author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jerry J. Wintlend, Defendant-Appellant.

    Court of Appeals

      No. 02-0965-CR.

      Submitted on briefs September 24, 2002.

      Decided November 6, 2002.

    2002 WI App 314
    (Also reported in 655 N.W.2d 745.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ralph A. Kalal of Kalal & Associates of Monona.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Phillip A. Koss, district attorney.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 1-14-03.

   BROWN, J.

¶ 1. Jerry J. Wintlend appeals his conviction for operating a motor vehicle while intoxicated. He contends that when he was read the Informing the Accused form by the officer following his arrest, the language of that form contained a threatened sanction of a loss of driving privileges unless he consented to taking a blood alcohol test. He maintains that this threat constituted a coercive measure invalidating his consent for Fourth Amendment purposes. See Wis. Stat. § 343.305 (1999-2000). In Village of Little Chute v. Walitalo, 2002 WI App 211, 256 Wis. 2d 1032, 650 N.W.2d 891, review denied, 2002 WI 121 (Wis. Sept. 26, 2002) (No. 01-3060), our court had the same issue before it, but Wintlend maintains that while noting the issue, the Walitalo court did not address it. To the extent that the Walitalo court did not address the argument Wintlend now makes, we speak to that argument and reject it.

¶ 2. On February 17, 2001, Wintlend was arrested for operating a motor vehicle while intoxicated. The Informing the Accused form was read to him and he consented to taking a blood alcohol test. His blood alcohol measured .183% and he was therefore also charged with a prohibited blood alcohol concentration. Prior to trial, he moved to suppress the evidence, contending, inter alia, that any implied consent to have blood taken from him was a coerced consent by operation of the penalty structure of Wis. Stat. § 343.305(2) and design of the companion provisions of that statute, and was thereby constitutionally invalid. The trial court denied the motion and Wintlend pled no contest to operating while intoxicated. The prohibited blood alcohol concentration charge was dismissed and read in. Wintlend was sentenced and he appeals, again raising the coercion issue.

¶ 3. This precise issue was before the court in Walitalo. In that case, the court observed that the presence or absence of actual coercion or improper police practices is the focus of inquiry because it is determinative on the issue of whether the consent was the product of a "free and unconstrained will, reflecting deliberateness of choice." Walitalo, 2002 WI App 211 at ¶ 9 (citation omitted). The court noted that the arresting officer did not threaten or apply any coercion, but simply read the Informing the Accused form, which stated the truth: if Walitalo refused to submit, his driving privileges could be revoked. Id. at ¶ 11. The court further noted that the statement did not involve trickery or deceit, but merely informed him of his legal situation. Id. Because there was no actual coercion, the court concluded that Walitalo's consent was voluntary. Id.

¶ 4. When Wintlend wrote his brief-in-chief, Wali-talo had not been released. By the time of his reply brief, it had been ordered published. Thus, in his reply brief, Wintlend discussed the impact of Walitalo as it related to his case. For some strange reason, he first submitted that the Walitalo court did not reach whether the implied consent statute, when read to the accused, is a form of coercion because the court held that the attorney general had not been notified. Our review of Walitalo shows that the court made no such holding.

¶ 5. Later in the reply brief, Wintlend apparently changed course and allowed that the court had, in fact, addressed the issue but claimed that the court missed it. Wintlend wrote, in pertinent part: "The predicate of this Court's opinion in Walitalo is that the statement in the 'Informing the Accused' is accurate .... Walitalo says there is no coercion in correctly stating options, assuming that the options are Constitutional." Win-tlend then went on to argue that the options are unconstitutional because they force a motorist to make a choice — either take the test or lose one's license. Wintlend appears to maintain that this state-sponsored coercion exerts a psychological toll on motorists at the time the motorists are asked to take the blood alcohol test, overbearing their will and compelling them to consent to taking a test. In Wintlend's view, the consent obtained after the police officer reads the Informing the Accused form is neither the product of an essentially free will nor an unconstrained choice.

¶ 6. First, Wintlend is wrong when he argues, as he seemingly does, that the Walitalo court missed the issue. It did not. The court reasoned that in reviewing claims of coercion, the focal point must be the "presence or absence of actual coercion." Id. at ¶ 9. The court pointed out that when an officer informs a motorist that his or her driving privileges may be revoked if that motorist refuses to take a blood alcohol test, that information is true. Id. at ¶ 11. Because the officer was merely providing truthful information and because the officer made no threats or applied any coercion, the court could not find that any coercion existed. The court held that there is no unlawful coercion where the officer merely informs the arrestee of the permissible range of sanctions that the State may ultimately be authorized to impose. See id. at ¶¶ 6, 11. We conclude that the Walitalo court saw the issue from the standpoint of the officer's actions and, as so viewed, did answer the issue before the court.

¶ 7. But, here, Wintlend argues that it is not the officer's actions that matter. Rather, he contends, it is the statute itself which should be the subject of a coercion analysis. We note that his counsel has raised this same issue, even after Walitalo, in numerous appeals across the state. If, for no other reason than to finally put an end to the constant barrage of appeals all raising this same issue, we will indulge Wintlend and answer the issue he now raises post-Walitalo.

¶ 8. Wintlend appears to be arguing that the implied consent law conditions receipt of one constitutional right (the right to travel) in return for the relinquishment of another constitutional right (the Fourth Amendment right to be free from governmental searches and seizures). He posits that a license, once granted by the State, is a constitutionally protected interest. He asserts that giving up the right of privacy to one's own body in return for keeping the right to drive is coercive because it poses a choice between two evils — allow a search of one's body by someone else or lose the right to drive without due process.

¶ 9. We have two responses to this argument. First, while there is a constitutional right to travel, there is no constitutional right to operate a motor vehicle. County of Fond du Lac v. Derksen, 2002 WI App 160, ¶ 7, 256 Wis. 2d 480, 647 N.W.2d 922, review denied, 2002 WI 121 (Wis. Sept. 3, 2002) (No. 01-2870). So, it is not true that the statute presumes to have a motorist give up one right in order to obtain another. What the motor vehicle operator's license does for motorists is extend to them a benefit — the privilege to drive on our highways. Second, the United States Supreme Court has never interpreted the Fourth Amendment as imposing an absolute prohibition of state measures calling upon individuals to abandon their rights as a prerequisite to the receipt of governmental benefits and privileges. In fact, the Court has reached just the opposite conclusion. In Zap v. United States, 328 U.S. 624, 628 (1946), a case dealing with government contracts, the Court recognized that individuals may validly waive their Fourth and Fifth Amendment rights as a condition of receiving government business contracts.

¶ 10. It therefore follows that the conditioning of benefits upon the surrender of a right does not automatically lead to a finding of unconstitutionality. In the Fourth Amendment context, only unreasonable governmental intrusions are constitutionally proscribed. See Florida v. Jimeno, 500 U.S. 248, 250 (1991). Thus, the real question is not whether access to the highways by virtue of a driver's license is conditioned upon a surrender of a right, but whether the Fourth Amendment intrusion it authorizes is independently reasonable. See Wyman v. James, 400 U.S. 309, 318 (1971).

¶ 11. In assessing the reasonableness of the coercive nature of the implied consent statute, we first acknowledge that coercion and duress need not be based on some act by the government which is physical or brutal in nature to vitiate consent. See Haynes v. Washington, 373 U.S. 503, 513 (1963). Psychological compulsion may, in appropriate cases, operate to overcome American values of freedom of choice, individual liberty and personal autonomy. See id. Thus, we must look to see whether the implied consent law employs any unreasonable psychological compulsion upon motorists in this state. The answer to this question is in two parts. First, we must consider the question of "when" the consent is obtained. Then, having answered that, we must consider whether "the circumstances" by which the consent was gained are compatible with our sense of reasonableness.

¶ 12. We begin our analysis with the truism that no one forces anyone in this state to get a driver's license. Individuals have the freedom to choose whether and when to drive on our highways. However, in return for seeking the privilege of driving on our highways, the would-be motorist must obtain a valid driver's license. As a condition of obtaining a driver's license, the would-be motorist must be willing to accept the burdens associated with this choice. One of these conditions is to obey the traffic laws of this state. Another condition is that if the person needs glasses or contacts to drive, the person must agree that he or she will wear glasses or contacts. And, pertinent to this case, our supreme court has declared that when a would-be motorist applies for and receives an operator's license, that person submits to the legislatively imposed condition that, upon being arrested for driving while under the influence, he or she consents to submit to the prescribed chemical tests. In State v. Neitzel, 95 Wis. 2d 191, 193, 289 N.W.2d 828 (1980), the court wrote:

By reason of the implied consent law, a driver, when he applies for and receives an operator's license, submits to the legislatively imposed condition on his license that, upon being arrested and issued a citation for driving under the influence of an intoxicant, contrary to sec. 346.63 (1), Stats., he consents to submit to the prescribed chemical tests. He applies for and takes his license subject to the condition that a failure to submit to the chemical tests will result in the sixty-day revocation of his license unless the refusal was reasonable.

¶ 13. Thus, our supreme court has decided that the time of consent is when a license is obtained. As such, it stands to reason that any would-be motorist applying for a motor vehicle license is not coerced, at that point in time, into making the decision to get a license conditioned on the promise that if arrested for drunk driving, the motorist agrees to take a test or lose the license. The choice is there. If the would-be motorist decides to dissent, he or she does not have to get a license to exercise the constitutional right to travel. See Derksen, 2002 WI App 160 at ¶ 7. The person can take a bus, ride a bike, or walk. Thus, there is no psychological pressure brought to bear at the time that a motorist applies for and obtains a driver's license in exchange for accepting the burdens imposed by the State.

¶ 14. Of the fifty-two cases cited by Wintlend in his brief-in-chief, he does not acknowledge the language contained in Neitzel, much less cite the case at all. Rather, he argues that the time when consent to take the test occurs and the time when the coercion rears its head is when a law enforcement officer reads the Informing the Accused form to the accused motorist. Wintlend needs us to find a different time frame for when consent is gained so that he can then argue that the real moment when psychological pressure is brought to bear is when the Informing the Accused form is read. As we already noted, the argument that consent comes at some time different from the time a person applies for and obtains the license is directly contrary to the specific language found in Neitzel. As Wintlend must know, we may not overrule the supreme court. 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).

¶ 15. For the sake of argument, let us suppose that Neitzel did not contain the language we have cited. Let us indulge Wintlend in his argument. He cites Wis. Stat. § 343.305(2), which says, in pertinent part: "Any person who . .. drives or operates a motor vehicle upon the public highways ... is deemed to have given consent." Wintlend argues that the legislature has thus decreed that consent is obtained when the person has actually driven on the highway, not at some time beforehand. He apparently further argues that the statute is addressing the motorist in "real-time," after arrest when being read the Informing the Accused form, not before. And while he has not made the argument, one could assert that the language in Neitzel weakens when it is observed that out-of-state drivers would not fit nicely into the Neitzel court's analysis.

¶ 16. We could quibble with Wintlend's statutory construction analysis. We could say that what is wrong with Wintlend's reasoning is that the legislature did not put that language in the present tense as if to say that the person "gives consent" each time he or she decides to drive. Rather, the legislature said that the person "is deemed to have given consent." Wis. Stat. § 343.305(2). That wording implies that the consent antecedes the operation of the vehicle. Our construction would be consistent with the language contained in Neitzel. Or we could read the statute to say that the statute says nothing about consent being obtained at the time the form is read; at the most, it says that any time a person drives a motor vehicle on our highways, at that time, consent is obtained. Either construction would doom Wintlend's argument.

¶ 17. But more to the point, even if the time of the coerced event is at the time when the Informing the Accused form is read to the accused motorist, the question remains whether the coercive event is reasonable. Both the United States Supreme Court and our supreme court have recognized that a blood alcohol test is safe, relatively painless and commonplace. South Dakota v. Neville, 459 U.S. 553, 563 (1983); State v. Krajewski, 2002 WI 97, ¶ 57, 255 Wis. 2d 98, 648 N.W.2d 385. Taking one of the three tests authorized by statute is not an intrusive measure when compared with other, much more intrusive state actions. For example, it is much less intrusive than forcing a person to disgorge the contents of his or her stomach as was the case in Rochin v. California, 342 U.S. 165, 166-67 (1952). We therefore conclude that the bodily intrusion the motorist is being asked to allow, in return for retaining the license to drive, is a minimal one. It is not a hard, unconscionable choice the motorist is being asked to make.

¶ 18. And what does the State get in return for this minimal intrusion? The United States Supreme Court has long recognized a state's desire to detect, eliminate and prevent certain hazardous conditions to public health as sufficiently compelling to justify the intrusion on privacy occasioned by suspicionless searches or seizures. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 668 (1989) ("Our precedents have settled that, in certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion."). If such is the case with suspicionless activity, imagine the government's right when there is not only suspicion, but probable cause. Intoxicated driving on our highways is a hazardous condition to public health. The high volume and inherent mobility of motor vehicles indicates that the threat by intoxicated drivers-is very real. Thus, there is a compelling need to get intoxicated drivers off the highways and keep them off until they have, hopefully, learned their lesson. The implied consent law is for a compelling purpose and is not overly intrusive. It is not unreasonable. Therefore, at whatever point the motorist is coerced into making a decision, be it at the time the person applies for and obtains a license, or when the person begins operating the vehicle on each particular occasion, or after arrest, the statute's coerciveness is not unreasonable.

¶ 19. In closing, we observe that long after the motorist obtains his or her license, the motorist still has choices. There is a choice about whether to drink and drive, for example. The motorist may decide to get behind the wheel and drive or may decide not to do so. But common sense and human experience tell us that a motorist knows that immoderate consumption and driving a motor vehicle is not met with favor. Knowing this information, the motorist nonetheless maintains the freedom to decide whether to drive. If the motorist makes the choice to drive, but is stopped and arrested, the motorist's plethora of choices is whittled down to one self-induced Hobson's choice — take the test or lose the license to drive. It is the motorist who has voluntarily asserted his or her autonomy, which freedom of choice has put the motorist, as Justice Sutherland put it, "between the rock and the whirlpool." See Frost v. R.R. Comm'n, 271 U.S. 583, 593 (1926). As one commentator noted, "[i]t would be paradoxical indeed for individuals to claim that they were coerced into making a decision (thus escaping the consequences thereof) that is compelled by a predicament in which they willingly placed themselves ab initio." Eustace T. Francis, Combatting the Drunk Driver Menace: Conditioning the Use of Public Highways on Consent to Sobriety Checkpoint Seizures — The Constitutionality of a Model Consent Seizure Statute, 59 Alb. L. Rev. 599, 656 (1995). Thus, even if the coercive event takes place at the time the Informing the Accused form is read to the accused motorist, it is an entirely reasonable form of coercion. We therefore reject Wintlend's argument.

By the Court. — Judgment affirmed.

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


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant-Cross-Respondent, v. Jeffrey R. Groth, Defendant-Respondent-Cross-Appellant.

    Court of Appeals

      No. 01-3000-CR.

      Submitted on briefs August 26, 2002.

      Decided November 12, 2002.

    2002 WI App 299
    (Also reported in 655 N.W.2d 163.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and Sally L. Well-man, assistant attorney general.
    On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the combined brief of Peter M. Koneazny, assistant state public defender.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.

       Petition to review denied 3-13-03.

   SCHUDSON, J.

¶ 1. The State of Wisconsin appeals from a judgment and an order, after a jury found Groth guilty of second-degree reckless homicide, party to a crime, while armed with a dangerous weapon; aiding a felon; and carrying a concealed weapon. The State argues that the trial court erred in granting Groth's postconviction motion for a new trial on the homicide charge. The State contends that the court erred in concluding that it had erred at trial in giving Wis JI — Criminal 406. The State is correct and, therefore, we reverse the postconviction order for a new trial and reinstate the judgment of conviction on the homicide charge.

¶ 2. Groth cross-appeals from the judgment of conviction and the postconviction order granting his request for a new trial but denying his request for resentencing. Groth does not challenge his convictions for aiding a felon or carrying a concealed weapon. He argues, however, that: 1) he is entitled to resentencing because, he says, he was sentenced based on inaccurate information; and 2) the court erroneously exercised sentencing discretion and denied him equal protection when it imposed significantly different sentences on him and a co-defendant. He also argues that, with respect to the homicide conviction, he is entitled to a new trial in the interests of justice as a result of what he deems confusing jury instructions, an erroneous jury instruction, and the State's misleading closing argument.

¶ 3. We reject Groth's challenges to the jury instructions and the State's closing argument. We do agree, however, that Groth is entitled to resentencing because he was sentenced based, in part, on what the State concedes was information without factual basis in the record as it comes to us. Therefore, without any need to address his additional sentencing challenge, see Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issue need be addressed), we remand for resentencing.

I. STATE'S APPEAL

A. Background

¶ 4. In its postconviction decision, the trial court summarized the facts that, as relevant to the issues in this appeal, are essentially undisputed:

Groth's convictions (along with [those of] three other co-defendants who pled guilty) stem from the early A.M. February 25, 2000 shooting death of Joseph George outside the Roadhouse Tavern in the City of Oak Creek, Milwaukee County. Groth arrive[d] at the bar on the evening of February 24th with Kevin Dane, Rodolph Lanaghan (the actual shooter) and two other co-defendants, Bradley Debraska and Kevin Zi-olkowski.
Groth planned to confront men whom he believed had attacked him outside the bar the previous week, and the group brought weapons to the scene, including a bat, a broken pool cue, brass knuckles and an inoperable .22 caliber handgun. [Groth] also requested that a friend of his, Fausto "Huffy" Delgado, bring his .38 caliber handgun to the bar. Groth secured that gun and later handed it to Lanaghan. It was that .38 which killed Joseph George.
In the interim various meetings were held in the men's bathroom between the antagonists on each side, and many thought those meetings had resolved the differences. However, Debraska testified that Groth still wanted revenge for the beating he had sustained the prior week. Testimony revealed that Lanaghan related to Groth that the latter did not ["]have the balls to use it (the gun)["] and requested the gun from Groth. After giving the gun to Lanaghan, Groth left the bar and pulled his car nearer the entrance "in case something happened." He kept the engine running.
Debraska then provided Lanaghan with a jacket with a hood to assist the shooter in concealing his identity. Lanaghan then started firing at the bar's entrance at people exiting. Danny Oswald, one of the principal antagonists of Groth, was right next to Joseph George, and this victim, an innocent bystander, unfortunately received the fatal shot presumably intended for Oswald.
Groth then drove the group to Ziolkowski's home, where they attempted to clean and hide the gun. However, they were all picked up shortly thereafter by the police.

¶ 5. At the jury-instructions conference, the prosecutor requested Wis JI — Criminal 406, modified to reflect the appropriate crimes. So modified, and as ultimately presented to the jury, the instruction states, in part:

Section 939.05 of the Criminal Code of Wisconsin provides that whoever is concerned in the commission of a crime may be charged with and convicted of the commission of the crime although he did not directly commit it.
The defendant is charged with being concerned in the commission of second degree reckless homicide while armed with a dangerous weapon by aiding and abetting the person who directly committed it.
A person who intentionally aids and abets the commission of one crime is also guilty of any other crime which is committed as a natural and probable consequence of the intended crime.
Before you may find the defendant guilty, you must be satisfied beyond a reasonable doubt that the defendant intentionally aided and abetted the commission of the crime of second degree recklessly endangering safety while armed with a dangerous weapon, that second degree homicide while armed with a dangerous weapon was committed and that under the circumstances second degree reckless homicide while armed with a dangerous weapon was a natural and probable consequence of second degree recklessly endangering safety with a dangerous weapon.
Finally, consider whether under the circumstances second degree reckless homicide while armed was a natural and probable consequence of second degree recklessly endangering safety while armed.
A crime is a natural and probable consequence of another crime if in light of ordinary experiences it was a result to be expected, not an extraordinary or surprising result.
The probability that one crime would result from another should be judged by the facts and circumstances known to the defendant at the time the events occurred.
If the defendant knew or if a reasonable person in the defendant's position would have known that the crime of second degree reckless homicide while armed was likely to result from the commission of second degree recklessly endangering safety while armed, then you may find that second degree reckless homicide while armed was a natural and probable consequence of second degree recklessly endangering safety while armed.

¶ 6. Groth objected to the instruction. He did so, however, arguing only that the standard instructions on second-degree reckless homicide while armed, party to the crime, without any additional instruction involving second-degree recklessly endangering safety, would be easier for the jury to understand and apply. He did not argue that the evidence was insufficient to support the State's proposed instruction. He did not argue that second-degree reckless homicide was not a natural and probable consequence of second-degree reckless endangering safety under the circumstances of this case. And he did not argue that any specific language in the State's proposed instruction was inaccurate or confusing. The court granted the State's request.

¶ 7. In his postconviction motion, however, Groth contended that the instructions he had proposed more clearly distinguished his intentional aiding and abetting from Lanaghan's recklessness. Granting Groth's motion, the trial court concluded:

[Second-degree reckless homicide while armed, party to the crime] is not the natural and probable consequence of second-degree recklessly endangering safety, since there is no evidence as to what [Groth] actually intended. [Groth's] theory was that the weapons brought to the tavern were for self-defense in the event a confrontation occurred. He was not sure what would happen after he provided Lanaghan with the .38 caliber gun.

B. Discussion

¶ 8. A trial court has broad discretion in instructing a jury but must exercise that discretion in order to fully and fairly inform the jury of the applicable rules of law. State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). Whether a crime charged was a natural and probable consequence of the crime with which a defendant allegedly assisted is a factual issue for the jury. State v. Ivy, 119 Wis. 2d 591, 601, 350 N.W.2d 622 (1984). Whether a jury instruction is appropriate, under the given facts of a case, is a legal issue subject to independent review. See State v. Pettit, 171 Wis. 2d 627, 638, 492 N.W.2d 633 (Ct. App. 1992).

¶ 9. Whether a jury instruction violated a defendant's right to due process is a question of law subject to our de novo review. Id. at 639. In reviewing a claimed jury instruction error, we do not view the challenged words or phrases in isolation. Id. at 637. Rather, jury instructions "must be viewed in the context of the overall charge." Id. Relief is not warranted, however, unless the court is "persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury" in the manner asserted by the challenger to the instruction. Id. at 638.

¶ 10. Wisconsin JI — Criminal 406 defines aiding- and-abetting liability in circumstances under which a person who intentionally aides and abets the commission of one crime is also guilty of any other crime (committed in the course of the intended crime) that is a natural and probable consequence of the intended crime. Here, the prosecutor requested the instruction to link Groth's committed crime (second-degree reckless homicide while armed) to his intended crime (second-degree recklessly endangering safety).

¶ 11. The State's request was perfectly reasonable; the instruction reflected the facts of the case. The trial court's trial decision was correct; its postconviction determination was not.

¶ 12. As the State correctly argues, the evidence of what Groth actually intended — second-degree recklessly endangering safety while armed — was virtually undisputed. Groth and his accomplices, intending to retaliate against someone who had attacked him, came armed to a tavern to confront Groth's assailant. Groth, as the trial court summarized, "secured" the murder weapon and "handed it" to Lanaghan, who shot and killed Joseph George. Groth was waiting nearby as the getaway driver. As the State explains, "Death was particularly foreseeable under the circumstances.. . because the intended crime was not just recklessly endangering safety, but recklessly endangering safety while armed with a dangerous weapon, and the resulting charged crime was second-degree reckless homicide while armed with a dangerous weapon; the dangerous weapon involved was a gun."

¶ 13. The facts of this case, therefore, were perfectly suited to the standards of Wis JI — CRIMINAL 406. Both the intended crime and the charged crime carried the same element of reckless conduct — conduct that creates an unreasonable risk of death or great bodily harm, and the actor's awareness of such risk. See Wis JI — Criminal 1060; see also State v. Asfoor, 75 Wis. 2d 411, 427-34, 249 N.W.2d 529 (1977). Indeed, on appeal, Groth accentuates this very point and, primarily, merely argues that the 406 instruction was "confusing . .. because it was difficult to apply and served no useful purpose."

¶ 14. The postconviction court concluded that Wis JI — Criminal 406 was improper "since there [was] no evidence as to what the defendant actually intended." We disagree. Indeed, the evidence was overwhelming that Groth intended armed retaliation; he intentionally assisted Lanaghan in obtaining the gun Lanaghan fired into a group of people, .killing an innocent victim. Unquestionably, Groth's conduct was reckless; it endangered many people and, as a natural and probable consequence, it was a substantial factor causing Joseph George's death.

¶ 15. Therefore, we conclude that the trial court correctly granted the State's request to utilize Wis JI — Criminal 406 but, in its postconviction decision, incorrectly found fault with its ruling. Accordingly, we reverse the postconviction order granting Groth's motion for a new trial.

II. Groth's Cross-Appeal

A. Sentencing

1. Background

¶ 16. At sentencing, the prosecutor offered his recommendation stating, in part:

[Groth] has a history of violence against the child who bore his child, this young woman who[m] he impregnated and then beat, threatened, threatened with weapons.
You know, Your Honor, I was raised to believe that men who strike women are cowards and are not fit to sit in the company of other men. That's something my father taught me, and it's a lesson that I always wholeheartedly believed.
I didn't get the presentence investigation [report] until this morning. I have to say that one of the things that I just couldn't understand was how a person in Jeffrey Groth's shoes could take a punch to the face and get knocked out and then decide that the appropriate remedy to that was to load his car with thugs and weapons including guns and arrange for other guns to be brought to the scene to settle this dispute where he got punched in the face.
But this presentence investigation report gives me a whole new understanding of Jeffrey Groth and one which I admit I really hadn't quite grasped as I was prosecuting him, as I was preparing this case for trial, and as I was trying it.
This defendant is a thug and he's a coward. He beats up women. He beats up women who are pregnant.

(Emphasis added.) Later in his recommendation, the prosecutor returned to the same theme stating: " [Groth]'s a thug. He's a woman beater. He beats women who are pregnant." (Emphasis added.)

¶ 17. Sentencing Groth, the court commented that Groth had "treated" his girlfriend, who was pregnant at the time of sentencing, "with disrespect as pointed out by [the prosecutor]." (Emphasis added.)

¶ 18. Groth moved for resentencing alleging, with support from an affidavit from his girlfriend, that he had been sentenced based on inaccurate information about "beating pregnant women." In response to Groth's motion, the prosecutor wrote:

The State did not misrepresent the defendant's prior history with respect to domestic violence. The defendant has repeatedly beat [his girlfriend] as [she] herself has indicated in previous moving court documents when she sought a restraining order against the defendant. However, the prosecutor did argue at the time of sentencing that the defendant beat "pregnant women." At this time, almost one year after the sentencing, the prosecutor has no recollection of what the factual basis was for that representation. The prosecutor now concedes in reviewing the sentencing transcript and also the pre-sentence investigative report, along with all of the police reports which accompanied this case, that the prosecutor cannot find any factual basis for the representation that the defendant beats "pregnant women."

(Emphasis added.)

¶ 19. In his motion, Groth also contended that he had not received the presentence report until the morning of sentencing, that he had had only a "very brief' conversation about its contents with defense counsel, that he "did not specifically discuss the details of the report," and that he "was sentenced without an opportunity to understand and respond" to the presentence. He contended that several statements in the presen-tence were inaccurate, and he specifically supported all his contentions with affidavits — from postconviction counsel, an investigator from the State Public Defender's Office, his girlfriend, and himself. Groth also asserted that counsel was ineffective for failing to object to the "timeliness" of the presentence and to the inaccuracy of some of its information, and, implicitly, for failing to adequately confer with him and prepare for sentencing.

¶ 20. In its written decision addressing Groth's postconviction motion, the court noted that because it was ordering a new trial, "all the rest [of the issues Groth had raised in his motion] would be moot." The court added, however, that it "believe[d] none of the balance ha[d] merit." And the court did comment on the prosecutor's comments about heating pregnant women:

Concerning the prosecutor's reference to Groth beating up pregnant women, the court did not take into account that erroneous allegation. Rather[,] the presentence report reflected that defendant had treated his girlfriend with disrespect and that was commented upon during the court's sentencing. More important, the sentence given primarily reflected upon what took place at the Roadhouse Tavern and events leading up to same.

The court did not address any of Groth's other allegations that he had been sentenced based on inaccurate information. The court also did not address Groth's allegation that counsel had rendered ineffective assistance at sentencing, except with respect to counsel's failure to object to the comments about beating pregnant women, which the court termed "a minor flaw in his defense of Groth" that had not made any difference.

2. Discussion

¶ 21. A defendant has a due process right to be sentenced based on accurate information. State v. Johnson, 158 Wis. 2d 458, 468, 463 N.W.2d 352 (Ct. App. 1990) (citing United States v. Tucker, 404 U.S. 443, 447 (1972)). Whether a defendant has been denied the due process right to be sentenced based on accurate information is a "constitutional issue" presenting "a question of law which we review de novo." State v. Coolidge, 173 Wis. 2d 783, 789, 496 N.W.2d 701 (Ct. App. 1993).

¶ 22. A defendant who asks for resentencing because the court relied on inaccurate information must show both that the information was inaccurate and that the court relied on it. Id. The defendant carries the burden of proving both prongs — inaccuracy of the information and prejudicial reliance by the sentencing court — by clear and convincing evidence. Id. See also State v. Littrup, 164 Wis. 2d 120, 132, 473 N.W.2d 164 (Ct. App. 1991). Once a defendant does so, the burden shifts to the State to show that the error was harmless. State v. Anderson, 222 Wis. 2d 403, 410-11, 588 N.W.2d 75 (Ct. App. 1998). An error is harmless if there is no reasonable probability that it contributed to the outcome. Id. at 411.

¶ 23. Moreover, as we have explained, "the integrity of the sentencing process" depends on certain "safeguards" to assure the opportunity to address and correct any possible inaccuracies. See State v. Mosley, 201 Wis. 2d 36, 44, 547 N.W.2d 806 (Ct. App. 1996).

To protect the integrity of the sentencing process, the court must base its decision on reliable information. Several safeguards have been developed which effectively protect the due process right of a defendant to be sentenced on the basis of true and correct information. The defendant and defense counsel are allowed access to the presentence investigation report and are given the opportunity to refute what they allege to be inaccurate information.

Id. (citations omitted). A defendant's right to be sentenced based on accurate information includes not only the opportunity to challenge information in a presen-tence, see State v. Perez, 170 Wis. 2d 130, 141-42, 487 N.W.2d 630 (Ct. App. 1992), but also, through the right of allocution, the "opportunity to make a statement with respect to any matter relevant to the sentence," Wis. Stat. § 972.14(2). Where, however, a defendant fails to object to allegedly erroneous information presented at sentencing, and fails to challenge the information when exercising the right of allocation, see Wis. Stat. § 972.14(2), we determine whether the sentencing court erroneously exercised discretion in considering the information. See Mosley, 201 Wis. 2d at 45-46.

¶ 24. At sentencing, Groth did not challenge the prosecutor's references to the beating of pregnant women. His silence stood as a tacit acknowledgement that the information was true. See id. at 46 ("Because [defendant] did not contest accuracy of [detective's] statements, the court did not [erroneously exercise] its discretion by considering them."). Thus, we see no basis on which to conclude that the sentencing court erroneously exercised discretion in considering the prosecutor's comments.

¶ 25. The State argues that Groth, having failed to object to or dispute the prosecutor's comments, waived the right to complain on appeal that he was sentenced based on inaccurate information. Whether, given the paramount importance of the "integrity of the sentencing process," see id. at 44, waiver may be invoked to preclude a defendant's challenge to a sentencing based on inaccurate information remains unclear; the cases the parties cite simply do not say. What is clear, however, is that despite a defendant's failure to object to or dispute the information, we may address the merits of the defendant's claim. See Johnson, 158 Wis. 2d at 468-71 (despite failure to object to allegedly inaccurate information presented at sentencing, appellate court addressed merits of claim that defendant was sentenced based on inaccurate information). Indeed, despite the failure to object, a defendant may be entitled to resentencing if the sentence was "affected by a trial court's reliance on an improper factor"; we may "ignore the waiver." State v. Leitner, 2001 WI App 172, ¶¶ 39, 41, 42, 247 Wis. 2d 195, 633 N.W.2d 207, aff'd, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341.

¶ 26. Here, fairness — to both Groth and the State —requires that we "ignore the waiver." See id. at ¶ 42. The State has conceded that the information about beating pregnant women was presented to the sentencing court without factual basis that is discernable from the record as it comes to us. Moreover, Groth's allegations, specifically and substantially supported by affidavits accompanying his postconviction motion, reached the issues of whether he was sentenced based on "true and correct information," and whether he was "given the opportunity to refute what [he] allege[d] to be inaccurate information." See generally id. Thus, even if waiver were applied, the merits of Groth's motion for resentencing still would be reached within an ineffective-assistance-of-counsel context, see Anderson, 222 Wis. 2d at 405, 408-12, although the standards we would apply would be different, see Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986).

¶ 27. Notwithstanding the postconviction court's disclaimer of reliance on the inaccurate information about beating pregnant women, we conclude, for three reasons we will explain, that the record establishes a very strong likelihood that the sentencing court did indeed rely on the information. Further, the State has not established that the error was harmless. See Anderson, 222 Wis. 2d at 411.

¶ 28. A postconviction court's assertion of non-reliance on allegedly inaccurate sentencing information is not dispositive. Id. at 409-10. We may independently review the record to determine the existence of any such reliance. See id. at 407-10. Here, we conclude that the sentencing court relied on what the State concedes was information the prosecutor presented, without any discernable basis in the record as it comes to us, about beating "pregnant women."

¶ 29. First, the postconviction court's decision declaring its non-reliance was, at least in part, factually inaccurate. Disclaiming reliance on the inaccurate information, the decision stated that, in sentencing, the court had merely relied on the presentence report's reference to "disrespect." At the sentencing, however, the court commented on Groth's "disrespect as pointed out by [theprosecutor]." (Emphasis added.) That "disrespect," as pointed out by the prosecutor at sentencing, included three explicit references to beating pregnant women.

¶ 30. Second, the postconviction court's disclaimer of reliance on the information about beating pregnant women did not account for the extent to which the sentencing court may well have been influenced indirectly through the prosecutor's recommendation that was based on his impression that Groth beat pregnant women. After all, the prosecutor emphasized that his recommendation had been influenced by the "new understanding of Jeffrey Groth" he had gained from the presentence, and that an important part of that "new understanding" derived from the knowledge that Groth "beats up women who are pregnant." Unquestionably, the prosecutor's recommendation was among the components considered by the court in reaching its sentencing decision. But that recommendation was based, in part, on precisely what the prosecutor later conceded was unsupported by the record.

¶ 31. Third, the beating of pregnant women is so heinous that it would be difficult (if not impossible or improper) for any sentencing court to ignore it as an aggravating factor affecting the assessment of a defendant's character. Thus, a postconviction court's disclaimer of reliance, particularly where the prosecutor has emphasized that that very fact influenced his recommendation, is difficult to accept.

¶ 32. Moreover, even if some doubt about the sentencing court's reliance may linger, Groth's other challenges to the accuracy of the sentencing information, adequately supported by affidavits, would require further trial court consideration. Therefore, rather than requiring a complicated evidentiary hearing on whether, and to what extent or consequence, any of the information may have been inaccurate (and possibly also requiring an evidentiary hearing on whether Groth was afforded an adequate opportunity to examine the presentence and respond, and on whether counsel was ineffective), we conclude that resentencing is the most prudent approach to assure "the integrity of the sentencing process." Mosley, 201 Wis. 2d at 44.

¶ 33. Additionally, we note, at the resentencing, the State is not precluded from presenting information regarding whether Groth had any history of beating pregnant women. And, of course, Groth may offer information to dispute the State's assertions. As we have intimated, such alleged conduct certainly would be salient to a fair assessment of a defendant's character.

¶ 34. Accordingly, we conclude that the record establishes both the State's conceded present inability to discern a factual basis for the information it presented about beating pregnant women and the sentencing court's apparent, consequential reliance on those allegations in sentencing Groth. Thus, "the integrity of the sentencing process" requires resentencing, for which Groth will have the full opportunity to review the presentence investigation report, and at which the court can consider any additional challenges to its contents, as well as any argument Groth may offer regarding the proportionality of his sentences and those of the co-defendants.

B. Additional Arguments

¶ 35. Groth also argues that, should we agree with the State's challenge to the order for a new trial, we should, nonetheless, order a new trial in the interests of justice. In addition to re-wrapping his earlier arguments on the jury instructions, he points to: (1) an error in the jury instructions — the trial court's reference to "the defendant" rather than the "principal" in the shooting; and (2) an error in the prosecutor's closing argument — a statement that the jury is not to give the defendant the benefit of every reasonable doubt. Groth also asserts that the prosecutor erroneously argued that he had the getaway car waiting with the door open. His arguments have little merit.

¶ 36. As applicable to Groth's arguments, Wis. Stat. § 752.35 provides:

Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record[,] and may ... remit the case to the trial court. . . for a new trial....

Here, while Groth properly points to certain misstatements by both the court and prosecutor, he has failed to establish the slightest probability that justice miscarried.

¶ 37. The trial court's erroneous reference to "the defendant" in the jury instructions would not have misled the jury; the balance of the instructions, the arguments, and, indeed, the entire trial clearly distinguished between the defendant and the shooter. See State v. Zelenka, 130 Wis. 2d 34, 49-52, 387 N.W.2d 55 (1986) (in trial of defendant for being party to the crime of first-degree murder, jury instruction erroneously referring to "the defendant" rather than to the person who directly committed the murder was harmless error where the "record in its entire [t]y unquestionably support [ed] the conclusion that the jury could not have [misjunderstood" the distinction between the defendant and the person who directly committed the crime). Similarly, the prosecutor's single misstatement about reasonable doubt was an obvious slip-of-the-tongue, completely countered by the balance of his argument, the defense argument, and the jury instructions.

¶ 38. Groth contends that the prosecutor, in his closing argument, incorrectly stated that he, as the getaway driver, had the car door open for Lanaghan when, in fact, "the only evidence on point was that it was closed until [another accomplice] ran to the car ahead of Lanaghan." Groth, however, fails to explain how this distinction could have made any difference. See Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995) (appellate court need not address "amorphous and insufficiently developed" argument). Even assuming Groth's view of the evidence is correct, he has offered nothing to establish that the real controversy was not fully tried or that justice miscarried. See Wis. Stat. § 752.35.

III. CONCLUSION

¶ 39. Therefore, we reverse the postconviction order granting Groth's motion for a new trial and denying his motion for resentencing, affirm the judgment of conviction for aiding a felon and carrying a concealed weapon, reinstate the judgment of conviction for second-degree reckless homicide, party to a crime, while armed with a dangerous weapon, and remand for resentencing.

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

       Groth was sentenced on all three counts at the same hearing and, therefore, the court's determination of his sentence on any of the counts may well have affected its determination and structuring of his sentences on all three. Neither party on appeal has suggested otherwise. Therefore, although Groth has not challenged his convictions for aiding a felon and carrying a concealed weapon; his resentencing should encompass those counts as well as the homicide. See State v. Anderson, 222 Wis. 2d 403, 409-12, 588 N.W.2d 75 (Ct. App. 1998).


author: FINE, J.

text:
    Associates Financial Services Company of Wisconsin, Inc., Plaintiff-Respondent, v. Ora Jean Brown, a/k/a Ora Jean Lockhart and the City of Milwaukee, Defendants, Alex Lockhart and Mary Lee Lockhart, Defendants-Appellants.
    Court of Appeals

      No. 01-3416.

      Submitted on briefs August 6, 2002.

    Decided November 12, 2002.

    2002 WI App 300
    (Also reported in 656 N.W.2d 56.)

      On behalf of the defendants-appellants, the cause was submitted on the brief of John D. Dries, Wauwa-tosa.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Arthur M. Moglowsky and Penny G. Gentges of Bass & Moglowsky, S.C., Milwaukee.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   FINE, J.

¶ 1. Alex and Mary Lee Lockhart appeal the trial court's order granting summary judgment in favor of Associates Financial Services Company of Wisconsin, Inc. The trial court concluded that Associates Financial received a mortgage free and clear of the Lockharts' adverse claim to the property because Associates Financial was a subsequent good-faith purchaser for value. The Lockharts contend that whether or not Associates Financial reasonably searched the Milwaukee County Register of Deeds's office and thus should have had notice of their interest in the property is a disputed question of fact. We disagree and affirm.

I.

¶ 2. On November 22, 1991, Ora Jean Brown conveyed her house to Alex and Mary Lee Lockhart by quitclaim deed. The deed incorrectly described the property as:

Parcel 1 of Certified Survey Map No. 1151 being a part of the Northwest One-Quarter (1/4) of Section Twenty-Nine (29), Township Eight (8) North, Range Twenty-One (21) East, in the City of Milwaukee, County of Milwaukee and State of Wisconsin recorded in the office of the Register of Deeds for Milwaukee County, Wisconsin, on March 31, 1971, on Reel 578, Image 1465, as Document No. 4582012.

(Emphasis added.) The correct legal description of the property is: Certified Survey Map Number 1511. The quitclaim deed was recorded and indexed by the Register of Deeds for Milwaukee County on February 14, 1992.

¶ 3. On January 20, 1997, Brown executed a mortgage on the property to Associates Financial for $119,833.68. The mortgage was recorded and indexed with the Register of Deeds on January 20, 1997.

¶ 4. Brown defaulted on the mortgage, and Associates Financial filed a complaint to foreclose, naming Brown as the defendant. After it filed the complaint, Associates Financial learned that Alex and Mary Lock-hart held a quitclaim deed to the property, and added them to the lawsuit as defendants. The Lockharts then alleged that their interest in the property was superior to Associates Financial's mortgage because they held a recorded deed for the property.

¶ 5. Associates Financial moved for summary judgment. It contended that its mortgage was superior to the Lockharts' quitclaim deed because the mortgage was properly recorded pursuant to Wis. Stat. § 706.08(l)(a). The Lockharts claimed that summary judgment was inappropriate because an issue of fact existed as to whether Associates Financial could have, through "reasonable inquiry," discovered their interest in the property by using a computer system at the Register of Deeds's office.

¶ 6. As noted, the trial court granted Associates Financial's motion for summary judgment. It determined that Associates Financial took the mortgage as a "subsequent purchaser, in good faith, and for a valuable consideration, free and clear of any interests that the [Lockharts] may have in the property" because Associates Financial did not have actual or constructive notice of the Lockharts' quitclaim deed. The trial court reasoned that:

even if they looked in the computer, what was in that computer is not constructive notice because it only shows a deed between Ora Jean Brown and Lockhart for some property that is not properly described, and not the property they were dealing with, and they lent the money on, and they didn't have to do anymore than that.

¶ 7. Our review of the trial court's grant of summary judgment is de novo, and we apply the same standards as did the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). First, we examine the pleadings to determine whether a proper claim for relief has been stated. Id., 136 Wis. 2d at 315, 401 N.W.2d at 820. If the complaint states a claim and the answer joins the issue, our inquiry then turns to whether any genuine issues of material fact exist. Ibid. Wisconsin Stat. Rule 802.08(2) sets forth the standard by which summary judgment motions are to be judged:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

¶ 8. As noted, the Lockharts allege that Associates Financial's search of the tract index was unreasonable because Associates Financial failed to use the computer system at the Register of Deeds's office, which would have disclosed their interest in the property. The Lockharts contend, however, that this issue cannot be decided on summary judgment because it involves a disputed question of fact. We disagree.

¶ 9. Wisconsin Stat. § 706.08(l)(a) is a codification of the common law bona-fide-purchaser doctrine. In re Carley Capital Group, 117 B.R. 951, 958 (Bankr. W.D. Wis. 1990). As we have seen, it declares that "every conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first." Wis. Stat. § 706.08(1)(a). The purpose of this section is "to render record title authoritative to protect a purchaser who relies on the record and is a purchaser in good faith and for a valuable consideration." Kordecki v. Rizzo, 106 Wis. 2d 713, 718-719, 317 N.W.2d 479, 482 (1982).

¶ 10. Here, the undisputed facts support the trial court's grant of summary judgment. First, the Lock-harts do not argue that they recorded the quitclaim deed, which reflected their interest in the property, "as provided by law." See Wis. Stat. § 706.08(1)(a); see also Wis. Stat. § 706.05(2) (requirements for an instrument offered for record). Indeed, in response to Associates Financial's request for admissions, the Lockharts admitted that the quitclaim deed was not properly recorded: "[the] deed . . . described [as Certified Survey Map Number 1151] does not contain a valid description of the land conveyed." The Lockharts further admitted that the title to the property, "with the exact legal description [Certified Survey Map Number 1511] was vested in defendant, Ora Jean Brown" on January 20, 1997, the date Brown executed the mortgage. (Upper-casing omitted.) Moreover, the Lockharts do not contend that Associates Financial did not record its mortgage "as required by law." Thus, it is undisputed that Associates Financial recorded its interest in the property under § 706.08(1)(a) first.

¶ 11. Second, the Lockharts do not dispute that Associates Financial took the mortgage in good faith and for value. A purchaser or mortgagee takes its interest in good faith if it is "without notice, constructive or actual, of a prior conveyance." Kordecki, 106 Wis. 2d at 719-720, 317 N.W.2d at 483. The scope of inquiry is "limited to 'the contents of all instruments in the chain of title and of the contents of instruments referred to in an instrument in the chain of title.'" In re Corley Capital Group, 117 B.R. at 959 (quoted source omitted); see also Wis. Stat. § 706.09. An instrument is within the chain of title when it is "discoverable by reasonable search of the public records and indices affecting real estate in the offices of the register of deeds and in probate and of clerks of courts of the counties in which the real estate is located." Wis. Stat. § 706.09(4).

¶ 12. Here, the Lockharts do not contend that the tract index showed that they had an interest of any kind in the property when Associates Financial recorded the mortgage. Thus, in response to Associates Financial's request for admissions, the Lockharts admitted that a search of the index system would not have shown the quitclaim deed in the chain of title: "a search of the tract index system in the office of the Register of Deeds for Milwaukee County . . . would not have disclosed the recorded deed described [as Certified Survey Map Number 1151]." (Underlining in original.) The Lockharts also do not dispute that Associates Financial was a good-faith purchaser for value. Accordingly, the Lock-harts' interest in the property is void as against Associates Financial — it is undisputed that Associates Financial "recorded first... in good faith and for a valuable consideration."

¶ 13. Finally, the Lockharts do not argue that. Associates Financial had notice of their interest in the property under Wis. Stat. § 706.09. Section 706.09 "generally describes situations where a purchaser of land may take the property free from any adverse or inconsistent claim of which he or she lacks notice." Rock Lake Estates Unit Owners Ass'n v. Township of Lake Mills, 195 Wis. 2d 348, 371, 536 N.W.2d 415, 424 (Ct. App. 1995). It provides, as relevant:

(1) When conveyance is FREE of PRIOR adverse claim. A purchaser for a valuable consideration, without notice as defined in sub. (2), and the purchaser's successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
(b) Conveyance outside chain of title not identified by definite reference. Any conveyance, transaction or event not appearing of record in the chain of title to the real estate affected, unless such conveyance, transaction or event is identified by definite reference in an instrument of record in such chain. No reference shall be definite which fails to specify, by direct reference to a particular place in the public land record, or, by positive statement, the nature and scope of the prior outstanding interest created or affected by such conveyance, transaction or event, the identity of the original or subsequent owner or holder of such interest, the real estate affected, and the approximate date of such conveyance, transaction or event.
(2) Notice of PRIOR claim. A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser's interest arises in law or equity:
(b) Notice of record within 30 years. There appears of record in the chain of title of the real estate affected, within 30 years and prior to the time at which the interest of such purchaser arises in láw or equity, an instrument affording affirmative and express notice of such prior outstanding interest conforming to the requirements of definiteness of sub. (1) (b).

¶ 14. The Lockharts' argument that Associates Financial should have searched for prior interests in the Register of Deeds's computer system is without merit. Wisconsin Stat. § 706.09(2)(b) does not require purchasers for value to see if there is some way, in the absence of a proper recording, that an interest could possibly be discovered. Indeed, such a requirement would be contrary to the very purpose of the recording statutes — to ensure a clear and certain system of property conveyance. See Kordecki, 106 Wis. 2d at 718-719, 317 N.W.2d at 482.

By the Court. — Order affirmed.

       It is unclear from the record whether Ora Brown is Alex Lockhart's sister or Mary Lockhart's sister. The Lockharts' brief in opposition to summary judgment claims "Ora Jean Brown and Alex Lockhart are sister and brother," while Associates Financial's rebuttal brief on summary judgment claims "Mary Lockhart and Ora Jean Brown are sisters."

       Brown executed other mortgages on the property to Tri City National Bank and Associates Financial from December of 1991 through January of 1997. The only mortgage at issue in this case is Brown's January 20, 1997, mortgage to Associates Financial.

       The Lockharts also filed cross-claims for reformation in equity and slander of title, which were dismissed in the order granting summary judgment. The Lockharts addressed the reformation claim in the conclusion section of their brief, where they claimed that:
      resolution of the issue of reformation necessitates resolving key issues of fact including, without limitation: 1) the scope of the search by Associates; 2) whether or not Associates' search was reasonable in terms of its scope and depth; 3) the intent of Brown and Lockharts; 4) whether Lockharts changed their financial position to their detriment; 5) whether Lockharts relied in good faith on the real estate transaction between Brown and Lockharts; and 6) whether or not Brown would be unjustly enriched if enforcement of the transaction were denied.
      These contentions are not adequately briefed — they are conclu-sory and undeveloped. Thus, we decline to address them. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992) (appellate court can "decline to review issues inadequately briefed"). Moreover, the Lockharts do not argue the issue of slander of title in their appellate brief. Thus, it is waived. See Reiman Assocs., Inc. v. R/A Adver, Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981) (contentions not briefed are waived).

       Wisconsin Stat. § 706.08(1)(a) provides:
      Except for patents issued by the United States or this state, or by the proper officers of either, every conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first.
      Effective September 1, 2002, non-substantive style changes were made to this section. See 2001 Wis. Act 103, §§ 330, 331.

       The trial court also determined that the quitclaim deed was an invalid conveyance because it did not accurately identify the land conveyed pursuant to Wis. Stat. § 706.02(1)(b). In light of our resolution of this case on other grounds, we will not discuss this issue. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).

       Effective September 1, 2002, non-substantive style changes were made to this section. See 2001 Wis. Act 103, §§ 330, 331.

       Effective September 1, 2002, non-substantive style changes were made to this section. See 2001 Wis. Act 103, §§ 330, 331.


author: WEDEMEYER, EJ.

text:
    M. Susan Churchill, Plaintiff-Respondent, v. WFA Econometrics Corporation and Wendy Drefahl, Defendants-Appellants, American Family Mutual Insurance Company, Intervenor. [Case No. 02-0348.] M. Susan Churchill, Plaintiff-Respondent, v. WFA Econometrics Corporation and Wendy Drefahl, Defendants-Appellants, American Family Mutual Insurance Company, Intervenor-Respondent. [Case No. 02-0523.]
    Court of Appeals

      Nos. 02-0348, 02-0523.

      Submitted on briefs October 1, 2002.

      Decided November 12, 2002.

    2002 WI App 305
    (Also reported in 655 N.W.2d 505.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Wayne M. Yankala of
      Mingo & Yankala, Milwaukee and Thomas J. Lonzo of Cook & Franke S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert B. Corris of Robert B. Corris, S.C., Milwaukee.
    On behalf of the intervenor-respondent, the cause was submitted on the brief of Terry J. Booth of Piper & Schmidt, Milwaukee.
    Before Wedemeyer, EJ., Fine and Schudson, JJ.
   WEDEMEYER, EJ.

¶ 1. WFA Econometrics Corporation and Wendy Drefahl appeal from a judgment entered after a jury found in favor of M. Susan Churchill in a defamation action (case No. 02-0348). In a separate appeal (case No. 02-0523), WFA and Drefahl appeal from a decision and a judgment declaring that there was no insurance coverage for the defamation claim under a policy issued to WFA by American Family Mutual Insurance Company. Because of the interrelated issues, we consolidate these two appeals.

¶ 2. WFA and Drefahl claim that: (1) the alleged defamatory statements were privileged as a matter of law; and (2) on the insurance issue, there was insufficient evidence to support the verdict in that there were no damages. Because the absolute privilege applicable to statements made in the course of a judicial proceeding applies, we reverse the judgment in case No. 02-0348. Based on our decision, there is no need to address insurance coverage issues in companion case No. 02-0523 and, therefore, that appeal is dismissed.

I. BACKGROUND

¶ 3. This case finds its genesis in an underlying divorce proceeding, In re the Marriage of Sandra Freyermuth v. James Freyermuth, (Kenosha County Circuit Court Case No. 97-FA-000233). In that case, Attorney Katherine Lingle represented Sandra Freyermuth and Attorney Thomas O'Brien represented James Freyer-muth. As a part of the proceedings, Lingle hired Churchill to prepare a qualified domestic relations order (QDRO), which was pertinent to the issue involving the division of pension proceeds. Churchill prepared the QDRO and forwarded it to Lingle. Lingle forwarded it to O'Brien for his review. O'Brien hired Drefahl of WFA to review the QDRO and offer comments on it.

¶ 4. Drefahl responded to O'Brien's request by letter dated March 30, 1999. There were three specific comments in the letter, which Churchill alleged to be defamatory: (1) "An experienced and knowledgeable QDRO drafter would know this."; (2) "Paragraph 5 is yet another area that demonstrates Attorney Churchill's lack of knowledge and expertise in drafting QDROs."; and (3) "As we have seen in many other QDROs drafted by Attorney Churchill over the years, this one falls short of the requirements of a comprehensive, logical, and legal document." O'Brien forwarded this letter to Lingle so that necessary adjustments could be made to the QDRO. Lingle shared the letter with Churchill.

¶ 5. As a result of the three statements referenced above, Churchill filed this action against WFA and Drefahl. WFA and Drefahl answered Churchill's complaint by asserting that the statements were expressions of opinion, that they were substantially true, and that the defendants were entitled to a conditional or absolute privilege because the statements were made in the course of a judicial proceeding.

¶ 6. WFA and Drefahl moved for summary judgment on the basis that an absolute privilege applied to the statements. They argued that because the statements were made in the course of a judicial proceeding and because they were relevant to the proceeding, the defamation claim should be dismissed. The trial court concluded that the absolute privilege asserted by WFA and Drefahl did not exist under Wisconsin law.

¶ 7. The case proceeded to trial in October 2001. In a 10-2 verdict, the jury found in favor of Churchill and awarded damages in the sum of $500. The trial court denied the defendants' post-verdict motions, and judgment was entered. The trial court also ruled that the American Family Insurance policy did not provide coverage to WFA or Drefahl for any of the claims alleged in the underlying lawsuit. WFA and Drefahl now appeal.

II. DISCUSSION

¶ 8. The dispositive issue in this case is whether the statements Drefahl made in her March 30, 2001 letter are protected by the absolute privilege. Whether the absolute privilege applies is a question of law that we review independently. Rady v. Lutz, 150 Wis. 2d 643, 647, 444 N.W.2d 58 (Ct. App. 1989). We conclude that the absolute privilege applies to the statements made by Drefahl.

¶ 9. Judicial proceedings are protected by an absolute privilege. Id. at 647-48. The absolute privilege rule was established to provide litigants with the freedom to access the courts, "to preserve and defend their rights and to protect attorneys during the course of their representation of clients." Id. at 648. The rule is not limited to protecting attorneys, but also extends to witnesses and experts who are involved in the judicial proceedings. See Bromund v. Holt, 24 Wis. 2d 336, 341-42, 129 N.W.2d 149 (1964).

¶ 10. In order for the privilege to apply, the statements must satisfy two requirements: (1) the statement "must be made in a procedural context that is recognized as affording absolute privilege"; and (2) the statement "must be relevant to the matter under consideration." Rady, 150 Wis. 2d at 648. Thus, we must determine whether the statements made by Drefahl satisfy these two requirements.

¶ 11. The trial court in this case failed to address these factors. It overlooked the precedential case law altogether. It erroneously stated that no absolute privilege exists in this state. Instead, it concluded that the qualified privilege involved here was the work-product privilege. It ruled that the statements were not protected by the qualified privilege because Drefahl admitted that she was retained by O'Brien as a consultant and potential witness. The trial court incorrectly reasoned that if Drefahl had agreed only to a consultation and clearly stated that she did not want to be a witness or testify during the proceeding, her statements would not have been actionable in a defamation case. In other words, the trial court concluded that the further a witness distanced herself or himself from the potential of actually having to testify in a case, the greater probability that a privilege would apply. The trial court was mistaken because the opposite is true.

¶ 12. As noted, the correct analysis under the circumstances in this case is to apply the two-part absolute privilege test set forth in Rady. "It must be made in a procedural context that is recognized as affording absolute privilege, and it must be relevant to the matter under consideration." Id. at 648. The first part indicates that for the absolute privilege to apply, the statements must be made in a procedural context that is recognized as affording the absolute privilege. Id. We conclude that the statements made by Drefahl satisfy this requirement. The undisputed facts demonstrate that Drefahl was retained by O'Brien to review the QDRO drafted by opposing counsel's consultant. O'Brien advised Drefahl that the divorce case ended with a devastating result for his client and that he wanted to make sure that the QDRO did not create any further problems. O'Brien asked Drefahl to be exceptionally careful in reviewing the terms of the QDRO to prevent any further "significant hardship" for his client. Drefahl responded by criticizing several parts of the QDRO that may create ambiguity, which could have further hurt O'Brien's client. Drefahl knew that she may have to testify with respect to her opinions relative to the QDRO.

¶ 13. The challenged statements were made within the context of an expert's letter, which advised a litigant's attorney on a matter in dispute. Based on all of these facts, we conclude that the statements were made in a proper procedural context sufficient to satisfy the first requirement. They were made during the pendency of a divorce proceeding in response to an attorney's request. The statements were offered in an attempt to assist the attorney in protecting his client from further hardship and prior to the time that the court had approved the QDRO. This situation falls squarely within the procedural context that is covered by the absolute privilege afforded to statements made during the course of a judicial proceeding.

¶ 14. The second requirement before the absolute privilege cloaks the proffered statements is that the statements must be relevant to the matter. Id. at 649-50. In determining relevance in this context, however, it is important to note that the statements should be liberally construed, and any doubt as to relevance should be resolved in favor of finding the statement privileged. Id. at 650. The purpose behind the liberal relevance rule is to alleviate fear that litigants have "that by some mistake as to facts or some excess of zeal, or by some error. . . they may be subjected to . . . litigation . . . [or] may well feel that justice is too dearly bought and that it is safest to abandon [the] pursuit . . . ." Snow v. Koeppl, 159 Wis. 2d 77, 81, 464 N.W.2d 215 (Ct. App. 1990) (citation omitted).

¶ 15. Here, the alleged defamatory statements were not "plainly irrelevant." See Rady, 150 Wis. 2d at 649. They all addressed the competence of an opposing expert. Although they may have been indelicate and may have exceeded what was necessary to provide a professional opinion, they still are relevant to the matter, and therefore protected by the absolute privilege.

¶ 16. The first challenged statement was the comment that "any qualified drafter would know this." This statement reflected Drefahl's view that because the QDRO prepared by Churchill had included both a coverture fraction and an exact dollar amount, it resulted in inconsistencies and ambiguity. Thus, this statement was relevant to Drefahl's opinion of the competency of the individual who drafted the QDRO. The second and third challenged statements also were directed to the competence of the drafter of the QDRO. Under the liberal relevance standard, we cannot conclude that the statements are "plainly irrelevant." Id.

¶ 17. Accordingly, we conclude that the allegedly defamatory statements made by Drefahl in her letter are absolutely privileged because each was made in the course of a judicial proceeding and relevant to that proceeding. This is a clear case of absolute privilege — it involves material prepared for litigation directed to the lawyer and disseminated to the parties and persons whose roles were material to the litigation. Therefore, we reverse the judgment in the underlying defamation case, and dismiss the appeal in the companion insurance coverage case. Dismissal of the latter is appropriate based on our ruling that the statements are entitled to an absolute privilege. Because no liability can arise from the statements, determining whether or not insurance coverage exists is no longer necessary.

By the Court. — Judgment reversed; judgment dismissed.

       This court may consolidate separate appeals on its own motion. See Wis. Stat. Rule 809.10(3) (1999-2000).

       In case No. 02-0348, WFA and Drefahl raise six additional issues: (1) whether the evidence was insufficient; (2) whether the compensatory damage award of $500 should be declared a nominal damage award; (3) whether the trial court should have changed the punitive damage award to zero; (4) whether the verdict was defective; (5) whether the trial court erroneously exercised its discretion in allowing testimony regarding dissemination of the alleged defamatory remarks; and (6) whether the trial court erred in changing the jury's award of "court costs and attorney's fees" to the dollar amount of $38,264.23. Because we reverse the judgment based on the absolute privilege, there is no need to address these additional issues. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only disposi-tive issues need to be addressed).


author: CANE, C. J.

text:
    Bank One Wisconsin, f/k/a Bank One Milwaukee, Plaintiff-Appellant, v. Robert H. Kahl and Kay F. Kahl, Defendants-Respondents.
    Court of Appeals

      No. 02-0835.

      Submitted on briefs October 29, 2002.

    Decided November 12, 2002.

    2002 WI App 312
    (Also reported in 655 N.W.2d 525.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Penny G. Gentges of Bass & Moglowski, S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Benjamin D. LaFrombois of LaFrombois Law Office, LLC.

    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C. J.

¶ 1. Bank One Wisconsin, f/k/a Bank One Milwaukee, appeals an order reinstating a foreclosure judgment entered against Robert and Kay Kahl, obtained upon default. Believing there was sufficient equity in the Kahls' home to satisfy the debt, Bank One did not seek a deficiency judgment. After the court entered the default judgment, Bank One learned the terms of a senior mortgage on the Kahls' home greatly reduced the believed amount of equity. Eighteen months later, Bank One moved to vacate the judgment and the trial court granted the motion. The Kahls then moved to reverse the order vacating the judgment, arguing Bank One had not brought the motion in a timely manner. The court agreed and reversed its order. It then reentered the original foreclosure judgment because Bank One had waited more than a year before seeking relief from the foreclosure, contrary to certain provisions of Wis. Stat. § 806.07.

¶ 2. On appeal, Bank One argues it had a statutory right to dismiss the foreclosure judgment because the Kahls never filed a responsive pleading under Wis. Stat. § 805.04, and the court erred by applying Wis. Stat. § 806.07. In the alternative, it contends the court should have vacated the foreclosure judgment under other provisions of § 806.07 not subject to the one-year time limit.

¶ 3. We determine Bank One did not have a statutory right to dismiss the foreclosure judgment. In addition, we conclude the trial court properly determined Bank One was barred from seeking relief from the judgment because it waited more than a year to seek that relief. Therefore, we affirm the trial court's order reinstating the foreclosure judgment.

BACKGROUND

¶ 4. The facts are undisputed. Bank One began foreclosure proceedings against the Kahls in August 1999. Bank One held a $30,000 mortgage on the Kahls' home, junior to a United States Department of Agriculture mortgage with a stated value of $49,000. Bank One did not seek a deficiency judgment, believing there was enough equity in the Kahls' home, valued at $80,000. The Kahls did not file any responsive pleadings or otherwise appear or contest the foreclosure. The court granted Bank One a default foreclosure judgment on November 3, 1999.

¶ 5. After the court entered judgment, Bank One learned the payoff amount of the USDA mortgage was more than $71,000. On May 21, 2001, Bank One petitioned the trial court to vacate the judgment and dismiss the foreclosure action so that the Bank could refile and seek a deficiency judgment. The court granted the motion.

¶ 6. In June 2001, the Kahls filed a motion to set aside the order, arguing Bank One's motion was untimely under Wis. Stat. § 806.07(l)(a) and (l)(c) because the bank had waited more than a year to seek relief. Bank One argued it had a right to dismiss the judgment under Wis. Stat. § 805.04(1) because the Kahls had never filed a responsive pleading. In the alternative, the bank argued if § 806.07 applied, the court should resolve the matter under subsections (l)(g) and (l)(h), which do not have the one-year limitation. The court granted the Kahls' motion.

¶ 7. Bank One filed a motion to reconsider. The trial court denied the motion, determining Wis. Stat. § 806.07, not Wis. Stat. § 805.04(1), applied. It further concluded that § 806.07(l)(a) and (l)(c) applied and therefore Bank One was required to have filed its motion within a year of the original judgment. Finally, the court refused to grant relief from the judgment under subsections (l)(g) and (l)(h). Bank One appeals.

DISCUSSION

¶ 8. Bank One first argues that Wis. Stat. § 805.04(1) grants it an absolute right to dismiss the foreclosure judgment without the court's approval. Section 805.04(1) provides:

Voluntary dismissal: effect thereof. (1) By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.

¶ 9. Bank One argues the Kahls never filed a responsive pleading in the action and therefore Wis. Stat. § 805.04(1) allows it to dismiss the judgment. In response, the Kahls contend § 805.04(1) does not apply in this case because the statute applies only to the early stages of legal proceedings. Whether a statute applies to the undisputed facts is a question of law that we review de novo. State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13 (Ct. App. 1989).

¶ 10. We conclude Wis. Stat. § 805.04(1) does not apply in this situation. The purpose of this statute allowing the plaintiff to unilaterally dismiss a complaint is to facilitate voluntary dismissals, but to limit them to the early stages of proceedings. Gowan v. McClure, 185 Wis. 2d 903, 913, 519 N.W.2d 692 (Ct. App. 1994). The statute allows dismissal only if no adverse party has filed a responsive pleading. Wis. Stat. § 805.04(1). While it is true the Kahls never filed a response to Bank One, the entry of judgment against the Kahls precludes the application of the statute. The statute only applies to dismissals, it does not address vacating judgments. Once judgment is entered, there is no "action" to dismiss.

¶ 11. Bank One also argues Wis. Stat. § 805.04 should apply because its purpose is to permit plaintiffs to "voluntarily dismiss an action so long as no other party will be prejudiced." Clark v. Mudge, 229 Wis. 2d 44, 48, 599 N.W.2d 67 (Ct. App. 1999). In Clark, we determined it was not error for a trial court to allow plaintiffs to withdraw their wrongful death claims so they could refile and take advantage of an increase in statutory damage limits for loss of society and companionship. Id. at 51. Bank One specifically points to the factors we considered in upholding the motion in Clark, such as the short time between the original filing and the motion, the early stage of the proceeding, and the fact the motion was not brought to harass the defendants. See id. Bank One argues similar factors in this case weigh in favor of allowing it to dismiss the case.

¶ 12. We are not persuaded. Clark addresses Wis. Stat. § 805.04(2), which allows the plaintiff to request the trial court dismiss the action. Bank One is contending it had an absolute right to terminate the proceeding under § 805.04(1) regardless of the court's approval. In any event, both § 805.04(2) and Clark address situations involving the early stages of proceedings and axe inapplicable in this case because at the time Bank One brought its motion, the court had already entered judgment. Bank One's motion was to vacate the foreclosure judgment. Section 805.04 only addresses dismissals of actions and, therefore, does not apply.

¶ 13. Instead, the trial court correctly concluded Wis. Stat. § 806.07 applied to this situation. This statute reads, in relevant part:

Relief from judgment or order. (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
(a) Mistake, inadvertence, surprise, or excusable neglect;
(b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15(3);
(c) Fraud, misrepresentation, or other misconduct of an adverse party;
(d) The judgment is void;
(e) The judgment has been satisfied, released or • discharged;
(f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
(g) It is no longer equitable that the judgment should have prospective application; or
(h) Any other reasons justifying relief from the operation of the judgment.
(2) The motion shall be made within a reasonable time, and, if based on sub. (l)(a) or (c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (l)(b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.

¶ 14. The court determined Wis. Stat. § 806.07(l)(a) and (l)(c) applied to this situation and because Bank One had brought its motion more than a year after the judgment, it was barred from granting any relief. Bank One contends even if the statute applies, the court erred by not granting relief under § 806.07(l)(g) and (l)(h). We conclude the court correctly determined § 806.07 was the applicable statute, that subsection (a) applied, and did not erroneously exercise its discretion by not granting relief under subsections (l)(g) and (l)(h).

¶ 15. Wisconsin Stat. § 806.07 deals specifically with relief from a judgment. Section 806.07 provides courts with a means to relieve a party from the oppression of a final judgment. Eau Claire County v. Employers Ins., 146 Wis. 2d 101, 109-10, 430 N.W.2d 579 (Ct. App. 1988). This statute, as opposed to Wis. Stat. § 805.04, contemplates court action after judgment has been entered. Bank One claims that only persons against whom judgment has been entered may seek relief under § 806.07. We are not persuaded. The statute allows relief to "a party or legal representative." While in most cases the petitioning party will be the one on the losing side of a judgment or order, we do not read the statute to limit relief to that party only. Here, Bank One is asking to be relieved from the judgment. This request falls squarely within § 806.07(1)'s language.

¶ 16. In addition, the trial court properly applied Wis. Stat. § 806.07(1)(a) to the facts of this case. Bank One admits the foreclosure judgment was sought on its mistaken belief that the Kahls owed less on the USDA mortgage than they actually did. The statute, however, allows courts to grant relief from á judgment based on mistake only if the motion was brought within a year of the original judgment. Here, Bank One waited eighteen months to bring the motion. The court could not grant relief under § 806.07(l)(a).

¶ 17. We also determine the trial court did not erroneously exercise its discretion by denying Bank One relief under Wis. Stat. § 806.07(l)(g) and (l)(h). Motions under § 806.07 are directed to the discretion of the trial court and we will not disturb this discretion unless it is erroneously exercised. Eau Claire Cty., 146 Wis. 2d at 109. Subsection (1)(g) allows the court to grant relief based on its equitable powers, and applies only to equitable actions. Nelson v. Taff, 175 Wis. 2d 178, 188, 499 N.W.2d 685 (Ct. App. 1993). A mortgage foreclosure is an equitable proceeding. Frick v. Howard, 23 Wis. 2d 86, 96, 126 N.W.2d 619 (1964). Subsection (1)(h) is the statute's "catch-all" provision. In exercising its discretion under subsection (1)(h), the court should consider factors relevant to the competing interests of finality of judgments and relief from unjust judgments. Mogged v. Mogged, 2000 WI App 39, ¶ 13 n.8, 233 Wis. 2d 90, 607 N.W.2d 662. Under both sections, the motion for relief must be brought within a reasonable time. Wis. Stat. § 806.07(2).

¶ 18. The trial court refused to grant Bank One relief under Wis. Stat. § 806.07(1)(g) and (1)(h) primarily because of the length of time between entry of judgment and the motion to vacate. The court considered eighteen months an unreasonable time, noting Bank One had ample opportunity to seek relief after discovering the mistake but chose to wait. Although it is unclear when Bank One first learned the correct balance of the USDA mortgage, it admits it was "shortly" after judgment. Further, the record reflects the discovery was at least prior to the earliest possible date for the foreclosure sale, which could have taken place on May 3, 2000, but never occurred. See Wis. Stat. § 846.101(2) (earliest date for sale of foreclosed property without deficiency judgment is six months after court enters judgment). We conclude the trial court reasonably exercised its discretion when it refused to grant Bank One relief under § 806.07(1)(g) and (1)(h).

¶ 19. Finally, we reject Bank One's argument the trial court's decision improperly determined the bank had elected its remedy. The issue under the election of remedies doctrine is whether the party with a choice of several remedies elected to use one and thereby extinguished the right to pursue others. Gaugert v. Duve, 217 Wis. 2d 164, 173, 579 N.W.2d 746 (Ct. App. 1998). Bank One correctly notes the doctrine of election of remedies is disfavored in Wisconsin and is "confined to cases where the plaintiff may be unjustly enriched, where the defendant has been misled, or the result is otherwise inequitable." Appleton Chinese Food Serv. v. Murken Ins., Inc., 185 Wis. 2d 791, 807, 519 N.W.2d 674 (Ct. App. 1994). We do not, however, view the trial court's decision as forcing Bank One to elect its remedy. The court noted Bank One chose and obtained a particular remedy based on a mistaken belief regarding the USDA mortgage. After learning the mortgage's correct value, however, Bank One chose to do nothing for more than a year. This inaction, not the court's decision, is what limited Bank One's remedies.

By the Court. — Order affirmed.

       All statutory references are to the 1999-2000 edition unless otherwise indicated.

       In its written order, the trial court found both Wis. Stat. § 806.07(1)(a) and (1)(c) applied. The court, however, only addressed subsection (1)(a) in the transcript of the hearing on Bank One's motion to reconsider. In addition, the record does not suggest either party was accused of fraud, misrepresentation, or other misconduct.
      Further, Bank One does not contend the trial court erroneously exercised it discretion by granting relief under Wis. Stat. § 806.07(1)(a) or (1)(c), only that the court should not have applied the statute at all. A court's decision to grant relief under § 806.07 is reviewed for an erroneous exercise of discretion. Eau Claire County v. Employers Ins., 146 Wis. 2d 101, 109-10, 430 N.W.2d 579 (Ct. App. 1988). Based on the foregoing considerations, along with our conclusion the court properly applied subsection (1)(a), we do not address the court's finding regarding subsection (1)(c).