author: SNYDER, J.

text:
    In the Interest of Andrea P.B., a person Under the Age of 18: Sheboygan County Department of Health and Human Services, Petitioner-Respondent, v. Jodell G., Respondent-Appellant. [Case No. 00-1618] In the Interest of April A.B., a person Under the Age of 18: Sheboygan County Department of Health and Human Services, Petitioner-Respondent, v. Jodell G., respondent-Appellant. [Case No. 00-1619] In the Interest of Ashley J.B., a person Under the Age of 18: Sheboygan County Department of Health and Human Services, Petitioner-Respondent, v. Jodell G., Respondent-Appellant. [Case No. 00-1620]
    Court of Appeals

      Nos. 00-1618, 00-1619, 00-1620.

      Submitted on briefs November 9, 2000.

    Decided December 13, 2000.

      2001 WI App 18
    (Also reported in 625 N.W.2d 307.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Dwight D. Darrow of Darrow, Dietrich & Hawley, S.C. of Sheboygan.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James P. Van Akkeren, assistant district attorney, and Robert J. Wells, district attorney.
    On behalf of Andrea P.B., April A.B. and Ashley J.B., the cause was submitted on the brief of guardian ad litem Douglas Leppanen of Holden & Hahn, S.C. of Sheboygan.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   SNYDER, J.

¶ 1. Jodell G. seeks leave to appeal from an order of the circuit court denying her motion to dismiss the CHIPS petitions involving her three children as untimely pursuant to WlS. STAT. § 48.24(5) (1997-98). Jodell argues that because the Sheboygan County Department of Health and Human Services intake worker did not request that the CHIPS petitions be filed within forty days of receipt of the referral information, the CHIPS petitions must be dismissed with prejudice pursuant to § 48.24(5). We agree and reverse the order of the circuit court.

FACTS

¶ 2. This appeal concerns three CHIPS petitions involving Andrea P.B., April A.B. and Ashley J.B., children of Jodell. On June 29, 1999, the Sheboygan County Department of Health and Human Services, Division of Social Services (Department) received a phone call report of the possible child abuse of April by Eric G., her stepfather and Jodell's husband. An intake worksheet was completed immediately upon receipt of this information and intake worker Mary Fournier was assigned to the case. Based upon the allegations in this report, Fournier interviewed April that same day, June 29, 1999. April stated that on one occasion, Eric "yelled at us for a couple of hours and threw stuff around" and "screwed all the windows in the house shut." April also stated that Eric had "hit and pushed" her around, thrown her on a bed, and gave her a "back rub and ended up touching [her] privates" which she described as the area between her legs. She indicated that she had no clothes on when this incident occurred. In addition, April stated that another time, Eric had touched her breasts while putting lotion on her sunburned back. She described Eric as "mean" and indicated that she was afraid that he would "beat" her. After interviewing April, Fournier and City of Sheboy-gan Police Officer Dave Obremski then interviewed Ashley, Andrea, Jodell and Eric on June 30, 1999. All admitted that Eric had a drinking problem and a temper, but denied any physical or sexual assaults.

¶ 3. On July 6, 1999, Fournier's colleague, Liane Pizl, attempted to interview Andrea and Ashley. On July 21, 1999, Fournier spoke with Jodell and on July 27, 1999, she spoke with Eric. Criminal charges were filed against Eric on July 22, 1999. On August 9, 1999, Fournier received a message from Jodell, indicating that upon the advice of her lawyer, Jodell would have no further contact with the Department. Fournier then referred the matters to the district attorney's office, requesting CHIPS petitions on August 10, 1999, for Andrea and Ashley and on August 11, 1999, for April. Three CHIPS petitions were filed on September 1,1999.

¶ 4. On October 1, 1999, Jodell filed a motion to dismiss the three CHIPS petitions, alleging that Fournier failed to file the requests for CHIPS petitions within forty days as required by Wis. Stat. § 48.24(5). After a briefing schedule, the circuit court denied the motion to dismiss at a hearing on April 17, 2000, holding that the request for CHIPS petitions was timely. A motion for reconsideration was heard on May 18, 2000, but was denied in a written order dated June 2,2000. A petition for leave to appeal a nonfinal judgment or order was received by this court on June 12, 2000, and leave to appeal was granted on August 8, 2000.

DISCUSSION

¶ 5. Our task is to construe WlS. STAT. § 48.24(5). Construction of a statute is a question of law which we review de novo. See J.W.T. v. State, 159 Wis. 2d 754, 760-61, 465 N.W.2d 520 (Ct. App. 1990).

¶ 6. Wisconsin Stat. § 48.24 addresses receipt of jurisdictional information in CHIPS cases and outlines the sequential procedures to be followed by a CHIPS intake worker during an intake inquiry. The statutes stand silent as to the standard of proof required for an intake worker to determine whether sufficient evidence supports the allegations. Section 48.24(1) states that information indicating that a child is in need of protection or services shall be referred to the intake worker. The intake worker must then conduct an intake inquiry to determine whether the available facts establish prima facie jurisdiction and to determine the best interests of both the child and the public. See id.

¶ 7. The intake worker must conduct the intake inquiry in accordance with local intake rules promulgated under Wis. Stat. § 48.06(1) or (2). As part of the intake inquiry, the intake worker must inform the child and the child's parents that they may request counseling. See WlS. STAT. § 48.24(lm). In addition, the intake worker conducts conferences, with notice to the child, parents, guardian and legal custodian. See § 48.24(2)(a). However, the intake worker cannot compel any child or other person to appear at any conference, participate in a multidisciplinary screen, produce any papers or visit any place. See § 48.24(2)(b).

¶ 8. Before meeting with parents and children during an intake inquiry, the intake worker is required to provide certain information to certain persons. The intake worker must provide notice to the parents and children twelve years of age or older that a referral might result in the filing of a formal petition and must explain the allegations that the petition could contain and the nature and possible consequences of the proceedings. See WlS. Stat. § 48.243(l)(a). If the intake worker determines as a result of the intake inquiry that the child should be referred to the court, the intake worker shall ask the district attorney, corporation counsel or other designated official that a petition be filed. See WlS. STAT. § 48.24(3).

¶ 9. Wisconsin Stat. § 48.24(5), the statute at issue here, states in relevant part:

The intake worker shall request that a petition be filed, enter into an informal disposition or close the case within 40 days or sooner of receipt of referral information. . . . The judge shall dismiss with prejudice any such petition which is not referred or filed within the time limits specified within this subsection.

Jodell argues that the language of § 48.24(5) clearly requires dismissal of the three CHIPS petitions because the request for the petitions was not filed in a timely manner. We agree.

¶ 10. On June 29, 1999, Fournier received a report of the possible child abuse of April by Eric; an intake worksheet was completed immediately upon receipt of this information. That same day, April informed Fournier that Eric had sexually assaulted her and that he had been both verbally and physically abusive. However, Fournier did not refer these matters to the district attorney's office until August 10, 1999, for Andrea and Ashley and August 11, 1999, for April. August 10, 1999, is forty-two days past the receipt of the initial phone call reporting the abuse and the interview with April. August 11,1999, is day forty-three.

¶ 11. The Department argues that its receipt of a report of abuse is not receipt of referral information to an intake worker pursuant to WlS. STAT. § 48.24(5). We disagree.

¶ 12. Resolution of this issue rests upon the interpretation of the phrase "receipt of referral information," which triggers the forty-day time limit in WlS. STAT. § 48.24(5). "Receipt of referral information" is not defined in the statute or anywhere else in WlS. STAT. ch. 48. Appellate courts have confronted, but have not yet decided, the question of when § 48.24(5) time limits begin to run (i.e., what constitutes receipt of referral information).

¶ 13. Our first resort is to the language of the statute itself. See Erbstoeszer v. Am. Cas. Co., 169 Wis. 2d 637, 642, 486 N.W.2d 549 (Ct. App. 1992). Courts are obliged to give statutory language its ordinary and accepted meaning. See id. In the absence of a statutory definition, all words must be construed according to their common and approved usage. See Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995). Common and approved usage of a word may be established by reference to a dictionary definition. See id.

¶ 14. "Referral" is defined as "an act of referring; the state of being referred ... an instance of referring . . . ." Random House Dictionary 1620 (2d ed. 1987). "Refer" is defined as "to direct for information or anything required ... to direct the attention or thoughts of ... to hand over or submit for information, consideration, decision, etc." Id. A referral, then, is the act of directing attention to something. The June 29, 1999 phone message calling the Department's attention to the potential abuse of April, coupled with the specific information about the verbal, physical and sexual abuse provided by April during the June 29,1999 interview, directed the Department's attention to the potential endangerment of the girls. Thus, the phone call and the interview are referral information.

¶ 15. The Department argues that the WlS. STAT. § 48.24(5) forty-day time period should commence later than the date of the phone call and interview with the intake worker. It relies on J.W.T. v. State, 159 Wis. 2d 754, 465 N.W.2d 520 (Ct. App. 1990), for this proposition. This reliance is misplaced.

¶ 16. In J.W.T., we declined to adopt a bright-line rule regarding the commencement of the forty-day time limit of WlS. Stat. § 48.24. In J.W.T., a Barron county juvenile intake officer received information from J.W.T.'s high school principal that J.W.T. had been involved in a car theft and was being held in detention in Duluth, Minnesota. See J.W.T., 159 Wis. 2d at 757. The intake worker contacted local law enforcement, who had no record of the incident. See id. While J.W.T.'s mother confirmed the arrest and detention, it took numerous phone calls to both Wisconsin and Minnesota law enforcement and over six weeks before the intake worker finally received a police report detailing the incident in question. See id. at 757-59. Thirty-nine days after receiving the police report, the intake worker referred the matter to the district attorney's office for a delinquency petition. See id. at 760. We held that the referral information was received, and thus the forty-day time limit was triggered, on the day the intake worker received the police report and therefore the recommendation was timely filed. See id. at 763.

¶ 17. Moreover, these are CHIPS petitions and J.W.T. was a delinquency case, not a CHIPS case. J.W.T. was decided in 1990 when CHIPS and delinquency procedures were contained within the same statute. On July 1, 1996, the delinquency portion of WlS. Stat. ch. 48 was removed with the creation of Wis. Stat. ch. 938 and each chapter now contains its own procedure. See 1995 Wis. Act 77, § 9400. While CHIPS Wis. Stat. § 48.24(5) still mandates that the intake worker request that a petition be filed within forty days of receipt of referral information or the petition shall be dismissed with prejudice, delinquency WlS. STAT. § 938.24(5) allows for more discretion:

The intake worker shall request that a petition be filed . . . within 40 days or sooner of receipt of referral information. . . . The judge shall grant appropriate relief as provided in s. 938.315(3) with respect to any such petition which is not referred or filed within the time limits specified within this subsection. . ..

The CHIPS provisions remain mandatory while the delinquency provisions, like those provisions addressed in J.W.T., are discretionary. Furthermore, in J.W.T. the court was not asked to interpret "receipt of referral information" but to consider what constituted information indicating that a child should be referred to the court as delinquent, a question inapplicable to the case at hand. See J.W.T., 159 Wis. 2d at 760.

¶ 18. Finally, even if J. W. T. were said to apply to this case, in J.W.T. we held that the forty-day time limit of Wis. Stat. § 48.24(5) is triggered only when the intake worker has that quantum of information available that would enable a reasonable intake officer to evaluate the appropriate disposition of the case. See J.W.T., 159 Wis. 2d at 763. By Fournier's own admission, all information regarding the abuse of the girls was provided to her at the June 29, 1999 meeting; no additional information was provided after that date. The July 6, 1999 interviews with Andrea and Ashley yielded no new evidence of abuse. Thus, the quantum of information to enable Fournier to evaluate the appropriate disposition of the case was available to her on June 29,1999.

¶ 19. The Department's own documents reveal that it understood that the June 29, 1999 contact constituted receipt of referral information. An intake worksheet is filled out by a fixed intake worker when a call is taken over the phone; the person describing the abuse first contacted the Department on June 29,1999, and the intake worksheet was completed on June 29, 1999. A client identification sheet is created when the Department receives a referral, and in this case the client identification sheet is dated June 29, 1999. The intake inquiry recommendation indicates that the allegations of abuse were received on June 29, 1999. The initial assessment was assigned on June 29, 1999. The Child Abuse and Neglect Investigation Report reveals that the case was received on June 29,1999. According to Fournier's own testimony, a referral is when the Department receives "a referral regarding child abuse or neglect and [the case is] assigned to a social worker." The social worker, Fournier, was assigned to the case on June 29, 1999. Most significantly, the Sheboygan County Health and Human Services Initial Assessment and Safety Evaluation Worksheet and Conclusion specifically states ”06/29/99 Received Referral. "We conclude that the receipt of referral information in this case occurred on June 29,1999.

¶ 20. The Department argues that the quantum of evidence standard was not met here until Jodell refused to cooperate with Fournier on August 9, 1999. Following the logic of the Department's argument, before Jodell refused to cooperate, there was insufficient evidence of the girls' status, but after she refused to cooperate, there was sufficient evidence that the children were in need of protection or services. Thus, according to the Department's reasoning, Jodell's lack of cooperation was additional evidence of the children's CHIPS status. This is erroneous.

¶ 21. The circuit court, while acknowledging the differences between delinquency petitions and CHIPS petitions, also wrongly relied on this reasoning:

For all those reasons, I think we have to look at the process of evaluating the facts of the case differently than we would in the juvenile matter, and I would expect that one of the considerations would be the cooperativeness of the family members, and that is apparently what Miss Fournier was trying to ascertain. Without any success, for whatever reason, and I think that's a legitimate effort on her part. In fact, I would have been surprised if she hadn't done it.
Therefore, I am satisfied that once she concluded that the family members did not want to resolve this issue in an informal way, cooperate with the Department, that she had no other choice at that point but to decide a CHIPs petition was necessary.
Consequently, I believe that under the rules and the statute, that that's when the 40 days started to tick, and in fact, the petition was then filed in a timely fashion.

In its reconsideration decision, the court stated:

So, I can't find that because she exercised her right not to go to the meeting that that necessarily precludes the Department from using that information in a sense against her, I guess, to the extent that it then causes the Department to believe . . . that there will not be the level of cooperation from the family needed to make sure the family takes care of the matter.

¶ 22. Jodell was not required to cooperate with Fournier, see WlS. STAT. § 48.24(2)(b), and her refusal to cooperate cannot be used as additional evidence of the children's CHIPS status. The circuit court's and the Department's interpretations are not supported by the clear language of § 48.24(5). The forty-day time period of § 48.24(5) commences upon receipt of referral information. The Department did not receive referral information when Jodell refused to cooperate; the Department received referral information on June 29, 1999, when the allegation of potential child abuse was received by the intake worker, when an intake worker was assigned to the matter, and when April informed the intake worker of her stepfather's abuse.

¶ 23. The Department's argument that its own classification of the received information as a referral does not constitute a referral pursuant to WlS. Stat. § 48.24(5) belies common sense. Intake workers possess numerous powers and duties, see WlS. STAT. § 48.067, have multiple obligations to perform during the intake process, see § 48.24, must personally inform both the child and the parents of their basic rights in a CHIPS petition, see WlS. STAT. § 48.243 and undergo extensive training prior to assuming their intake worker duties, see WlS. Stat. § 48.06. The Department is statutorily charged with providing child welfare intake and dispositional services and with the administration of those services for the purpose of protecting and preserving the health, safety and well-being of children. See WlS. STAT. §§ 48.01 and 48.06. Both the courts and the public must be able to trust that the Department understands the terms it utilizes in relation to its statutory obligations.

¶ 24. The Department further argues that WlS. STAT. § 48.981(3)(c)4 allows sixty days after receipt of a report of abuse or neglect to investigate this report and then WlS. STAT. § 48.24(5) allows the intake worker an additional forty days to refer the matter to the district attorney for a CHIPS petition. We disagree with this interpretation.

¶ 25. WISCONSIN Stat. § 48.981 is Wisconsin's mandatory child abuse reporting statute; the specific subdivision cited by the Department, § 48.981(3)(c)4, states in relevant part:

The county department or, in a county having a population of 500,000 or more, the department or a licensed child welfare agency under contract with the department shall determine, within 60 days after receipt of a report, whether abuse or neglect has occurred or is likely to occur.

However, this subdivision cannot be read in isolation from the remainder of the statute. Section 48.981(3)(a) reads in relevant part:

Referral of report. A person required to report under sub. (2) shall immediately inform, by telephone or personally, the county department ... of the facts and circumstances contributing to a suspicion of child abuse or neglect or of unborn child abuse or to a belief that abuse or neglect will occur. The sheriff or police department shall within 12 hours, exclusive of Saturdays, Sundays or legal holidays, refer to the county department... all cases reported to it. The county department. . . may require that a subsequent report be made in writing. Each county department... shall adopt a written policy specifying the kinds of reports it will routinely report to local law enforcement authorities.

Section 48.981(2), referenced in § 48.981(3)(a), identifies mandatory reporters:

A physician, coroner, medical examiner, nurse, dentist, chiropractor, optometrist, acupuncturist, other medical or mental health professional, social worker, marriage and family therapist, professional counselor, public assistance worker, including a financial and employment planner, . . . school teacher, administrator or counselor, mediatory . . . child care worker in a day care center or child caring institution, day care provider, alcohol or other drug abuse counselor, member of the treatment staff employed by or working under contract with a county department under s. 46.23, 51.42 or 51.437, physical therapist, occupational therapist, dietitian, speech-language pathologist, audiologist, emergency medical technician or police or law enforcement officer having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur shall, except as provided under sub. (2m), report as provided in sub. (3). Any other person, including an attorney!,] having reason to suspect that a child has been abused or neglected or reason to believe that a child has been threatened with abuse or neglect and that abuse or neglect of the child will occur may make such a report. Any person, including an attorney, having reason to suspect that an unborn child has been abused or reason to believe that an unborn child is at substantial risk of abuse may report as provided in sub. (3). No person making a report under this subsection may be discharged from employment for so doing.

The implication of § 48.981, read in its entirety, is that a report is a formal statement of suspected child abuse from a person mandated to convey his or her suspicions. Thus, the sixty-day deadline of § 48.981(3)(c)4, when read in conjunction with the other provisions of the statute, applies to reports filed by § 48.981(2)(a) mandatory reporters.

¶ 26. The definitions of "report" and "referral" support this interpretation. A "report" is a "formal oral or written presentation of facts," Black's law dictionary 1303 (7th ed. 1999), while a "referral" is defined as "[t]he act or an instance of sending or directing to another for information, service, consideration, or decision." Id. at 1285. The definition of "report" is more formal and official than "referral," thus implying a formal recitation of facts from a mandatory reporter.

¶ 27. The Department itself acknowledges the distinction between a "report" and a "referral." By the Department's own admission, after a WlS. STAT. § 48.981 report is received, once the Department determines that abuse or neglect has occurred, the matter is then referred to an intake worker under WlS. STAT. § 48.24(5). Consequently, the provisions of § 48.981 are triggered by a mandatory reporter, while the provisions of § 48.24(5) are triggered by any referral to the Department. There was no § 48.981 report here, only a § 48.24(5) referral to the Department. Once the Department received this referral information on June 29, 1999, the § 48.24(5) forty-day deadline began to run.

CONCLUSION

¶ 28. The Department did not request that the CHIPS petitions be filed within forty days of its receipt of referral information as required by WlS. STAT. § 48.24(5). Thus, the petitions must be dismissed with prejudice. Accordingly, we reverse the order of the circuit court.

By the Court. — Order reversed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       This is an expedited appeal under WlS. Stat. Rule 809.17.

       Wisconsin Stat. § 938.315 provides:
      Delays, continuances and extensions. (1) The following time periods shall be excluded in computing time requirements within this chapter:
      (a) Any period of delay resulting from other legal actions concerning the juvenile, including an examination under s. 938.295 or a hearing related to the juvenile's mental condition, prehearing motions, waiver motions and hearings on other matters.
      (b) Any period of delay resulting from a continuance granted at the request of or with the consent of the juvenile and counsel.
      (c) Any period of delay caused by the disqualification or substitution of a judge or by any other transfer of the case or intake inquiry to a different judge, intake worker or county.
      (d) Any period of delay resulting from a continuance granted at the request of the representative of the public under s. 938.09 if the continuance is granted because of the unavailability of evidence material to the case when he or she has exercised due diligence to obtain the evidence and there are reasonable grounds to believe that the evidence will be available at the later date, or to allow him or her additional time to prepare the case and additional time is justified because of the exceptional circumstances of the case.
      (dm) Any period of delay resulting from court congestion or scheduling.
      (e) Any period of delay resulting from the imposition of a consent decree.
      (f) Any period of delay resulting from the absence or unavailability of the juvenile.
      (fin) Any period of delay resulting from the inability of the court to provide the juvenile with notice of an extension hearing under s. 938.365 due to the juvenile having run away or otherwise having made himself or herself unavailable to receive that notice.
      (g) A reasonable period of delay when the juvenile is j oined in a hearing with another juvenile as to whom the time for a hearing has not expired under this section if there is good cause for not hearing the cases separately.
      (2) A continuance may be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the representative of the public under s. 938.09 or the parties, the interests of the victims and the interest of the public in the prompt disposition of cases.
      (3) Failure to comply with any time limit specified in this chapter does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance. If a party does not comply with a time limit specified in this chapter, the court may grant a continuance under sub. (2), dismiss the petition with or without prejudice, release the juvenile from secure or non-secure custody or from the terms of a custody order or grant any other relief that the court considers appropriate.


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    CCS North Henry, LLC, Plaintiff-Respondent, v. Marge Tully d/b/a By the Light of the Moon, Defendant-Appellant.
    Court of Appeals

      No. 00-0546.

      Submitted on briefs July 20, 2000.

    Decided December 14, 2000.

    2001 WI App 8
    (Also reported in 624 N.W.2d 847.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of David L. Mandell of Mandell, Ginsberg & Meier of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Cora L. Higginbotham of Cora L. Higginbotham Law Office of Madison.
    Before Roggensack, Deininger, JJ. and William Eich, Reserve Judge.
   ROGGENSACK, J.

¶ 1. Marge Tully appeals the judgment for damages awarded by the circuit court for her breach of a lease with CCS North Henry, LLC. She claims that because a successor tenant's monthly payments were greater than those due under her lease, as well as being for a longer period of time, the amount of the excess in monthly payments received from that tenant over those that had been due from her should have been offset against the amount of rent owed by her before the successor tenancy began. Because the circuit court refused to make such an offset, she claims error. However, because we conclude as a matter of law that CCS North Henry elected to accept surrender of the premises, it owed no offset to Tully. Therefore, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. On May 22, 1997, Tully entered into a commercial lease with 202 North Henry Street Joint Venture which was assigned to CCS North Henry, Tully's landlord at all times material to this lawsuit. Her tenancy began June 1,1997, and was to terminate May 31, 2002. Tully breached the lease by moving out on February 3, 1999, and ceasing to pay rent. Rental payments under the lease were $1,362.90 per month for 1999 and increased incrementally each year thereafter.

¶ 3. CCS North Henry re-let the premises to the State Street Army Store at $1,785 per month rent beginning May 1, 1999. The lease was to terminate April 30, 2003. As with Tully's lease, Army Store's lease had an escalation clause that increased the monthly rent each year according to a schedule set out in the lease. However, to obtain this new tenant, CCS North Henry paid $3,780 to a realtor and paid $88.41 to change the locks.

¶ 4. On June 10, 1999, CCS North Henry sued Tully in small claims court for breach of the lease. When CCS North Henry did not obtain a judgment it believed was sufficient, it requested a trial de novo in circuit court. After a trial to the court held December 29, 1999, the circuit court entered a judgment for $4,953.31 in rent lost before Army Store's tenancy began and partial expenses. The court also awarded attorney's fees of $1,322.70, for a total judgment against Tully of $6,276.02.

¶ 5. On appeal, Tully argues that because Army Store's tenancy began June 1, 1999 and garnered $474.60 more per month in rent during the first year than Tully was obligated to pay, the excess of Army Store's rental payments over those that had been due from Tully should have been offset against the amount of rent owed by Tully prior to Army Store's tenancy. She points out that at the time of trial, CCS North Henry had already collected $3,322.20 in rent above that which she had been obligated to pay for the last seven months of 1999. In support of her argument, Tully cites common law from other jurisdictions, WlS. Stat. § 704.29(2) (1997-98) and the written lease.

¶ 6. The circuit court concluded that CCS North Henry had the option of continuing to hold Tully to the full term of the lease, thereby leaving open the possibility of damages above those awarded, to which future damages Army Store's rent payments would have been an offset. Or, CCS North Henry could terminate Tully's lease when Army Store's tenancy began and sue for damages that had accrued only up to that time. On appeal, Tully argues that CCS North Henry cannot make that election, but rather it must credit all amounts received from Army Store against damages accruing under her lease, yet she implies that she should be released from obligations accruing after Army Store took over the premises. CCS North Henry contends that the circuit court correctly decided Tully's liability and that Tully's appeal is frivolous. It asks for attorney's fees and costs necessitated by the appeal.

DISCUSSION

Standard of Review.

¶ 7. The interpretation of WlS. STAT. § 704.29 is a question of law, which we review de novo. Shelton v. Dolan, 224 Wis. 2d 334, 337, 591 Ñ.W.2d 894, 895 (Ct. App. 1998). We also decide as a matter of law whether an appeal is frivolous. J.J. Andrews, Inc. v. Midland, 164 Wis. 2d 215, 225, 474 N.W.2d 756, 760 (Ct. App. 1991) (citing Vierck v. Richardson, 119 Wis. 2d 394, 399, 351 N.W.2d 169, 172 (Ct. App. 1984)).

Damages.

¶ 8. This appeal focuses on whether the circuit court correctly calculated the damages due to CCS North Henry because of Tully's breach of her lease. In Wisconsin, damages for the breach of a written lease when a successor tenant takes possession of the premises during a period of time coextensive with the original lease are impacted upon by three areas of law: (1) landlord/tenant law, (2) WlS. Stat. § 704.29, and (3) contract law. We conclude that all three areas support the judgment of the circuit court in this case.

¶ 9. To better explain the impact of the statutes and contract provisions relevant to this appeal, we begin with a general review of the common law of remedies available to landlords and how Tully's contention fits within them.

1. Landlord/Tenant Law.

¶ 10. After a tenant has breached its lease and vacated the premises, a tenant's liability for the breach is evaluated in part by determining whether the landlord has accepted the tenant's return in a manner that effects a legal surrender of the premises. 51C C.J.S. Landlord & Tenant § 122 (1968). "Surrender" entails the tenant's giving up of the lease before its expiration and the landlord's acceptance of the tenant's relinquishment of rights, either in fact or as implied at law. 49 Am. Jur. 2d Landlord & Tenant § 242 (1995).

¶ 11. Once the premises have been returned to the landlord before the expiration of the lease, a landlord may either: (1) accept the tenant's surrender and re-enter the premises to re-let them for the landlord's own account, thereby releasing the tenant from any further liability for rent, or (2) notify the tenant that it is re-entering and re-letting the premises for the tenant's benefit and therefore the monies received from the successor tenancy will be fully credited to the initial tenant's obligation under the lease. See Kersten v. H.C. Prange Co., 186 Wis. 2d 49, 53, 520 N.W.2d 99, 101 (Ct. App. 1994); First Wis. Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258, 271, 286 N.W.2d 360, 366 (1980). If the premises are re-rented for the initial tenant's account, that tenant remains responsible for the payments due on the underlying léase until its term has concluded. 49 Am. Jur. 2d Landlord & Tenant § 243.

¶ 12. Most legal treatises agree that the question of whether a re-letting shows an acceptance of surrender depends on whether the landlord has re-let the property for his own account or for the tenant's account. 49 Am. Jur. 2d Landlord & Tenant § 252. Ordinarily, executing a new lease for a term that extends beyond that term set out in the original lease indicates the landlord's intent to accept surrender. 51C C.J.S. Landlord & Tenant § 125(8).

¶ 13. In this case, we consider whether CCS North Henry took possession of the premises for the purposes of mitigating damages and thereby entered into a lease with Army Store for the account of Tully or whether it accepted surrender of the premises and rented to Army Store for its own account, because those are mutually exclusive choices. See First Wis. Trust Co., 93 Wis. 2d at 271, 286 N.W.2d at 366; WlS. Stat. § 704.29(4)(b). As the court stated in First Wisconsin Trust:

The right to elect which course he will pursue remains with the landlord until he makes his election by taking some step which clearly evidences an intent to make a choice between the two inconsistent remedies that are open to him.

First Wis. Trust, 93 Wis. 2d at 271, 286 N.W.2d at 366 (quoting Weinsklar Realty Co. v. Dooley, 200 Wis. 412, 415, 228 N.W. 515, 517 (1930). However, as the court instructs, the mere entry and taking possession of the premises does not necessarily constitute acceptance of surrender as a matter of law. That act is equivocal, as the landlord's obligation to mitigate damages by re-letting the premises could cause it to re-rent without the intent to accept the surrender of the premises, and it is the landlord who has the right to elect which remedy it will select.

¶ 14. Here, CCS North Henry has refused to apply the rents received from Army Store to Tully's obligation under her lease, even though Tully requested that it do so. Additionally, it rented to Army Store for a period of time beyond that covered by Tully's lease. Therefore, under the undisputed facts of this case, we conclude that, as a matter of law, CCS North Henry elected to accept surrender when it obtained Army Store as its tenant for the premises. In making this election, it capped Tully's damages at the date of Army Store's tenancy, and therefore it cannot look to Tully for any damages beyond June 1, 1999. Accordingly, because CCS North Henry elected to rent the premises for its own account, it has no obligation under the common law to credit Tully with any rents it received from Army Store.

¶ 15. Tully argues that Wanderer v. Plainfield Carton Corp., 351 N.E.2d 630 (Ill. App. 1976), suggests an opposite result. However, our reading of Wanderer shows that it, too, recognizes the election of remedies for a landlord. Therefore, if a landlord rents for the tenant's account, the tenant gets credited for rents received but stays liable on the lease, and if the landlord rents for its own account, then no credits for rents received are given to the tenant. Id. at 636-37.

2. Statutory Provisions.

¶ 16. Tully maintains that WlS. Stat. § 704.29(2) requires a landlord to credit the tenant with rents received from a subsequent tenant. The statute states in relevant part:

MEASURE OF RECOVERY. In any claim against a tenant for rent and damages, or for either, the amount of recovery is reduced by the net rent obtainable by reasonable efforts to re-rent the premises. Reasonable efforts mean those steps which the landlord would have taken to rent the premises if they had been vacated in due course, provided that such steps are in accordance with local rental practice for similar properties.

¶ 17. When we are asked to apply a statute whose meaning is in dispute, we direct our efforts to determining legislative intent. Truttschel v. Martin, 208 Wis. 2d 361, 365, 560 N.W.2d 315, 317 (Ct. App. 1997). We begin with the plain meaning of the language used in the statute. Id. If the statute plainly sets forth legislative intent, our inquiry ends, and we must apply the language chosen by the legislature to the facts of the case. Id. Additionally, when we are asked to construe one subsection of a statute which has multiple subsections that deal with the same topic, we do not read a subsection in isolation from the rest of the statute. See City of Milwaukee v. Milwaukee County, 27 Wis. 2d 53, 56, 133 N.W.2d 393, 395 (1965).

¶ 18. Tully's argument does not assert that WlS. STAT. § 704.29(2) is ambiguous, but instead she asks that we read § 704.29(2) in isolation. CCS North Henry contends that all the subsections of § 704.29 must be read together to understand subsec. (2). We agree with CCS North Henry.

¶ 19. Additional subsections within WlS. STAT. § 704.29 also bear on the issues presented in this appeal. For example, subsec. (4) addresses a landlord's option to re-rent the premises, but it states that doing so does not necessarily effect a surrender. Subsection (4) states in relevant part:

Acts privileged in mitigation of rent or damages. The following acts by the landlord do not defeat the landlord's right to recover rent and damages and do not constitute an acceptance of surrender of the premises:
(b) Rerenting the premises or a part thereof, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;

Furthermore, subsec. (1) makes clear that the election of remedies established under the common law continues in the statutory scheme when it states that mitigation is required "unless the landlord has expressly agreed to accept a surrender of the premises and end the tenant's liability."

¶ 20. Our review of WlS. STAT. § 704.29 in its entirety leads us to conclude that subsec. (2), when read in conjunction with subsecs. (1) and (4)(b), does not change the common law rule that gives the election of the remedy for a tenant's breach to the landlord. Subsection (2) addresses the landlord's obligation to mitigate its damages. If the landlord elects to continue to look to the breaching tenant for damages after a new lease has been entered into, then it assumes a statutory, as well as a common law, obligation to credit the tenant with all monies received under the new lease toward the tenant's obligations under the initial lease. Looked at another way, §§ 704.29(2) and (4)(b) are legislative equivalents of what occurs when a landlord rents for a tenant's account under the common law. If a landlord makes such an election, it functions as the agent of the tenant. As a result, any rental receipts resulting from the landlord's diligence in securing a second tenant accrue to the first tenant's underlying obligation to the landlord.

¶ 21. Here, CCS North Henry elected to accept surrender of the premises under the statutes, as well as the common law, when it refused to credit Tully with the rents it received from Army Store pursuant to WlS. STAT. §§ 704.29(2) and (4)(b). Because CCS North Henry accepted Tully's surrender of the premises, § 704.29 does not require CCS North Henry to credit any payments received from Army Store to Tully's obligation incurred before Army Store's tenancy began.

3. Contract.

¶ 22. Tully also claims that her written lease requires CCS North Henry to credit her account for payments from Army Store. The lease did govern certain aspects of the parties' relationship, including a provision for remedies in the event of a default. That provision states in relevant part:

In the event default is made by the Lessee . . . then the Lessor shall, without further notice, at its option, have the right to re-enter said Leased Premises, to remove the Lessee and all persons holding under it therefrom and to terminate this lease and repossess itself of the Leased Premises provided, however, that such repossession shall not constitute a waiver by Lessor of any other rights which it might have to enforce collection of rents for the balance of the term or to recover damages from Lessee for default in payment of rents.

¶ 23. However, the lease does not describe when re-letting would constitute an acceptance of surrender (a re-letting for the account of the landlord) or when re-letting would be only mitigation of damages (a re-letting for the account of the tenant). Additionally, the contract does not limit the right of the landlord to elect any remedy available under the common law. Therefore, it offers no support for Tully's claim to a credit for rental payments received from Army Store.

Frivolous Appeal.

¶ 24. CCS North Henry has moved this court to determine that, pursuant to WlS. Stat. § 809.25(3)(c)2., Tully's attorney knew or should have known that the appeal was without any reasonable basis in law or equity and could not be supported by a good-faith argument for extension, modification or reversal of existing law because Tully has cited no case law directly on point to support her theory. In response, Tully asserts that her argument does not require case law because this is a new and developing area of the law. We agree that Tully's appeal is not frivolous.

¶ 25. Wisconsin Stat. § 809.25(3)(c) states in relevant part:

In order to find an appeal or cross-appeal to be frivolous under par. (a), the court must find one or more of the following:
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.

¶ 26. CCS North Henry relies solely on the fact that no reported cases support Tully's argument. However, WlS. Stat. § 809.25(3)(c)2., which addresses an extension, modification or reversal of existing law, implies that to contravene that section there must be contrary precedent that Tully is ignoring without any reasonable basis for doing so. However, quite the contrary is true here; there is no precedent that Tully seeks to reverse.

¶ 27. Additionally, although we did not conclude that Tully's arguments on appeal were meritorious, they were well reasoned, particularly in light of the common law and WlS. STAT. § 704.29(4)(b), which would require exactly the remedy that Tully seeks if, as a matter of law, her lease was a continuing obligation, notwithstanding Army Store's tenancy. J.J. Andrews, 164 Wis. 2d at 226, 474 N.W.2d at 760.

CONCLUSION

¶ 28. Because we conclude that as a matter of law CCS North Henry elected to accept surrender of the premises, it owed no offset to Tully for rents it collected from Army Store. Therefore, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

       Even though CCS North Henry had paid a realtor $3,780 to find a new tenant, it sought payment from Tully of only $1,700.

       The sum of the two portions of the judgment is actually one cent less than the judgment entered.

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

       The circuit court made a statement which was not necessary to its decision, but which could indicate that it was not certain whether CCS North Henry had released Tully from further liability under the lease. However, the remedies available to CCS North Henry are mutually exclusive. First Wis. Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258, 271, 286 N.W.2d 360, 366 (1980). Therefore, it could not have retained its rights against Tully under her lease without crediting her with the rents received from Army Store, and this it has refused to do.

      CCS North Henry cites Kersten v. H.C. Prange Co., 186 Wis. 2d 49, 520 N.W.2d 99 (Ct. App. 1994), for the proposition that the "date of mitigation" sets the date at which damage awards are concluded. We note that Kersten approves retaining jurisdiction in the circuit court after the initial judgment to add additional damages where there has not been a surrender of a lease. It also describes the types of damages that can be computed when a lease has been breached and the trial court is trying to determine what items are compensible. Kersten is in accord with the election of remedies discussion above.


author: CANE, C.J.

text:
    Mark Grebner, d/b/a Practical Political Consulting, Plaintiff-Appellant, v. Sharon Schiebel, in her official capacity as Polk County Clerk, Defendant-Respondent.
    Court of Appeals

      No. 00-1549-FT.

      Submitted on briefs October 20, 2000.

    Decided December 17, 2000.

    2001 WI App 17
    (Also reported in 624 N.W.2d 892.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mark E. Sostarich of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Beverly Wickstrom of Misfeldt, Richie, Wickstrom & Wachs of Eau Claire.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   CANE, C.J.

¶ 1. Mark Grebner, d/b/a Practical Political Consulting, appeals from a judgment dismissing his complaint seeking a mandamus order to require the custodian of public records to permit him to make copies of voting records on his own portable photocopy machine. Because it is the custodian of public records, not the requester, who has the option of determining how these records are copied, the judgment is affirmed.

¶ 2. The relevant facts are undisputed. Grebner does business as Practical Political Consulting, which provides voter histories to candidates, political parties and others involved in the electoral process. In 1999, Grebner dispatched employees throughout Wisconsin to obtain polling data from the various county clerks' offices. These employees were provided with a portable photocopying machine and supplies so that they could make immediate photocopies of pertinent records.

¶ 3. One of these offices was the Polk County clerk's office where Sharon Schiebel served as the clerk. Curt Raisig, an employee of Grebner, went tó the Polk County clerk's office, carrying with him a small portable photocopying machine and necessary supplies for the machine. He requested and was granted access to the poll lists for all elections held during the past four years. He also indicated to the clerk that he intended to identify the necessary documents and then photocopy them using the portable photocopying machine that he had with him and available for inspection. Grebner stresses that Raisig never asked the clerk to make copies of the documents for him.

¶ 4. Schiebel informed Raisig that he would not be allowed to make copies with his photocopying machine. Instead, she offered to assign a person from her office to photocopy the documents for a charge. Raisig then left and reported what happened to Grebner. Grebner contacted Schiebel by telephone and emphasized that he was not asking the clerk to copy the records for. him. Instead, he simply wanted access to the records and intended to make his own copies with his portable photocopying machine. The clerk again refused to grant him permission to photocopy documents using his own photocopy machine.

¶ 5. In a July 10,1999, letter, Grebner confirmed his earlier request and demanded that the clerk's office allow his staff access to the poll records, including the right to make copies on the portable photocopying machine. This request was again denied through a letter from the county's corporation counsel on behalf of the County clerk.

¶ 6. In response, Grebner inquired as to whether he could use a digital camera, instead of the photocopying machine, to photograph selected pages from the poll list. He also asked if he could use a laptop computer to immediately transcribe certain information from these documents into his company's database. The clerk's office, responding through the county's corporation counsel, said that Grebner's staff could use the digital camera and the laptop to copy the requested documents as long as it would not damage the documents. Instead of using the camera or computer, Grebner filed suit demanding that he be allowed to copy these documents with his own photocopying machine.

¶ 7. Both sides agreed that the trial court could resolve the issue on summary judgment. The trial court granted judgment to the county, concluding that WlS. Stat. § 19.35(l)(b) gives the clerk the option of allowing the requester to copy the records with the requester's own equipment or providing the requester with a copy of the records. We agree.

¶ 8. To resolve this issue, we must interpret WlS. Stat. § 19.35(l)(b). Statutory interpretation is a question of law and is subject to our de novo review. See Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). The goal of statutory interpretation is to ascertain the intent of the legislature, and to discern this intent we look first to the plain language of the statute. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 25, 559 N.W.2d 563 (1997). If the statute's language is clear, we look no further and simply apply the statute to the facts and circumstances before us. See Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996).

¶ 9. In light of the undisputed facts, we initially clarify what this case is not about. It is not about whether Grebner was denied access to the public records. Nor is it about whether Grebner was denied the right to copy the records. In both instances, it is undisputed that Grebner was granted access to the poll lists and had permission to copy the records with his own digital camera or transcribe the information with his laptop computer. Therefore, the sole issue is whether the requester can select his or her own equipment to cqpy the public records without the clerk's permission. The answer is no.

¶ 10. Wisconsin Stat. § 19.35(l)(b) provides:

Access to records; fees.
(b) Except as otherwise provided by law, any requester has a right to inspect a record and to make or receive a copy of a record which appears in written form. If a requester appears personally to request a copy of a record, the authority having custody of the record may, at its option, permit the requester to photocopy the record or provide the requester with a copy substantially as readable as the original.

¶ 11. Grebner does not argue that this statute is ambiguous. Instead, he stresses that the statute does not apply in this instance because he did not request a copy of a record. He argues that under the first sentence of this subsection he has an undeniable right to make a copy of a record which appears in written form. However, his argument is an overly restrictive reading of the statute and ignores long-standing rules of statutory construction. When interpreting a statute, it must be read so every portion of the statute is given meaning. Northwest Props. v. Outagamie County, 223 Wis. 2d 483, 489, 589 N.W.2d 683 (Ct. App. 1998). The two sentences comprising subsec. (b) must be read together and harmonized. See State v. Schaller, 70 Wis. 2d 107, 110, 233 N.W.2d 416 (1975).

¶ 12. We agree with the County clerk that the only reasonable reading of the subsection is that a requester may make or receive a copy of the record subject to the terms and conditions set forth in the second sentence of the subsection. Under the second sentence, the custodian is given the option to either allow the requester to make a copy of the record or for the custodian to make a copy of the record. Importantly, the statute gives the custodian, not the requester, the option to choose how a record will be copied.

¶ 13. As the trial court correctly noted, this interpretation satisfies an important public policy concern. Schiebel, like other record custodians, has important administrative obligations. Like other custodians, the county clerks must keep the records in their possession in good condition and have them readily accessible. The custodians are obligated to preserve and protect the records under their custody while at the same time allowing the public the right to access and copy these documents. The legislature was obviously aware of these two public interests and struck a balance by giving the custodian the option to determine how the records are copied. WISCONSIN STAT. § 19.35 does not require the custodian to articulate or explain the reasons for his or her decision. Thus, the clerk has the option to not permit the requester to use his or her own equipment without entering into a debate over the adequacy of the requester's equipment or the likelihood that it will destroy the document.

¶ 14. Here, Schiebel exercised the option given to her by the legislature and was not required to allow the requester to dictate what equipment would be used to make the copies. In response to Grebner's request, she made reasonable arrangements to allow him to copy the poll lists with the digital camera, transcribe information into his laptop computer, or have copies made for him. She complied with the mandates of Wis. Stat. § 19.35 in that Grebner was allowed access to the public records and the right to obtain copies, either by using his own camera or having the clerk make copies. Because it is the custodian, not the requester, who has the option to determine how the public records are copied, the judgment is affirmed.

By the Court. — Judgment affirmed.

       This is an expedited appeal under WlS. STAT. Rule 809.17 (1997-98).

       For example, WlS. STAT. § 6.46 provides a specific obligation for municipal clerks to preserve poll lists. This statute provides:
      Poll lists; copying. Poll lists shall be preserved by the municipal clerk until destruction or other disposition is authorized under s. 7.23, and shall be open to public inspection. The municipal clerk shall furnish upon request to each candidate who has filed nomination papers for an office which represents at least part of the municipality one copy of the current poll list for those areas for which he or she is a candidate for a fee not to exceed the cost of reproduction. If a copying machine is not accessible, the clerk shall remove the lists from the office for the purposes of copying, and return them immediately thereafter.