose, 56 Wis. 2d at 228, 201 N.W.2d at 597. Under the facts alleged, none of the defendants have a duty to Reget in this regard. Therefore, we conclude that allegations that there is no market for Astronautics stock and that the corporation, officers, directors or other shareholders will not make one or purchase Reget's stock at a price acceptable to him cannot support a claim for breach of fiduciary duty.

2. Nonpayment of Dividends.

¶ 15. In regard to the second allegation, that no dividends have been paid to the shareholders, we note that until the profits of a corporation are declared as a dividend, the shareholders have no right or title in them and such profits belong exclusively to the corporation. Franzen v. Fred Rueping Leather Co., 255 Wis. 265, 271-72, 38 N.W.2d 517, 520 (1949). Rather than being used to pay dividends, corporate profits may be added to the assets of the corporation to use for other corporate purposes. Id. at 272, 38 N.W.2d at 520. As with his allegation concerning the lack of a market for his stock, Reget cites no authority for the assertion that a board of directors has a duty to pay dividends to shareholders instead of using profits for other purposes. However, he implies that the compensation paid five executives was excessively high and should be viewed as partially a payment of dividends. If he can provide evidentiary facts, which, if proved, would show bad faith by the six directors in their employee compensation decisions, he will have stated a claim and made a prima facie case sufficient to survive summary judgment in regard to the six directors. We examine those allegations of compensation in lieu of dividends in the section on officers' and directors' compensation. However, in regard to all other defendants, Reget has identified no duty that any of them have breached. Accordingly, the amended complaint fails to state claims for breach of fiduciary duty in regard to the lack of dividends as to those defendants.

3. Compensation of Officers and Directors.

¶ 16. In regard to the third allegation that "substantial compensation" is being paid to five employees of the corporation, therefore wasting corporate assets, that is usually an allegation of an injury primarily to the corporation. Generally, a claim of waste of corporate assets must be pursued in a derivative action; it cannot be brought as a direct action by Reget. Rose, 56 Wis. 2d at 229, 201 N.W.2d at 598; Read, 205 Wis. 2d at 570, 556 N.W.2d at 773. Additionally, Reget was never employed by Astronautics, so the compensation paid to employees is not at the expense of compensation formerly paid to him, as occurred in Jorgensen. Furthermore, he has not even attempted to identify acts by most of the shareholders he named that relate to decisions about employee salaries. Therefore, his amended complaint does not support individual claims for a breach of fiduciary duty, except as decided above, for the six directors and the inference that they have set higher compensation for Nathaniel Zelazo, Norma Paige, Ronald Zelazo, Michael Russek and Holly Rus-sek instead of paying them dividends. Accordingly, we affirm the circuit court's dismissal of those claims as to all defendants except Nathaniel Zelazo, Norma Paige, Ronald Zelazo, James Lovell, Jr., William Staples and Hans Mark.

¶ 17. We consider Reget's demand for judicial examination of the corporate business decision setting compensation in light of Wisconsin's adherence to the business judgment rule. The business judgment rule is a judicially created doctrine that contributes to judicial economy by limiting court involvement in business decisions where courts have no expertise and contributes to encouraging qualified people to serve as directors by ensuring that honest errors of judgment will not subject them to personal liability. See Steven v. Hale-Haas Corp., 249 Wis. 205, 23 N.W.2d 620 (1946). It generally works to immunize individual directors from liability and protects the board's actions from undue scrutiny by the courts. See Kenneth B. Davis, Jr., Once More, The Business Judgment Rule, 2000 Wis. L. Rev. 573 (2000). As the court explained in Hale-Haas:

[T]his court will not substitute its judgment for that of the board of directors and assume to appraise the wisdom of any corporate action. The business of a corporation is committed to its officers and directors, and if their actions are consistent with the exercise of honest discretion, the management of the corporation cannot be assumed by the court.

Id. at 221, 23 N.W.2d at 628 (citation omitted).

¶ 18. Procedurally, the business judgment rule creates an evidentiary presumption that the acts of the board of directors were done in good faith and in the honest belief that its decisions were in the best interest of the company. Kaplan v. Centex Corporation, 284 A.2d 119, 124 (Del. Ch. 1971). Furthermore, it has long been held in Wisconsin that courts will grant directors wide discretion in their decisions about the compensation paid to those who perform services for the corporation when it is honestly exercised. Gauger v. Hintz, 262 Wis. 333, 345, 55 N.W.2d 426, 433 (1952). And, as the Wisconsin Supreme Court has noted:

In the absence of evidence tending to show overreaching, fraud, and unreasonableness in the matter of fixing a salary for a particular job, a court ought not substitute its judgment for that of the board of directors and assume to appraise the wisdom of any corporate action.

Id. at 345-46, 55 N.W.2d at 433. One who complains about the compensation paid to a director who is employed by the corporation must show something more than the compensation paid is higher than he believes is reasonable to overcome the presumption that "the laborer is worthy of his hire." Id. at 346, 55 N.W.2d at 433 (internal quotations omitted). In Einhorn v. Culea, 2000 WI 65, 235 Wis. 2d 646, 612 N.W.2d 78, the supreme court recently discussed the business judgment rule. The court opined that judicial review of internal corporate business decisions is unavailable for informed good faith decisions made in the honest belief that the actions taken were in the corporation's best interests. Id. at ¶ 19.

¶ 19. Here, the directors have raised the business judgment rule as a defense to Reget's claim that the compensation paid to Nathaniel Zelazo, Norma Paige, Ronald Zelazo, Michael Russek and Holly Rus-sek is so substantial that it must be viewed as partially a payment of dividends. They have provided corporate documents which show that the board of directors establishes the compensation of these employees, except those who are also board members: Nathaniel Zelazo, Norma Paige and Ronald Zelazo. The salaries of those three employees are set by a compensation committee comprised of the three board members who have no stock in Astronautics and are not part of Nathaniel Zelazo's extended family.

¶ 20. To survive summary judgment on this issue in the face of the business judgment rule, Reget must come forward with sufficient evidentiary facts to make a prima facie case that the outside directors willfully compensated Nathaniel Zelazo, Norma Paige and Ronald Zelazo excessively for the services they provided to the corporation in an effort to pay them dividends, which they willfully withheld from other shareholders. However, Reget has provided no factual evidence in opposition to the defendants' submissions supporting summary judgment, which would permit a reasonable inference that Lovell, Staples and Mark undertook their duties with anything other than absolute good faith. Therefore, because Reget has not met this threshold requirement, the business judgment rule shields the compensation committee's decisions from judicial review of the amount of compensation paid to Nathaniel Zelazo, Norma Paige and Ronald Zelazo for the services each provided to the corporation.

¶ 21. In regard to the compensation the corporation paid Holly Russek and Michael Russek, again, Reget has provided nothing by way of evidentiary facts that would imply that the board's decisions about their compensation were made in anything other than good faith. He has shown no evidence of fraud or bad faith. He relies solely on their membership in the extended family of Nathaniel Zelazo and an assertion that Astronautics had the ability to pay dividends but did not. However, those facts do not give rise to a reasonable inference that Lovell, Staples, Mark, Nathaniel Zelazo, Norma Paige and Ronald Zelazo set Holly's and Michael's compensations in bad faith as a way to disguise payments of dividends to them that other shareholders did not receive. As we noted above, Astronautics has no obligation to pay dividends simply because it can, and Michael's and Holly's connection to Nathaniel Zelazo is common to many shareholders who received no dividends or other compensation from Astronautics.

¶ 22. Reget argues that his expert, Gerald Gray, provided a basis for finding bad faith. In his deposition testimony, Gray opines that because his knowledge of the competence, working hours and duties of each of the five employees is incomplete, so is his opinion that their compensation is on the high end of what he might expect. Paying compensation that one person believes may be on the high end is not sufficient to support a finding or a reasonable inference of fraudulent conduct or bad faith necessary to overcome the presumption of good faith afforded actions of directors under the business judgment rule. Accordingly, we conclude that the defendants have established a prima facie factual basis for the dismissal of the breach of fiduciary duty claims against all board members, and Reget has provided no facts or reasonable inferences from facts which, if proven, would meet the initial showing necessary to draw into question the presumption of good faith established by the business judgment rule. Therefore, we affirm the circuit court's dismissal of all claims for breach of fiduciary duty against all defendants.

Oppression.

¶ 23. Reget also sues for the dissolution of Astronautics because of what he contends is oppressive conduct under Wis. Stat. § 180.1430(2)(b), which states in relevant part:

The circuit court for the county where the corporation's principal office ... may dissolve a corporation in a proceeding:
(2) By a shareholder, if any of the following is established:
(b) That the directors or those in control of the corporation have acted, are acting or will act in a manner that is illegal, oppressive or fraudulent.

An allegation of oppression is not a claim for relief, but rather, a legal standard to be fulfilled before a circuit court may order liquidation of a corporation based on the acts of those who control it. Davis, 754 S.W.2d at 380. Although the statute does not define "oppressive," we defined oppressive conduct for the purposes of this statute in Jorgensen:

[BJurdensome, harsh and wrongful conduct; a lack of probity and fair dealing in the affairs of the company to the prejudice of some of its members; or a visual departure from the standards of fair dealing, and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely.

Jorgensen, 218 Wis. 2d at 783, 582 N.W.2d at 107 (quoting Baker v. Commercial Body Builders, Inc., 507 P.2d 387, 393 (Or. 1973)).

¶ 24. In Jorgensen, we approached WlS. Stat. § 180.1430(2)(b) as a ground for dissolution based on the Jorgensens' allegation of the breach of a fiduciary duty individual to them. Jorgensen also involved a closely held corporation, but with a much smaller nucleus of shareholders. Duane and Sharon Jorgensen were founding members of the corporation, and together with four other shareholders, they capitalized the corporation at its inception. Initially, all six were members of the board of directors, Duane was the president, and each couple received the same weekly payment from the corporation. Duane claimed that he had an agreement to be the president of the corporation throughout his lifetime. However, when he complained about some of the other directors' activities, the others voted him and Sharon off the board and removed Duane as president of the corporation. They also terminated the weekly payments which the Jorgensens had received since the inception of the corporation but continued to make weekly payments to themselves. We concluded that allegations of removing Duane as president, removing Duane and Sharon as directors and failing to pay weekly payments to the Jorgensens while continuing to pay them to other shareholders stated a claim for an injury personal to the Jorgensens. If proven, we reasoned that it could rise to the level of oppression pursuant to § 180.1430(2)(b).

¶ 25. The definition of oppressive conduct we adopted in Jorgensen requires that those in control of a corporation willfully treated some of the shareholders in a wrongful manner to which other shareholders were not subjected. We also concluded that when oppression is alleged in regard to the operation of a closely held corporation, its factual underpinnings are similar to those of an individual claim of breach of fiduciary duty to a minority shareholder. Jorgensen, 218 Wis. 2d at 783, 582 N.W.2d at 107. Therefore, oppression requires that the complaining shareholder prove that those in control of the corporation willfully and wrongfully inflicted a direct injury upon him that benefited the stockholders who were not injured.

¶ 26. Reget relies on the same factual allegations to support his contention that he has been oppressed as he does for his claims for breach of fiduciary duty. We have already concluded that no defendant has a duty to maintain a market or to purchase Reget's stock at a price acceptable to him. We also note that all defendants could complain of the same lack of a market as does Reget. Therefore, there can be no oppression bottomed on these allegations. In regard to the nonpayment of dividends, as we concluded, no shareholder is treated in a manner more favorable than Reget. None received dividends; all were equally subjected to the board's decision to use surplus profits for other corporate purposes. And finally, in regard to Reget's concern about the level of compensation paid to five employees, he has made no showing sufficient to draw into question the good-faith basis for the board's decisions. Decisions of the board made in good faith cannot satisfy the definition we established for oppressive conduct in Jorgensen. Accordingly, we conclude that the circuit court correctly dismissed Reget's request for dissolution of Astronautics based on oppression.

CONCLUSION

¶ 27. We conclude that: (1) for all defendants, except those who are directors, Reget's amended complaint fails to state claims upon which relief can be granted; (2) for the directors, he has made no factual showing sufficient to draw into question the initial presumption of the business judgment rule; and (3) there has been no showing of oppression. Therefore, we áffirm the circuit court's judgment dismissing the amended complaint.

By the Court. — Judgment affirmed.

       Reget submitted a document showing a total of 1,975 outstanding shares of Astronautics. The difference is due to the 164 shares of issued and outstanding stock owned by the corporation.

       The same document referenced in footnote 1 also indicates that persons who are not part of the extended family of Nathaniel Zelazo own 148 shares. This difference is not significant to our decision.

       Astronautics purchased Kearfott, one of its wholly owned subsidiaries, for approximately $285,000,000 through a large cash payment and the assumption of debt. Astronautics has also purchased the assets of Pathfinder Engineering Corporation and Cirrus Corporation in a similar fashion.

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

       Reget's amended complaint also alleges that there have been transfers of shares to family members by gift and that the actual fair value of the stock was not indicated in those transfers. Those allegations, even if true, pertain to taxation and reporting obligations outside the scope of this appeal. Therefore, we will not deal with them further in this opinion.

       WlS. STAT. § 180.0828 states in relevant part:
      Limited liability of directors. (1) ... a director is not liable to ... shareholders ... for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a director, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:
      (a) A wilful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director has a material conflict of interest.
      (c) A transaction from which the director derived an improper personal profit.
      (d) Wilful misconduct.

       Reget refused the corporation's 1984 offer to purchase his stock at $9,800, a figure very close to the $10,000 per stock share paid by individuals trading the stock as late as 1995 and one which would have turned his $50,000 stock investment into $186,200.

       We note Reget cites no contract between him and the corporation to pay a dividend rather than using the corporate profits for research, development, acquisitions and other corporate purposes. Cf. Franzen v. Fred Rueping Leather Co., 255 Wis. 2d 265, 39 N.W.2d 161 (1949); Jorgensen v. Water Works, Inc., 218 Wis. 2d 761, 776-77, 582 N.W.2d 98, 104 (Ct. App. 1998). .

       The family member directors are: Nathaniel Zelazo, the founder of the company, who is the chief executive officer, a shareholder and a member of the board of directors; Norma Paige, a co-founder of the company, who is a shareholder, chair of the board of directors and the executive vice president; and Ronald Zelazo, a shareholder, member of the board of directors and president.

        Outside directors are: James Lovell, Jr., a non-shareholder director, the past commander of NASA's Apollo XIII space mission, a retired astronaut and U.S. Naval Officer; William Staples, a non-shareholder director and the retired executive vice president of Bank of America-Illinois; and Hans Mark, a non-shareholder director, past secretary of the U.S. Air Force, a director of NASA and chancellor of the University of Texas System. Subsequent to the filing of this lawsuit, Mark resigned from the board because of his appointment to the United States Office of the Director of Defense, Research and Engineering and his confirmation to that office by the United States Senate.

       Other jurisdictions have also concluded that paying compensation in excess of what a minority shareholder believes is appropriate is a claim of injury primarily to the corporation and must be brought as a derivative action. Heller v. Boylan, 29 N.Y.S.2d 653 (N.Y. Sup. Ct.), aff'd, 32 N.Y.S.2d 131 (N.Y. App. Div. 1941); Mann-Paller Found., Inc. v. Econometric Research, Inc., 644 F. Supp. 92 (D.D.C. 1986).

       It may be argued that a director who sets his own salary is not protected by the business judgment rule. See Steven v. Hale-Haas Corp., 249 Wis. 205, 221,23 N.W.2d 620, 627 (1946). However, that concern does not arise here.

       The record shows that Norma Paige, as chair of the board of directors, does not vote unless there is a tie vote.


author: VERGERONT, J.

text:
    Helen Pritchard, Mason Sproul and Stephan T. Tadevich, Plaintiffs-Appellants, v. Madison Metropolitan School District, Carol J. Carstensen in her official capacity as President of the Board of Education for the Madison Metropolitan School District, Defendant-Respondent, Madison Teachers, Inc., Intervenor-Respondent.
    Court of Appeals

      No. 00-0848.

      Submitted on briefs November 30, 2000.

    Decided February 8, 2001.

    2001 WI App 62
    (Also reported in 625 N.W.2d 613.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Daniel Kelly of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of John E. Thiel of Godfrey & Kahn, S.C., Appleton
    On behalf of the intervening defendant-respondent, the cause was submitted on the brief of Lester A. Pines and Tamara B. Packard of Cullen, Weston, Pines & Bach, Madison.
    A nonparty brief was filed by Christopher Krim-mer, Esq. of AIDS Resource Center of Wisconsin, Milwaukee, and Patricia M. Logue, Esq. and Marvin C. Pegúese, Esq. of Lambda Legal Defense and Education Fund, Inc., Chicago, Illinois, for defendants-respondents and intervenor-respondent.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.

      Petition to review denied.

   VERGERONT, J.

¶ 1. This appeal concerns the statutory authority of the Madison Metropolitan School District (District) to expend funds to provide health insurance benefits to designated family partners of school district employees. Helen Pritchard, Mason Sproul, and Stephan Tadevich, all residents and taxpayers in the City of Madison, appeal the trial court's order deciding that the District does have the statutory authority and dismissing their complaint for declaratory and injunctive relief. They contend the trial court erred because WlS. Stat. § 66.185 (1997-98) authorizes the District to provide health insurance benefits only to employees, officers and their spouses and dependant children, and no other statute authorizes the District to provide health insurance benefits to any other persons. We conclude § 66.185 does not prohibit the District from providing health insurance benefits to persons other than those specified in that statute. We also conclude the powers granted to the District in WlS. Stat. ch. 120, broadly construed as mandated by Wis. Stat. § 118.001, include the authority for the District to provide the benefits in question. We therefore affirm.

BACKGROUND

¶ 2. Section VII B of the Collective Bargaining Agreement between the District and Madison Teachers, Inc. (MTI) for the July 1, 1997-June 30, 1999 term provides that eligible teachers have the option of choosing health insurance coverage through Wisconsin Physicians Service, Dane County Health Maintenance Program (WPS), or Group Health Cooperative Health Maintenance Organization (GHC). A teacher covered by the contract may register for health insurance benefits either as an individual or as a family. Family coverage includes either (a) the employee, the employee's spouse, and dependent children, or (b) the employee, the employee's designated family partner, and their dependent children. The contract establishes the criteria for qualification as a designated family partner.

¶ 3. In excess of thirty of the District's teachers have registered and received health insurance benefits for their designated family partners under these provisions. For WPS coverage, the teachers pay 10% of the monthly premiums and the District pays 90% of the monthly premiums; for GHC coverage, the District pays 100%. The District pays its contribution toward the health insurance premiums mandated by the contract directly to either WPS or GHC, depending on the employee's election.

¶ 4. The Collective Bargaining Agreement between the District and MTI, which went into effect on July 1,1999, continues these provisions unaltered.

¶ 5. The complaint in this action seeks a declaration that the contract provisions are "ultra virus" because the District has no statutory authority to pay for health insurance benefits for unmarried partners of school district employees. They also seek an injunction prohibiting the District from using public funds to pay for health insurance benefits for unmarried partners of school district employees. MTI was permitted to intervene by stipulation. Based on the parties' stipulation of facts, the trial court made these conclusions of law: (1) the powers of the District to operate schools under WlS. STAT. §§ 120.44, 120.13 and 118.001 are broad in their expression and are to be broadly construed; (2) WlS. Stat. § 66.185 does not prohibit the District from providing health care coverage to designated family partners; and (3) the benefits provided are wages, which the District has the express authority under WlS. STAT. §§ 111.70(l)(a) and 118.21(1) to negotiate and to pay. Accordingly, the court denied the request for declaratory and injunctive relief and dismissed the complaint.

DISCUSSION

¶ 6. On appeal, the plaintiffs contend the trial court erred in interpreting WlS. Stat. § 66.185, which, they assert, authorizes the District to provide health insurance benefits only to employees, officers, and their spouses and dependant children. According to the plaintiffs, that statute is a limitation on the District's authority that is not erased or overridden by the more general provisions relating to the District's authority in WlS. Stat. chs. 118 and 120 or by the Municipal Employment Relations Act (MERA). The District and MTI respond that § 66.185 does not prohibit the District from exercising the authority it has under other statutes to provide health insurance benefits to persons not enumerated in § 66.185.

¶ 7. The construction of statutes and their application to a particular set of facts is a question of law, which we review de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). However, despite our de novo standard of review, we benefit from this trial court's analysis. Id.

¶ 8. The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Id. If the words of the statute convey the legislative intent, that ends our inquiry; we do not look beyond the plain language of a statute to search for other meanings, but simply apply the language to the facts before us. Id. at 255-56. It is only when the language of the statute is ambiguous that we examine the scope, history, context, subject matter, and the object of the statute in order to ascertain the intent of the legislature. Id. at 256. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Id. Whether a statute is ambiguous is a question of law. Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

¶ 9. Wisconsin Stat. § 66.185 provides:

Hospital, accident and life insurance. Nothing in the statutes shall be construed to limit the authority of the state or municipalities, as defined in s. 345.05, to provide for the payment of premiums for hospital, surgical and other health and accident insurance and life insurance for employes and officers and their spouses and dependent children, and such authority is hereby granted. A municipality may also provide for the payment of premiums for hospital and surgical care for its retired employes. In addition, a municipality may, by ordinance or resolution, elect to offer to all of its employes a health care coverage plan through a program offered by the group insurance board under ch. 40. Municipalities which elect to participate under s. 40.51 (7) shall be subject to the applicable sections of ch. 40 instead of this section. (Footnote added.)

¶ 10. The dispute between the parties on the meaning of WlS. Stat. § 66.185 appears to be not over what it expressly authorizes the District to do, but over whether that express authority limits the reach of other statutes. We agree with the plaintiffs that the plain language of this statute grants the authority to the District to provide for the payment of health insurance premiums to only those classes of persons listed there. However, we also conclude that the plain language of § 66.185 does not prohibit the District from providing health insurance benefits to other persons, if that authority is granted by other statutes. We therefore examine the other statutes that, according to the District and MTI, do provide this authority and then examine the relationship between § 66.185 and these statutes.

¶ 11. Wisconsin Stat. § 120.44(1) provides that a unified school district has "the power to sue and be sued, to levy and collect taxes, to acquire, hold and dispose of property and to do all other things reasonable for the performance of its functions in operating a system of public education." Under WlS. STAT. §§ 120.44(2) and 120.12(1), the management and control of the District is vested in the school board. Wisconsin Stat. § 120.13 provides the school board "may do all things reasonable to promote the cause of education, including establishing, providing and improving school district programs, functions and activities for the benefit of pupils"; and this includes "spend[ing] money as needed to meet the immediate expenses of operating and maintaining the public instruction in the school district," § 120.13(33). In addition, WlS. Stat. § 118.001 provides:

Duties and powers of school boards; construction of statutes. The statutory duties and powers of school boards shall be broadly construed to authorize any school board action that is within the comprehensive meaning of the terms of the duties and powers, if the action is not prohibited by the laws of the federal government or of this state.

¶ 12. The plaintiffs contend that, according to the rule of statutory construction "expressio unius est exclusio alteráis," these statutory provisions do not give authority for the District to provide health insurance benefits to classes of persons not specified in Wis. Stat. §66.185. Under that rule, the enumeration of specific alternatives in a statute shows a legislative intent that any alternative not specifically enumerated is to be excluded. C.A.K. v. State, 154 Wis. 2d 612, 621, 453 N.W.2d 897 (1990). Accordingly, the plaintiffs argue, the listing of specific classes of persons in § 66.185 is an indication of legislative intent that the District may not provide health insurance benefits to other classes of persons, and they rely on the legislative history of § 66.185 to support this argument. They also assert that, as a statute specifically addressed to the District's authority to provide health insurance benefits, §66.185 takes precédence over the statutes addressing the District's authority in more general terms.

¶ 13. We do not find the rule of "expressio unius est exclusio alterius" applicable in this context. When we consider statutes that, though related, were not enacted at the same time such that we can say they were intended as a comprehensive scheme, the fact that the older statute specifically lists certain powers does not necessarily mean the legislature intended a broadly worded, later enacted statute be thus limited. See Columbia Hosp. Ass'n v. City of Milwaukee, 35 Wis. 2d 660, 669, 151 N.W.2d 750 (1967). Rather, before we apply the rule, we must have some evidence the legislature intended its application. Id. We see no such evidence here, even considering the sequence of legislative enactments on which the plaintiffs rely.

¶ 14. The predecessor to Wis. Stat. § 66.185, WlS. Stat. § 66.18(2) (1951), gave cities and villages the authority to provide health insurance to employees and officers. In 1955 it was renumbered and amended to cover "municipalities as defined in s. 85.095," rather than simply "cities and villages," and the language "and such authority is hereby granted" was added. In 1959 "and their spouses and dependent children" was added to the "employees and officers." WISCONSIN Stat. § 118.001 was created by 1995 Wis. Act 27, § 3931, and that same act amended WlS. Stat. § 120.13 to add the language "all things reasonable to promote the cause of education, including establishing, providing and improving school district programs, functions and activities for the benefit of pupils." We do not agree with the plaintiffs that the 1959 amendment to § 66.185 shows an intent to limit the broad authority the legislature gave to districts in 1995. Rather, the later enactment demonstrates the legislature's decision to give school districts broad powers and wide discretion in exercising those broad powers.

¶ 15. We also do not agree with the plaintiffs that WlS. Stat. § 66.185 limits the statutes giving broad powers to school districts because it is the more specific statute. The rule of statutory construction that a more specific statute controls when there is a conflict with a more general statute applies only when there is truly a conflict. Jones v. State, 226 Wis. 2d 565, 575-76, 594 N.W.2d 738 (1999), cert. denied. Conflicts between statutes are not favored, and courts are to harmonize statutes to avoid conflicts when a reasonable construction of the statutes permits that. Id. at 576. We conclude there is no conflict between § 66.185 on the one hand, and WlS. Stat. §§ 118.001,120.13 and 120.44 on the other hand. The former grants authority to all municipalities, including school districts, to provide health insurance benefits to specified classes of persons, but does not prohibit municipalities from providing those benefits to other classes of persons. The latter statutes grant authority to school districts and school boards that is broad enough to include the authority to provide those benefits to other classes of persons. The fact that there is some overlap does not mean there is a conflict.

¶ 16. We conclude the powers granted to the District under WlS. Stat. ch. 120, broadly construed as mandated by WlS. STAT. § 118.001, include the power to provide health insurance benefits to designated family partners, and there is no statutory prohibition against providing these benefits to these persons. We need not decide whether these benefits are "wages" within the meaning of MERA and thus a mandatory subject of bargaining because, even if they are not "wages," there is no prohibition against the District entering into a collective bargaining agreement to provide these benefits.

¶ 17. In addition to their arguments on statutory construction, the plaintiffs contend the provision of health insurance benefits to designated family partners is against Wisconsin public policy. We agree with the trial court that it is not the role of the trial court, just as it is not the role of this court, to weigh the social and political policy implications of the manner in which the District has chosen to exercise the powers granted it by the legislature. We therefore do not discuss the policy arguments.

By the Court. — Order affirmed.

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

       The parties stipulated to the relevant facts.

       The criteria for a DFP (designated family partner) are:
      Criteria: Health Benefits to Designated Family Partners:
      • Participants must be in a committed relationship (relationship of mutual support, caring and commitment and intend to remain in such a relationship in the immediate future)
      • Registration of designated family partner with employer
      • Each registrant must be 18 years of age or older
      • Registrants must not be married or legally separated in marriage, and must not have been a party to an action or proceeding for divorce or annulment within six months of registration, or if one has been married, at least six months have lapsed, since the date of the judgment terminating the marriage
      • Competent to contract
      • Neither partner is currently registered in another designated partnership, and if either party had been in such a registered relationship, at least six (6) months have lapsed since the effective date of termination of that registered relationship
      • A participant may be registered in only one such partnership at a time
      • There may be no blood ties closer than that permitted for marriage, for one to qualify for designated family partners registration
      • Designated family partners must live together to qualify for this benefit (i.e., occupy the same dwelling unit as a single non-profit housekeeping unit and have a relationship which is of permanent and domestic character)

        • Relationship must not be merely temporary, social, political, commercial or economonic (sic) in nature, i.e., there must be mutual financial interdependency
      Collective Bargaining Agreement, Addendum E — 1 at 135.

       Carol Carstensen, in her official capacity as president of the Board of Education for the Madison Metropolitan School District, was named as a defendant in addition to the District.

       There is no dispute that the District is a municipality as defined in WlS. STAT. § 345.05.

       The plaintiffs argue that because WlS. Stat. § 66.185 also authorizes a municipality "by ordinance or resolution [to] elect to offer to all of its employes a health care coverage plan through a program offered by the group insurance board under Ch. 40," we should look to the definition of "dependants" in WlS. Stat. § 40.02(20) as an indication that the legislature intended to prohibit school districts from offering health care benefits to any other classes of persons. Section 40.02 provides:
      (2) "Additional contribution" means any contribution made by or on behalf of a participant to the retirement system other than employe and employer required contributions.
      (2m) "Alternate payee" means a former spouse of a participant who is named in a qualified domestic relations order as having a right to receive a portion of the benefits of the participant.
      However, the health insurance plans at issue in this case are not WlS. Stat. ch. 40 plans, and we agree with the District and MTI that there is no indication that the legislature intended that the definition of dependants in § 40.02(20) or in the rules promulgated by the Department of Employee Trust Funds pursuant to that section are applicable to the plans at issue in this case.

       There is no dispute that the Madison Metropolitan School District is a unified school district.

       The plaintiffs may have meant that we should apply the "expressio unius est exclusio alterius" rule, in construing the language of WlS. STAT. § 66.185, when considering it in isolation. However, in that context, this rule adds nothing to our duty to apply the language of the statute as written when it is not ambiguous: as we have stated above, § 66.185 grants express authority to the District to provide health insurance benefits only to the classes of persons there specified.

       Laws of 1951, ch. 374.

       Laws of 1955, ch. 313.

       Laws of 1959, ch. 179.

       1995 Wis. Act. 27, § 4024.


author: NETTESHEIM, J.

text:
    Alan W. Herzberg, Jr. and Patricia A. Herzberg, Plaintiffs-Respondents, v. Ford Motor Company, Defendant-Appellant Uptown Motors, Inc., Defendant.
    Court of Appeals

      No. 00-1284.

      Submitted on briefs January 12, 2001.

    Decided February 14, 2001.

    2001 WI App 65
    (Also reported in 626 N.W.2d 67.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick L. Wells of Cri-vello, Carlson, Mentkowski & Steeves, S.C. of Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of William S. Pocan and Vincent P. Megna of Jastroch & LaBarge, S.C. of Waukesha.
    Before Nettesheim, Anderson and Snyder, JJ.
   NETTESHEIM, J.

¶ 1. This is a Lemon Law case. The parties agree that the vehicle is a "lemon." The dispute is whether Ford Motor Company could require the purchasers, Alan W. and Patricia A. Herz-berg, to provide information about the condition of the vehicle before refunding the purchase price. The trial court ruled that the Lemon Law did not permit Ford to make such a conditional refund. At a motion for reconsideration hearing, the court confirmed its prior ruling. Ford appeals. Only the reconsideration proceeding is before this court.

FACTS

¶ 2. The material facts are documented in the parties' written correspondence and are not in dispute. During January 1998, the Herzbergs purchased a 1998 Mercury Mystique manufactured by Ford. The vehicle proved to be a "lemon" pursuant to the Lemon Law, WlS. Stat. § 218.0171 (1999-2000). Accordingly, on August 17,1998, the Herzbergs offered to return the vehicle and transfer the title to Ford in exchange for a full refund of the purchase price. On September 11, 1998, Ford agreed to the refund subject to certain conditions. Germane to this case, Ford required that the Herzbergs take responsibility for "[a]ny missing equipment, abnormal wear or collision damage (including broken glass) evident to the vehicle (the vehicle must be returned in good condition)." On September 14, the Herzbergs responded that they would sign only those documents necessary to transfer title to the vehicle. On September 16, Ford advised the Herzbergs that their refund check could be picked up at the dealership the following day. This correspondence included a packet of forms including a power of attorney, sales/usage tax waiver and assignment, a bill of lading that included information concerning the condition of the vehicle, and a reacquired vehicle inspection/condition report which also required documentation about the condition of the vehicle.

¶ 3. The next day, September 17, saw a flurry of facsimile exchanges. The Herzbergs responded that they would sign the power of attorney and the sales/usage tax waiver and assignment forms subject to certain changes in the language. However, they stated that they would not sign the bill of lading or the reacquired vehicle inspection report because such documents were not recognized or required under the Lemon Law. Ford then proposed that instead of signing the bill of lading it had forwarded, the Herzbergs should prepare and sign an equivalent form. However, Ford required that the form state that "the above mentioned vehicle is being returned to the manufacturer with no missing equipment, no abnormal wear or collision damage (including broken glass) evident to the vehicle. The vehicle is being returned in good condition." The Herzbergs declined this proposal, again observing that the Lemon Law did not require them to sign any documents relating to the condition of the vehicle. The parties' negotiations ended at this point, and this lawsuit by the Herzbergs followed.

TRIAL COURT PROCEEDINGS

¶ 4. The Herzbergs' complaint alleged a variety of claims, including breach of contract and violations of the Lemon Law and the Uniform Commercial Code (UCC). Ford moved for summary judgment contending that all of the claims were barred because it had offered the Herzbergs a full refund of the purchase price as required by the Lemon Law. The Herzbergs opposed the motion, arguing that the conditions which Ford attached to the refund offer were not recognized by the Lemon Law. The trial court agreed with the Herzbergs and denied Ford's motion for summary judgment. Thereafter, the parties continued with discovery.

¶ 5. With the trial court having resolved the legal question regarding the Herzbergs' Lemon Law claim, the parties eventually agreed that there were no factual issues in dispute regarding that claim. The trial court therefore entered judgment in favor of the Herzbergs on the Lemon Law claim in the amount of $34,416.28, twice the amount of the purchase price pursuant to WlS. Stat. § 218.0171(7). The court also dismissed the Herzbergs' remaining claims. The court scheduled a further hearing regarding the litigation expenses, including attorneys' fees, to be awarded to the Herzbergs. See id.

¶ 6. Ford then moved for reconsideration of the trial court's summary judgment ruling on the Herzbergs' Lemon Law claim. In support, Ford cited to some of the evidence obtained in discovery subsequent to the court's summary judgment ruling. In addition, Ford cited to certain provisions of the UCC and the common law of contracts. The trial court denied the motion.

¶ 7. Following a hearing on the Herzbergs' litigation expenses, including attorneys' fees, the trial court entered an amended judgment for the Herzbergs in the total amount of $109,192.15. Ford appealed from the trial court's various orders and judgments. However, we previously ruled that this appeal covers only the reconsideration order and the provisions of the amended judgment which do not replicate the award in the original judgment.

DISCUSSION

Appealability of the Reconsideration Order

¶ 8. On appeal, Ford argues that certain provisions of the UCC and the common law of contracts allowed it to require the Herzbergs to provide information relating to the condition of the vehicle as a condition of the purchase price refund. In essence, Ford argues that the Lemon Law should be read in conjunction with these other areas of the law.

¶ 9. The Herzbergs respond by first raising a jurisdictional issue. They contend that the trial court's reconsideration order is not appealable because Ford's reconsideration motion raised the same issues which were addressed in the original summary judgment proceedings. "[A]n order entered on a motion to modify or vacate a judgment or order is not appealable where ... the only issues raised by the motion were disposed of by the original judgment or order." Ver Hagen v. Gibbons, 55 Wis. 2d 21, 25, 197 N.W.2d 752 (1972).

¶ 10. Ford's answer did allege affirmative defenses under the UCC provisions of WlS. Stat. §§ 402.608(2) and 402.607(3)(a) governing "revocation of acceptance" and "acceptance of tender," respectively. Ford further alleged that its tender of the purchase price precluded any claim for damages under a breach of contract theory. However, Ford's summary judgment arguments did not rely on these allegations. Instead, Ford focused squarely on its argument that the Lemon Law allowed it to require the Herzbergs to provide information regarding the condition of the vehicle as a condition of the refund. Not surprisingly then, the trial court's summary judgment ruling similarly focused on the Lemon Law and did not address the UCC or the common law of contracts.

¶ 11. In its reconsideration motion, Ford shifted gears, relying on the UCC and the common law of contracts. In addition, Ford cited to certain evidence obtained in discovery conducted subsequent to the trial court's summary judgment ruling. Given the different focus of the reconsideration motion both from a legal and factual standpoint, we conclude that the trial court's summary judgment ruling did not encompass the additional issues raised by Ford's reconsideration motion. We reject the Herzbergs' argument that we are without jurisdiction to address the merits of Ford's appeal.

The Lemon Law, The UCC and The Common Law of Contracts

¶ 12. As noted, Ford argues that the Lemon Law should be harmonized with certain provisions of the UCC and the common law of contracts.

¶ 13. We first address the UCC issue. Ford cites to the following provisions of the UCC: Wis. Stat. § 402.515 ("Preserving evidence of goods in dispute"), § 402.607(3) (governing acceptance of a tender), § 402.608 ("Revocation of acceptance in whole or in part"), and § 402.602 ("Manner and effect of rightful rejection").

¶ 14. Our supreme court has recently set out the history and public policy which underpin the Lemon Law.

The lemon law was enacted to provide consumers with remedies beyond the "inadequate, uncertain and expensive reriiedies of the [UCC] or the Magnuson-Moss Warranty Act." It is a warranty enforcement statute, "a self-enforcing consumer law that provides important rights to motor vehicle owners.... The intent behind the law was to improve auto manufacturers' quality control ... [and] reduce the inconvenience, the expense, the frustration, the fear and [the] emotional trauma that lemon owners endure." The law also was designed to provide an incentive to a manufacturer to restore a purchaser of a "lemon" to the position he [or she] was in at the time of the purchase.

Dieter v. Chrysler Corp., 2000 WI 45, ¶ 23, 234 Wis. 2d 670, 610 N.W.2d 832 (citation omitted). See also Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 979-81, 542 N.W.2d 148 (1996). The Lemon Law was intended to do more than simply parrot the remedies previously available to the consumer. Id. at 983.

¶ 15. This language signals that the Lemon Law is a "stand alone" statute which is not dependent upon, or qualified by, the UCC. Both Dieter and Hughes expressly recognized the inadequacies of the UCC as an enforcement tool in this area. In light of that history, we should not build back into the Lemon Law the shortcomings and roadblocks of the UCC.

¶ 16. Therefore, in assessing whether Ford was entitled to require the Herzbergs to provide information regarding the condition of the vehicle as a condition to receiving the purchase price refund, we limit our examination to the Lemon Law. And we are assisted in this effort by this court's recent decision in Chariton v. Saturn Corp., 2000 WI App 148, 238 Wis. 2d 27, 615 N.W.2d 209. There the manufacturer required that the customer sign a release as a condition to receiving the refund. Id. at ¶ 1. The manufacturer said that this was permitted because the Lemon Law was silent on the matter. Id. at ¶ 3. We disagreed. We held that the Lemon Law does not contemplate that the consumer be required to sign a general release in order to obtain a refund. Id. at ¶ 5.

¶ 17. We read Chariton to mean that the obligations of the consumer who has purchased a "lemon" are limited to those set out in the Lemon Law. As relevant to this case, those obligations were to offer to return the title of the vehicle to the manufacturer and, once the refund was made, to return the vehicle and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer. WlS. Stat. § 218.0171(2)(c). The Herzbergs complied, or stood ready to comply, with all of these provisions. But the Lemon Law did not require the Herzbergs to comply with Ford's further condition that they provide information regarding the condition of the vehicle. We reject Ford's invocation of UCC law.

¶ 18. Ford also argues that the "good faith" principles recited in the common law of contracts should he read into the Lemon Law. "Every contract implies good faith and fair dealing between the parties to it." Bozzacchi v. O'Malley, 211 Wis. 2d 622, 626, 566 N.W.2d 494 (Ct. App. 1997) (citation omitted). While we agree that good faith is implicit in the Lemon Law, we disagree with Ford that this obligation is rooted in the parties' contract. Rather, the obligation is rooted in the Lemon Law itself. It should go without saying that the legislature contemplated that all the parties covered by the Lemon Law should act in good faith. Any other interpretation of the statute would be absurd and contrary to public policy.

¶ 19. But our holding that a consumer must act in good faith under the Lemon Law does not undo the trial court's ruling in this case. We have determined what the Herzbergs' obligations were under the Lemon Law, and the undisputed facts demonstrate that the Herzbergs complied with these obligations. Having ruled that the Lemon Law did not permit Ford to make a conditional refund offer, we cannot logically rule that the Herzbergs engaged in bad faith by rejecting the offer.

CONCLUSION

¶ 20. In summary, the UCC was irrelevant to this case. And since the Herzbergs acted in compliance with the Lemon Law, Ford has no basis for arguing that they acted in bad faith. We affirm the order rejecting Ford's reconsideration motion. Therefore, we also affirm the amended judgment.

By the Court. — Judgment and order affirmed.

       When referring to written correspondence, we include the parties' facsimile transmissions.

       The Herzbergs purchased the vehicle from Uptown Motors, Inc., who they named as an additional defendant. However, Uptown was eventually dismissed from the case and it does not participate in this appeal.

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

       All of the correspondence and exchanges which we recite were conducted through the parties' attorneys.

       In addition, the Herzbergs stated that they would sign an odometer disclosure statement.

       The judgment included interest on the doubled purchase price of the vehicle previously awarded, double costs and interest based on an offer of settlement pursuant to WlS. STAT. § 807.01(3) and (4) which the Herzbergs had made following the trial court's initial award, and $54,231.75 in attorneys' fees pursuant to WlS. STAT. § 218.0171(7).

       Ford's brief did allude to the UCC but only in reference to the claim the Herzbergs had asserted under the UCC.

         Chariton v. Saturn Corp., 2000 WI App 148, 238 Wis. 2d 27, 615 N.W.2d 209, was decided after the trial court proceedings in this case. Nonetheless, the trial court's ruling was in keeping with the reasoning of Chariton.

       Indeed, we discern no argument from Ford to the contrary.

       Ford argues that the UCC provisions were relevant to this case because the Herzbergs also pled claims under the UCC. We disagree. We are concerned here with the Lemon Law, not the other claims which were dismissed.