author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Trevor McKee, Defendant-Appellant.

    Court of Appeals

      No. 01-1966-CR.

      Submitted on briefs February 12, 2002.

      Decided May 30, 2002.

    2002 WI App 148
    (Also reported in 648 N.W.2d 34.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Kenneth P. Casey, assistant state public defender, Jefferson.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Susan J. Sommer, assistant attorney general, Mary E. Burke, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, EJ., Dykman and Deininger, JJ.

       Petition to review denied 9-26-02.

   DEININGER, J.

¶ 1. Trevor McKee was previously convicted of aggravated battery and first-degree reckless injury for inflicting severe injuries during a physical assault. The victim remained in a coma and died four years later, and the State commenced this homicide prosecution. McKee appeals an order which denied his motion to dismiss the pending prosecution on statutory double jeopardy grounds.

¶ 2. McKee claims the trial court erred in concluding that Wis. Stat. § 939.71 (1999-2000) does not bar the State from now prosecuting him for first-degree intentional homicide for the same act which led to his previous convictions. We conclude the language of the statute is ambiguous regarding whether it bars a subsequent prosecution for an offense that could not have been charged at the time of the first prosecution. We also conclude, however, that the legislature did not intend the statute to have that effect. Accordingly, we affirm the appealed order.

BACKGROUND

¶ 3. On September 21, 1995, McKee struck and repeatedly kicked another man in the head and left him lying in a Fort Atkinson street. He pled no contest and was convicted that same year of aggravated battery and first-degree reckless injury, both as a repeater, for the assault. The victim remained in a coma until he died in 1999. The State then charged McKee with first-degree intentional homicide, alleging that McKee's actions on September 21, 1995, caused the victim's death.

¶ 4. McKee moved to bar the State from continuing the homicide prosecution, citing Wis. Stat. § 939.71:

If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.

The trial court denied the motion concluding that, because McKee's acts on September 21, 1995, did not form the basis for a "crime punishable" under the homicide statute until the victim died in 1999, the present prosecution was not barred under § 939.71. We granted McKee leave to appeal the nonfinal order denying his motion. See Wis. Stat. § 808.03(2).

ANALYSIS

¶ 5. First-degree intentional homicide has two elements: (1) causing the death of another human being, (2) with the intent to kill that person. McKee argues that each of his 1995 convictions is for a crime not requiring proof of a fact that does not need to be proven to convict him of the homicide. Put another way, McKee contends that aggravated battery and first-degree reckless injury are each lesser-included offenses of first-degree intentional homicide. The State does not take issue with this contention, effectively conceding that McKee could not have been convicted of both homicide and either of the 1995 offenses in a single prosecution. See Wis. Stat. § 939.66(1). We will therefore assume, without deciding, that each of McKee's 1995 convictions is for a "crime which does not require proof of any fact in addition to those which must be proved for the crime charged." Id.

¶ 6. We also note as a preliminary matter that McKee does not claim that the instant prosecution violates his constitutional right to not "be put twice in jeopardy of punishment" "for the same offense." Wis. Const, art. 1, § 8(1); see also U.S. Const, amend. V The Supreme Court decided almost a century ago that the prohibition against double jeopardy does not bar a prosecution for murder when the victim of an "assault and battery" dies after a defendant has been convicted of the lesser offense. Diaz v. United States, 223 U.S. 442 (1912). The Court explained:

The homicide charged against the accused ... and the assault and battery for which he was tried .. . although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.

Id. at 448-49 (citation omitted). What has come to be known as the "necessary facts" exception has continuing validity in constitutional double jeopardy analysis. See Mitchell v. Cody, 783 F.2d 669, 671 (6th Cir. 1986) (noting that a "prosecution for the greater offense is allowed, 'when an element of the greater offense has not occurred at the time of the prosecution for the lesser offense1" (citation omitted)).

¶ 7. The present appeal, therefore, involves a question of statutory interpretation, not one of constitutional analysis. McKee argues that the plain language of Wis. Stat. § 939.71 bars his prosecution for homicide because (1) both that crime and the ones of which he stands convicted are crimes "punishable under more than one statutory provision of this state"; (2) both are based on the same 1995 act of battery; and (3) his previous convictions are for crimes not requiring "proof of a fact for conviction" beyond what homicide requires. According to McKee, the trial court erred by "grafting" an unexpressed "temporal limitation" into an unambiguous statute. That is, McKee maintains that nothing in the language of § 939.71 suggests that a crime is "punishable" for purposes of the statute only when all facts necessary for its prosecution exist at the time of a first prosecution based on the same act, as the trial court concluded.

¶ 8. McKee is correct in asserting that our first inquiry must be whether Wis. Stat. § 939.71 is ambiguous, and if it is not, we are to apply its "plain language" to the facts at hand. See State v. Peterson, 2001 WI App 220, ¶ 13, 247 Wis. 2d 871, 634 N.W.2d 893. We agree with the State, however, that § 939.71 is ambiguous. Whether a statute is ambiguous is a question of law. Id. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different ways. Id.

¶ 9. McKee's proffered interpretation is reasonable, but so is the trial court's interpretation that the legislature did not intend in Wis. Stat. § 939.71 to bar a subsequent prosecution for a crime that was not "punishable" at the time of the initial prosecution because a fact necessary for conviction on the later charged offense had not yet occurred. A statute may be plain and unambiguous when applied to one set of facts but yield an ambiguity when applied to another. Id. at ¶ 20. Here, the statute does not specify whether a crime is to be deemed a "crime punishable" for purposes of the bar when the facts necessary for its prosecution are not in existence at the time of an initial prosecution. In other words, as applied to the present facts, adopting McKee's interpretation would also involve "grafting" language into § 939.71 that is not there — a phrase providing that a crime is "punishable" for purposes of the statute regardless of when facts necessary for its prosecution come into existence.

¶ 10. We thus conclude that the language of Wis. Stat. § 939.71 is ambiguous because it does not plainly express the legislature's intent regarding its application when facts necessary for the prosecution of a given crime do not come into existence until after a defendant has been convicted of another crime for the same act. Because the statute is ambiguous, we must attempt to ascertain the legislature's intent from extrinsic sources, such as the statute's scope, history, context, subject matter, and purpose. See id. at ¶ 13. In the paragraphs which follow, we consider the history, context and purpose of § 939.71 and conclude that the legislature did not intend to bar a subsequent prosecution in circumstances such as the one before us.

¶ 11. The supreme court has had occasion to review the legislative history of Wis. Stat. § 939.71:

The legislative history reveals that Wis. Stat. § 939.71, like Wis. Stat. § 939.66(1), was created as part of the comprehensive revision of the criminal code in 1955. Ch. 696, Laws of 1955. The Judiciary Committee Report on the Criminal Code comments on Wis. Stat. § 339.71, the precursor to § 939.71, as follows: "This section is designed to prevent harassing the defendant with subsequent prosecutions for the same crime whether the former conviction or acquittal occurred in this state, in another state or country, or under federal or military law." The comment further provides that "the prohibition against subsequent prosecutions applies only if both prosecutions are based upon the same conduct and are for the same crime. In determining whether two crimes are the same, the test is: Does each require proof of a fact for conviction which the other does not require?"

State v. Vassos, 218 Wis. 2d 330, ¶ 17, 579 N.W.2d 35 (1998) (citing Wisconsin Legislative Council, V Judiciary Committee Report on the Criminal Code (Feb. 1953), at 55) ("1953 Committee Report"). The State directs our attention to the next paragraph of the report cited by the court in Vassos:

This section [predecessor of Wis. Stat. § 939.71] does not purport to codify all aspects of the difficult field of law known as "double jeopardy" or "former jeopardy", and the constitution and cases interpreting it must be referred to for many of the rules.

1953 Committee Report at 55.

¶ 12. We conclude that the comments in the 1953 Committee Report support the State's contention that, in enacting Wis. Stat. § 939.71, the legislature intended to incorporate general principles of the law of double jeopardy as then established. Those general principles would therefore include the "necessary facts" exception established in Diaz, which we have described above. See State v. Gordon, 111 Wis. 2d 133, 145, 330 N.W.2d 564 (1983) ("The legislature is presumed to act with full knowledge of existing laws and judicial interpretations of them.").

¶ 13. Another way to ascertain the legislative intent underlying an ambiguous statute is to examine related statutes to see if they shed light on the legislature's intended application of the statute under examination. See Edelman v. State, 62 Wis. 2d 613, 619, 215 N.W.2d 386 (1974) ("[I]n the determination of legislative intent when there are several statutes relating to the same subject matter they should be read together and harmonized, if possible."). McKee argues that Wis. Stat. § 939.66(1) supports his interpretation of Wis. Stat. § 939.71 and conflicts with the State's proffered interpretation. We disagree.

¶ 14. Wisconsin Stat. § 939.66(1), which was also enacted with the 1955 criminal code revisions, provides:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, hut not both. An included crime may he any of the following:
(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.

In McKee's view, in order to harmonize Wis. Stat. § 939.66 with Wis. Stat. § 939.71, the latter statute must be interpreted to preclude the present homicide prosecution because he has already been convicted of "included crimes." According to McKee it would make little sense for the legislature to prohibit the State from obtaining a conviction on both greater and lesser-included crimes in a single prosecution, while allowing it to do so "by the simple device of postponing prosecution on the greater offense until after a conviction had been obtained on the lesser."

¶ 15. We reject McKee's argument because, first, as the supreme court noted in Gordon, "[Wis. Stat. §] 939.66 applies to a single prosecution involving multiple counts," 111 Wis. 2d at 141 (emphasis added), not to serial prosecutions. Moreover, in concluding in Vassos that Wis. Stat. § 939.66(2m) "does not apply to a prosecution following an acquittal of a battery crime," the court again turned to the 1953 Legislative Committee Report and determined that the purpose of § 939.66 was to give the State flexibility in the bringing of charges in a single prosecution:

Wisconsin Stat. § 939.66 can be traced to the comprehensive revision of the criminal code in ch. 696, Laws of 1955. The comment to § 339.66 (the precursor of § 939.66) in the Judiciary Committee Report on the Criminal Code states that "this section permits conviction of a crime included within the crime charged and states what crimes are included crimes. The reason behind the rule of this section is the state's difficulty in determining before a trial exactly what crime or degree of the crime it will be able upon the trial to prove beyond a reasonable doubt."

Vassos, 218 Wis. 2d at ¶ 15 (emphasis added) (footnote omitted).

¶ 16. We acknowledge, as McKee points out, that the supreme court expressly left open in Vassos whether Wis. Stat. § 939.66 would apply to "a successive prosecution after a conviction of an included offense," which is the question now before us. Id. at ¶ 15 n.10. Given the supreme court's discussions of §§ 939.66 and 939.71 and their legislative history in Gordon and Vassos, however, we conclude that there is no reason to read either statute as prohibiting a successive prosecution for a greater crime when a fact necessary to conviction on the greater crime does not come into existence until after a defendant has been convicted of a lesser crime based on the same act.

¶ 17. We next consider the purpose of Wis. Stat. § 939.71 to see if it assists us in determining what the legislature intended when enacting it. McKee claims that we must adopt his interpretation of § 939.71 in order to accomplish the legislative purpose of preventing prosecutors from circumventing the prohibition against multiple convictions under Wis. Stat. § 939.66(1) by simply "postponing prosecution on the greater offense until after a conviction had been obtained on the lesser." We agree that Wis. Stat. § 939.71 is designed to prevent precisely that type of harassing conduct by a prosecutor. See Vassos, 218 Wis. 2d at ¶ 17. The "necessary facts" exception, however, does not undermine the statute's protections. Before a prosecutor can bring a new charge following a conviction for an included crime, a new and necessary fact must intervene, one that was not in existence at the time of the first conviction. Thus, under the interpretation we adopt, a prosecutor may not simply postpone a prosecution to circumvent Wis. Stat. § 939.66.

¶ 18. Furthermore, "absent 'governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect,' the compelling public interest in punishing crimes can outweigh the interest of the defendant in having his culpability conclusively resolved in one proceeding." Garrett v. United States, 471 U.S. 773, 795-96 (1985) (O'Connor, J., concurring) (citations omitted). We conclude that the State should not be forced to choose between immediately prosecuting a provable assaultive crime, thereby foregoing a potential homicide charge which future events might warrant, or releasing a potentially dangerous individual while awaiting the possible death of his victim. Such an interpretation of Wis. Stat. § 939.71 would comport with neither common sense nor good public policy. See State v. Kurzawa, 180 Wis. 2d 502, 533, 509 N.W.2d 712 (1994) (Abrahamson, J., concurring) ("Requiring join-der of all charges and prohibiting all serial proceedings does not make sense under all circumstances. For example, under certain circumstances the prosecution should not have to forego more serious charges when less serious charges were initially prosecuted.").

¶ 19. Finally, McKee suggests that even if the present prosecution is not barred under Wis. Stat. § 939.71, the State may not multiply convict and punish him for homicide and two lesser-included offenses, because to do so would clearly contravene the legislative intent expressed in Wis. Stat. § 939.66. He is presently serving a twenty-four-year sentence for his previous convictions, and if convicted of first-degree intentional homicide in the present prosecution, he faces an additional mandatory life prison sentence. See Wis. Stat. § 939.50(3)(a). McKee contends that there is no mechanism in Wisconsin law for vacating his prior convictions over his objection, and thus a guilty verdict in this case will place the circuit court in a quandary as to how to proceed.

¶ 20. We observe first that the precise issue raised by McKee's final argument is arguably not before us because he has neither been convicted nor punished for first-degree intentional homicide. Nonetheless, we agree that it would serve little purpose for us to remand for further proceedings on the homicide charge if we were convinced that the State could not convict and punish McKee for a homicide. We are not so convinced, however.

¶ 21. McKee correctly characterizes the legislative intent behind Wxs. Stat. § 939.66, which was "apparently adopted... because the penalty set by the legislature for the greater offense takes into account the fact that the defendant has also committed a lesser-included offense." Gordon, 111 Wis. 2d at 141 (citation omitted). We note again, however, that § 939.66 on its face applies to multiple convictions in a single prosecution, not to multiple convictions arising from sequential prosecutions. See id. Moreover, it appears that the "necessary facts" exception may be equally applicable to both the successive prosecution and multiple punishment aspects of double jeopardy analysis. See Brown v. Ohio, 432 U.S. 161, 169 & n.7 (1977). In short, we are satisfied that there is no reason for-the present prosecution not to continue. Should McKee be convicted of the homicide, both he and the State will have the opportunity to inform the trial court of the limitations, if any, they believe apply to the punishment which the court may then impose.

CONCLUSION

¶ 22. For the reasons discussed above, we affirm the appealed order and remand for further proceedings in the circuit court.

By the Court — Order affirmed and cause remanded.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Wisoonsin Stat. § 939.71 is quoted in the Background section of this opinion.

       WISCONSIN Stat. § 940.01(l)(a) provides in relevant part: "[WJhoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony."

       Wisconsin Stat. § 940.19(5) defines the crime of aggravated battery as causing "great bodily harm to another by an act done with intent to cause either substantial bodily harm or great bodily harm to that person." First-degree reckless injury is committed by one who "recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life." Wis. Stat. § 940.23(1). McKee argues that proof of causing a death necessarily proves the causation of "great bodily harm," and that the intent to kill a person encompasses both the intent to cause great bodily harm and criminal recklessness showing utter disregard for human life.

        But see State v. Wright, 196 Wis. 2d 149, 537 N.W.2d 134 (Ct. App. 1995) (defendant convicted of "first-degree intentional homicide and aggravated battery"; potential multiplicity issue neither raised nor decided).

       Wisconsin courts look to U.S. Supreme Court decisions for guidance when interpreting Wisconsin's double jeopardy prohibition. State v. Barthels, 174 Wis. 2d 173, 181, 495 N.W.2d 341 (1993).

       The State also notes that the 1953 Committee Report refers the reader to Comment, Double Jeopardy, 24 Minn. L. Rev. 522 (1940), as containing "one of the best discussions covering the whole field" of double jeopardy. The law review comment, in turn, discusses why "sound public policy requires that there be a second prosecution" when "the defendant has been prosecuted for an assault and subsequently the injured person dies under circumstances which occasion a charge of murder or manslaughter." 24 Minn. L. Rev. at 545-46.

         We also agree with the State that if Wis. Stat. § 939.66 has the effect McKee advocates, Wis. Stat. § 939.71 would be rendered largely superfluous.

       We do not address, because the parties have not, whether "the common law's ancient year and a day rule" has any bearing on McKee's prosecution. See United States v. Chase, 18 F.3d 1166, 1168-73 (4th Cir. 1994). The rule, which may have continuing vitality in federal murder prosecutions, id., "creates an irrebuttable presumption that after one year and one day from the infliction of an injury, the injury may not — as a matter of law — furnish the basis for a homicide prosecution." State v. Ruesga, 619 N.W.2d 377, 380 (Iowa 2000). "The great majority of states ... have abrogated the rule, judicially or legislatively." Id.


source: Caselaw Access Project

license: Public Domain

text:
    In re the Estate of Elva Felt, deceased: Juanita Randall, Appellant, v. Wayne Felt, Respondent.
    Court of Appeals

      No. 01-2597.

      Submitted on briefs March 4, 2002.

    Decided May 30, 2002.

    2002 WI App 157
    (Also reported in 647 N.W.2d 373.)

      On behalf of the appellant, the cause was submitted on the briefs of James B. Noble of James B. Noble, S.C., La Crosse.
    On behalf of the. respondent, the cause was submitted on the brief of Joseph G. Veenstra of Johns & Flaherty, S.C., La Crosse.
    Before Dykman, Roggensack, and Deininger, JJ.
   DEININGER, J.

¶ 1. Juanita Randall appeals an order entered in probate proceedings relating to her mother's estate. The respondent, Wayne Felt, who is Randall's brother, objected to the inventory Randall filed as personal representative of the estate. Randall claims the probate court erred in concluding that issue preclusion prevents her from asserting that two accounts she held jointly with her mother passed to her by right of survivorship, and in ordering that the accounts therefore be inventoried in the estate as property subject to administration. We agree with Randall that, because the issue was not "actually litigated" in the predecessor guardianship proceedings, she is not precluded from having the validity of the joint accounts litigated in the probate proceeding. Accordingly, although we affirm the appealed order, we remand for further proceedings on the status of the disputed accounts.

BACKGROUND

¶ 2. The deceased, Elva Felt, Randall's and Wayne Felt's mother, was under guardianship at the time of her death. No evidentiary proceedings were conducted in either the guardianship or the estate relating to the circumstances surrounding the establishment of the disputed accounts. The record does contain photocopies of two Account Agreements, which were apparently placed in the probate file at a hearing on September 19, 2001, but neither appears to have been formally admitted as evidence. The record also contains a transcript of an August 30, 2000 hearing on the appointment of a guardian of the estate for Elva Felt, and a copy of the final account in the guardianship, but no other documents from the guardianship file. Accordingly, much of our background summary is based on the assertions of counsel, made either in the briefs filed in this court or during oral argument in the probate court.

¶ 3. Randall was appointed guardian of Elva Felt's person in March 2000. At about this same time, a checking account that Elva held jointly with her husband and the parties' father, Lawrence Felt, was retitled to include Randall as a third joint tenant. A "Revised Signature Card" for this account, bearing the date March 8, 2000, has the following account option marked with an "x":

Joint Survivorship Account: THIS ACCOUNT ... IS JOINTLY OWNED BY THE PARTIES NAMED HEREON. UPON THE DEATH OF ANY OF THEM, OWNERSHIP PASSES TO THE SURVIVOR(S).

The document names Lawrence, Elva and Randall as "account owners" and appears to contain each of their signatures.

¶ 4. A second account, this one a "money market account," was apparently opened on March 24, 2000. The "Account Agreement" names Elva and Randall as owners, and it has the same joint survivorship option selected as quoted above for the checking account. This document, however, bears only Randall's signature, and it indicates an "initial deposit" of $145,485.73. The record contains no evidence regarding the source of the initial deposit into the money market account.

¶ 5. Lawrence Felt died on March 27, 2000. In August of that year, Wayne Felt petitioned the court to appoint a trust company guardian of Elva's estate, alleging that Elva had property requiring administration. Randall opposed the petition, arguing that other "arrangements... were made by the family" to meet Elva's needs following Lawrence's death. When the court inquired as to the nature of those arrangements, Randall's counsel replied, "[t]he joint tenancy on the bank accounts." Following a discussion among counsel for Randall and Wayne Felt, Elva's guardian ad litem, and the court, the court stated the following:

We have a situation where an individual who was found to be incompetent, whose finances prior — at that point were in joint tenancy with her husband who has since died. She now has an estate over whom nobody has management authority other than the guardian of the person, who has a conflict of interest in terms of being a joint tenant. I think certainly that there's an appearance of impropriety, and certainly she was not competent — Mrs. Felt was not competent at the time that she entered into that joint tenancy.

The court then found "that there is a need for a guardian of the estate, given the circumstances and certainly the questionable validity of the joint tenancies," and it appointed Randall to serve as guardian of her mother's estate.

¶ 6. Randall then filed a guardianship inventory which apparently included both of the disputed accounts. Elva Felt died on October 22, 2000, and Randall was appointed personal representative in accordance with Elva's will. In her capacity as guardian, Randall filed a final guardianship account showing a final asset balance of $254,480.40, of which some $151,420.53 was attributable to the two disputed accounts. Randall, in her individual capacity, filed a receipt in the guardianship for the latter sum as surviving joint tenant on the accounts, and the inventory she filed in the estate included only Elva's residence, valued at $83,100, and a $9,077 savings account. Wayne Felt objected to the inventory, claiming that the disputed accounts should be included as property subject to administration in the estate. He asserted that the court had previously ruled in the guardianship proceedings that Elva "was not competent to agree to the purported joint tenancy at the time it was created."

¶ 7. The probate court conducted a hearing on Wayne's objection to the inventory but took no testimony. The court ruled that "the guardianship precludes any additional argument in this court... about the competency of a ward to give joint tenancy in property .... That issue has been resolved." The court then ordered that "all of the moneys which were supposedly put into a joint account should be returned and inventoried in this estate." Before setting over the issue of whether Randall should continue as personal representative, the court also ruled that Wis. Stat. § 705.03(1) (1999-2000) did not apply, as Randall maintained, because Lawrence Felt had not removed the moneys from joint accounts and then established new ones.

¶ 8. The court subsequently entered an order removing Randall as personal representative. She appeals, challenging only the court's rulings regarding the joint accounts.

ANALYSIS

¶ 9. The doctrine of issue preclusion is "designed to limit the relitigation of issues that have been contested in a previous action between the same or different parties." Michelle T. v. Crozier, 173 Wis. 2d 681, 687, 495 N.W.2d 327 (1993). A threshold prerequisite for application of the doctrine, however, is that in order to be precluded from "relitigating" an issue, a party must have "actually litigated" it previously. Deminsky v. Arlington Plastics Mach., 2001 WI App 287, ¶ 39, 249 Wis. 2d 441, 638 N.W.2d 331, review granted, 2002 WI 23, 250 Wis. 2d 555, 643 N.W.2d 93. An issue is "actually litigated" when it is "properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined." Restatement (Second) of Judgments § 27 cmt. d (1980). We agree with Randall that that did not happen here.

¶ 10. As we have noted, no testimony was taken or evidence introduced during either the guardianship or estate proceedings. The only issue before the guardianship court on August 30, 2000, was whether a guardian of the estate should be appointed for Elva Felt. The establishment of the joint accounts was discussed among counsel and the court, but far from "determining" the status and validity of the accounts, the court simply relied on their existence as a factor in deciding that a guardian of the estate should be appointed. The court's comments suggest that it believed the status of the disputed accounts could be litigated at a later date if necessary, and that the appointment of Randall as guardian of the estate would facilitate the future resolution of the issue:

Obviously [Randall] would have an obligation at that point to file an inventory and an accounting....
Mr. [Wayne] Felt will have the opportunity, obviously, as an interested party to review the inventory that's compiled, the accountings that are filed on a regular basis and challenge those as being insufficient or untruthful.
I do find, as I certainly more than hinted, that there is a need for a guardian of the estate, given the circumstances and certainly the questionable validity of the joint tenancies.

(Emphasis added.)

¶ 11. The "questionable validity" of the joint accounts was not subsequently litigated in the guardianship, however, and Elva Felt died less than two months after Randall's appointment as guardian of her estate. Wayne suggests that because Randall included the two accounts in the guardianship inventory, she cannot now claim them to be joint survivorship accounts. The fact that the accounts were inventoried in the guardianship is not conclusive on the question of their ultimate disposition, however. Randall was obligated as Elva's guardian to inventory all of Elva's property, which included the joint accounts during Elva's lifetime. See Wis. Stat. §§ 880.18 and 858.01.

¶ 12. Whether the accounts on which Randall was named a joint tenant were validly created, and whether they passed to her on Elva's death, were thus first placed at issue when Wayne objected to the inventory Randall filed in the estate proceedings. We conclude that Randall is entitled to have those questions litigated in the estate, and that the trial court erred by not permitting her to do so.

¶ 13. Wayne implies, however, that there may be nothing to litigate. He contends that because the two joint accounts were established at a time when Elva was not competent, which Randall all but concedes, the joint tenancies created between Randall and her mother are invalid as a matter of law. We disagree. We note first that Elva's being placed under guardianship does not "in and of itself' prove that she lacked the capacity to make testamentary dispositions. Sorensen v. Ziemke, 87 Wis. 2d 339, 346, 274 N.W.2d 694 (1979).

¶ 14. Moreover, Elva's capacity to authorize the addition of Randall as a joint tenant would be controlling only if the accounts in question had originally been in Elva's sole name. That does not appear to be the case, however. Lawrence was living when the checking account was retitled and the money market account opened. He was a joint tenant on the former, and although the source of the funds deposited in the latter is not established in the record, Randall asserts that these funds also derived from assets in which Lawrence had an interest. Wisconsin Stat. § 705.03(1) provides in part as follows:

A joint account belongs, during the lifetime of all parties, to the parties without regard to the proportion of their respective contributions to the sums on deposit and without regard to the number of signatures required for payment. The application of any sum withdrawn from a joint account by a party thereto shall not be subject to inquiry by any person, including any other party to the account and notwithstanding such other party's minority or other disability ....

We agree with Randall that if the funds in the two disputed accounts derive from accounts on which Lawrence was a joint tenant, the fact that Elva was incompetent when Randall was added as a joint tenant does not necessarily render the new joint tenancies invalid.

¶ 15. The trial court concluded that Wis. Stat. § 705.03(1) was inapplicable because Lawrence did not withdraw funds from accounts he held jointly with Elva but simply added Randall as a third joint tenant on the accounts. That is apparently what occurred with the checking account on March 8, 2000. We conclude, however, that a "two-step" process is not necessary in order for § 705.03(1) to apply. Lawrence was empowered to withdraw the entire balance in the checking account without being "subject to inquiry" from Elva, "notwithstanding. . . [her] disability." Id.; see also Wachniak v. Frank, 140 Wis. 2d 429, 432, 410 N.W.2d 621 (Ct. App. 1987) ("The statute bars anyone . . . from looking into or questioning a party's application of sums withdrawn from the account during the lifetime of the joint parties."). If Lawrence could do that, we see no reason why the statute does not also permit Lawrence to add Randall as a third joint tenant on the account.

¶ 16. The foregoing analysis may or may not apply to the money market account. The money market account appears to have been newly established as of March 24, 2000, and as we have noted, the source of the $145,000 initial deposit is not disclosed in the record. Also, on this account, only Elva and Randall are named as joint owners, and only Randall's signature is shown on the "Account Agreement." It could be that Lawrence withdrew these funds from an account or accounts he held jointly with Elva and instructed Randall to establish the money market account in the fashion she did. If so, as we have discussed, Elva's incompetency would not have prevented Lawrence from doing so. Wis. Stat. § 705.03(1). On the other hand, if Randall establishes that the money market deposit derived from Lawrence's solely owned funds, § 705.03 would not be implicated.

¶ 17. Even if Randall establishes that Lawrence authorized her addition as a joint tenant on the disputed accounts, however, the inquiry into the validity of Randall's survivorship interest is not at an end. Wisconsin Stat. § 705.02(l)(a) provides that the "joint survivor-ship" language (quoted above at ¶ 3) that was selected on the "Account Agreements" for the two disputed accounts "shall be effective to create the multiple-party accounts described in this subchapter." Wisconsin Stat. § 705.04(1), in turn, provides the following:

Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence 'of a different intention at the time the account is created. If there are 2 or more surviving parties, their ownership interests during lifetime shall remain subject to s. 705.03(1); and the right of survivorship continues between the surviving parties.

(Emphasis added.) Thus, although the accounts presumptively passed to Randall as surviving joint tenant on Elva's death, Wayne may defeat the presumption by presenting clear and convincing evidence that Lawrence and Randall intended only to facilitate Randall's management of the accounts for Elva's benefit, not to create a survivorship interest in Randall. Pfeifer v. Pfeifer, 1 Wis. 2d 609, 612-13, 85 N.W.2d 370 (1957).

CONCLUSION

¶ 18. For the reasons discussed above, we remand to the circuit court for further proceedings on the issue of whether the accounts which Juanita Randall claims passed to her as surviving joint tenant are to be classified as her survivorship property or whether they must be included as property subject to administration in the Elva Felt Estate.

By the Court. — Order affirmed and cause remanded with directions.

       The only written order in the record relating to the proceedings which spawned this appeal was entered on September 24, 2001, and it deals exclusively with Randall's removal as personal representative and the appointment of a trust company in her stead. Randall does not challenge her removal as personal representative, and her notice of appeal recites that she is appealing "an Order made orally on September 19, 2001." Appeals from oral rulings are not permitted, however. See Ramsthal Adven Agency v. Energy Miser, Inc., 90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979). We thus deem Randall to have appealed the September 24th order, which brings before us all prior rulings adverse to her. See Wis. Stat. Rule 809.10(4). Because Randall does not seek relief from the express terms of the September 24th order, we affirm it but grant Randall the relief she requests, a trial on the issue of whether the disputed accounts passed to her as surviving joint tenant or must be inventoried in the estate.

       Circuit Court Judge Ramona Gonzalez presided over the estate proceedings and entered the appealed order. The earlier guardianship proceedings were before Judge Michael Mulroy.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Wisconsin Stat. § 705.03(1) is quoted below in the Analysis section of this opinion.

       "An issue may be submitted and determined on a motion to dismiss for failure to state a claim, a motion for judgment on the pleadings, a motion for summary judgment... a motion for directed verdict, or their equivalents, as well as on a judgment entered on a verdict." Restatement (Second) of Judgments § 27 cmt. d (1980).

       Elva's guardian ad litem asserted at the guardianship hearing that a bank she had contacted would not have permitted the addition of a third joint tenant without the consent of both original joint tenants. Regardless of what a bank may require as a matter of policy, however, we conclude that Lawrence could legally add Randall as a joint tenant without Elva's knowledge or consent pursuant to Wis. Stat. § 705.03(1).

       At the hearing before the probate court, Wayne's counsel produced a letter allegedly written by an attorney who formerly represented Randall. The letter apparently disavows an intent on Randall's part to have created joint survivorship accounts. The letter is not in the record.

        We also note that Randall concedes that if Wayne can establish by clear and convincing evidence that either (1) Lawrence was incompetent when he established the joint accounts with Randall, or (2) that she unduly influenced him to do so, Randall's survivorship interest may be defeated. In support of these propositions, Randall cites cases involving will contests. See Sorensen v. Ziemke, 87 Wis. 2d 339, 274 N.W.2d 694 (1979); Vickman v. Christensen, 6 Wis. 2d 48, 93 N.W.2d 873 (1959). We do not address in this opinion whether the concepts of testamentary capacity and undue influence apply equally to the execution of wills and the creation of joint survivorship accounts. We note only Randall's acknowledgement that these concepts may bear on the validity of her survivorship rights in the accounts. See, e.g., Neis v. Dithmar, 68 Wis. 2d 776, 780, 229 N.W.2d 573 (1975) (considering a claim that a deceased "lacked the necessary mental capacity" to establish a joint account).


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joseph A. Kayon, Defendant-Appellant.
    Court of Appeals

      No. 01-2365-CR.

      Submitted on briefs April 12, 2002.

    Decided May 29, 2002.

    2002 WI App 178
    (Also reported in 649 N.W.2d 334.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Ronald J. Sonderhouse of Kay & Kay Law Firm, Brookfield.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   ANDERSON, J.

¶ 1. Joseph A. Kayon appeals from an order denying his postconviction motion to modify restitution and the subsequent amended judgment of conviction. Kayon argues that the trial court erroneously exercised its discretion when ordering him to pay, as restitution, both rental and replacement fees for a television. Additionally, he argues that the record does not provide sufficient facts to determine if the rental fees were reasonable under all the circumstances. We conclude that a trial court may order, in addition to the replacement cost, the reasonable rental fees incurred by a victim as part of restitution. However, there Was an insufficient record developed as to the reasonableness of the rental fees; therefore, we reverse and remand the case for the limited purpose of determining the reasonable rental fees.

¶ 2. On October 16, 2000, Kayon was convicted of one count of party to a crime of burglary, pursuant to Wis. Stat. §§ 943.10(l)(a) and 939.05(2)(b) (1999-2000). During sentencing, the State requested $700 to replace a television set that was stolen, as well as an additional $1800 for television rental fees incurred by the victim while this case was pending. The trial court sentenced Kayon to fifteen months in prison with six years of extended supervision in addition to $700 for television replacement value and $1800 for television rental fees.

¶ 3. On May 8, 2001, Kayon filed a postconviction motion for sentence modification alleging that paying the replacement value and the rental fees would put the victim in a greater position than she was before the commission of the crime. During the postconviction hearing, the court continued the matter so that the State could determine whether written receipts could be provided by the victim to substantiate the losses.

¶ 4. On August 1, 2001, the continuation of Kayon's postconviction motion was heard. The receipt the prosecutor presented was from Rent-A-Center, showing that the victim's television rental costs were $1903.77. However, the receipt did not disclose what type of television was rented, an issue raised at the earlier postconviction hearing. The court concluded that the victim was allowed to be reimbursed for the replacement value as well as the rental value, which would remain at the amount of $1800. An order denying Kayon's postconviction motion was subsequently entered on August 13, 2001. Kayon appeals.

DISCUSSION

¶ 5. Whether a circuit court has authority to order restitution in the first instance, given a particular set of facts, is a question of law which we review de novo. State v. Walters, 224 Wis. 2d 897, 901, 591 N.W.2d 874 (Ct. App. 1999). When there is no dispute whether the sentencing court had authority to order restitution in the first instance, we review the restitution order's terms for an erroneous exercise of discretion. State v. Leighton, 2000 WI App 156, ¶ 54, 237 Wis. 2d 709, 616 N.W.2d 126, review denied, 2000 WI 102, 237 Wis. 2d 261, 618 N.W.2d 751 (Wis. Jul. 27, 2000) (No. 99-2614-CR).

¶ 6. A court may order any person convicted of a crime to pay restitution under Wis. Stat. § 973.20. Kayon does not dispute that the sentencing court had the authority to order restitution. However, Kayon does dispute the amount of restitution ordered; therefore, we review the restitution order's terms for an erroneous exercise of discretion. Leighton, 2000 WI App 156 at ¶ 54. Under § 973.20(2), if a crime resulted in damage or loss of property, the court may order a defendant to pay restitution for the item's reasonable repair or replacement cost. Kayon argues that the part of the court's order that called for restitution payment of $1800 in rental fees was clearly erroneous because the victim should have been limited to recovering only the replacement cost of the television. In the alternative, Kayon argues that if the order to pay the victim's rental fees was not error, then the amount of restitution representing rental fees was error. He argues that the amount of restitution representing rental fees should not have exceeded the amount of the replacement cost of the television, i.e., $700.

¶ 7. Wisconsin Stat. § 973.20(5) provides that as part of a restitution order, a court may require that the defendant pay all special damages substantiated by evidence in the record which could be recovered in a civil action against the defendant. Special damages can be described as representing the victim's actual pecuniary losses. State v. Stowers, 177 Wis. 2d 798, 804, 503 N.W.2d 8 (Ct. App. 1993).

¶ 8. Thus, the question becomes whether the victim's television rental costs qualify as special damages which could be recovered in a civil action against the defendant. It is undisputed that the victim had a "loss of use" of her television due to it being stolen by Kayon. Further, a "loss of use" is a damage which may be recovered in a civil action. In Nashban Barrel & Container Co. v. G.G. Parsons Trucking Co., 49 Wis. 2d 591, 601, 182 N.W.2d 448 (1971), the court allowed recovery for "loss of use" in addition to total damages, even when the property is irreparable. The court went on to say that the standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case. Id. The court explained that damages for "loss of use" should reflect (1) a time period reasonably required for replacement, including a reasonable time to determine whether the property is in fact repairable; and (2) an amount equal to that which was actually expended. Id. at 601-02. In Kim v. American Family Mutual Insurance Co., 176 Wis. 2d 890, 900, 501 N.W.2d 24 (1993), the court expanded the conclusion in Nashban to allow a claimant to recover "loss of use" damages even if a claimant does not procure replacement property.

¶ 9. Accordingly, we conclude in the case at bar that the victim's rental of a television is a "loss of use" damage that could be claimed in a civil action and therefore qualifies as a special damage. But our inquiry does not end here because, as Nashban teaches, a court must further determine whether the rental period was for a time reasonably required for replacement; this includes taking into account what a reasonable time would be to determine whether the stolen property is repairable. Nashban, 49 Wis. 2d at 601. On appeal, we cannot make this determination because the record provides insufficient facts to decide whether the "loss of use" amount awarded by the trial court was in fact reasonable.

¶ 10. While both parties acknowledge that the record is insufficient, each asks for a different remedy. Kayon argues that the part of the court's order that called for restitution payment of $1800 in rental fees was erroneous because the victim should have been limited to recovering only the replacement cost of the television. In the alternative, Kayon argues that if we hold rental fees to be a proper item of restitution then, due to the insufficient record, the rental fees should be limited to $700, the current value of the television. Kayon makes two points: (1) there was no evidence as to the make, model or size of the replacement television rented by the victim, only that it was a rather large television; and (2) the stolen television was recovered and although the front of the television was scratched, there were no estimates submitted on repairing the television.

¶ 11. The State argues that the victim's rental fees for the temporary replacement of her stolen and damaged television are a proper item of restitution in addition to the replacement cost. However, the State concedes that there are insufficient facts in the record to assess the reasonableness of the rental fees and requests that we remand this matter to determine the reasonableness of the victim's $1800 rental fees under all the circumstances.

¶ 12. Under the particular facts of this case, we agree with the State that remand for an evidentiary hearing is the proper remedy. On remand, it will be necessary to obtain the following information: (1) what size television was rented by the victim from Rent-A-Center; (2) what the monthly rental rate was from Rent-A-Center for the size television rented, and if the victim rented a television larger than the thirty-five inch television that was stolen, what was the rental rate for a thirty-five inch television; (3) when did the victim begin renting the television; (4) when did the victim stop renting the television; (5) when was the victim's stolen television returned; (6) whether the recovered television was repairable upon return; (7) how long it would have taken to determine if the television was repairable; (8) how long actual repair would have taken; and (9) the victim's financial circumstances at the time of rental in order to determine whether the victim was financially able to replace the television for $700, or whether the victim's financial options were limited to renting.

¶ 13. Finally, in order to assist the trial court, we note that according to Wis. Stat. § 973.20(13)(b), the district attorney had the primary responsibility for obtaining information relating to the amount of loss suffered by the victim during the initial sentencing hearing. This responsibility is placed on the district attorney because he or she is in the best position to elicit this information. However, for hearings held after sentencing, such as will be the case here, the burden of demonstrating loss by the preponderance of the evidence shifts to the victim, unless the court orders the district attorney to represent the victim.

¶ 14. Here, we believe it appropriate for the trial court to order the district attorney to represent the victim and thereby reinstate the responsibility to the district attorney of obtaining the information from the victim to substantiate the rental fees.

CONCLUSION

¶ 15. The trial court had the authority to order as restitution both the replacement cost and special damages for "loss of use" rental fees. However, remand is necessary in order to provide a substantiated record and determine actual loss. We remand for the limited purpose of determining the reasonable rental fees amount to be included in the special damages portion of the restitution order.

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

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

       Wisconsin Stat. § 973.20 provides in part:
      (lr) When imposing sentence or ordering probation for any crime for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record.

       WISCONSIN Stat. § 973.20(2) provides in part:
      If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:
      (a) Return the property to the owner or owner's designee; or
      (b) If return of the property under par. (a) is impossible, impractical or inadequate, pay the owner or owner's designee the reasonable repair or replacement cost....

       Wisconsin Stat. § 973.20(13) provides in part:
      (a) The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
      1. The amount of loss suffered by any victim as a result of a crime considered at sentencing.
      (b) The district attorney shall attempt to obtain from the victim prior to sentencing information pertaining to the factor specified in par. (a)l. Law enforcement agencies, the department of corrections and any agency providing services under ch. 950 shall extend full cooperation and assistance to the district attorney in discharging this responsibility. The department of justice shall provide technical assistance to district attorneys in this regard and develop model forms and procedures for collecting and documenting this information.

       Legislative Audit Bureau Report No. 85-10, April 15, 1985, at 14-18 provides in part:
      We identified several approaches which would help to eliminate duplication of effort and facilitate early determination and payment of restitution. The first of these is reliance, whenever possible, on district attorneys' offices for determination of victim loss. Before the case is heard in court, the district attorney is in contact with the victim to collect facts regarding the crime. The district attorney is, therefore, in the best position to ascertain the amount of loss involved in the crime. Collecting this information and presenting it to the court is consistent with the district attorney's responsibility to represent the victim, including seeking an order for restitution on behalf of the victim if probation is ordered. As we indicated when we reviewed the Division's Cashier's Unit operations in 1981 (#81-20), "we believe it is duplicative and wasteful for agents to perform work that could be more capably and efficiently done by district attorneys in the normal course of their work." Only in those instances when information about victim loss is not available to district attorney's offices early in the process, should it become necessary to shift responsibility for determination of loss to probation agents.

       Wisconsin Stat. § 973.20(14) states:
      At my hearing under sub. (13), all of the following apply:
      (a) The burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim. The district attorney is not required to represent my victim unless the hearing is held at or prior to the sentencing proceeding or the court so orders.
      (b) The burden of demonstrating, by the prepondermce of the evidence, the financial resources of the defendmt, the present md future earning ability of the defendmt and the needs md earning ability of the defendant's dependents is on the defendmt. The defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated. The office of the state public defender is not required to represent any indigent defendant unless the hearing is held at or prior to the sentencing proceeding, the defendant is incarcerated when the hearing is held or the court so orders.
      (c) The burden of demonstrating, by the preponderance of the evidence, such other matters as the court deems appropriate is on the party designated by the court, as justice requires.
      (d) All parties interested in the matter shall have an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties. The court, .arbitrator or referee shall conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person or to admissibility under s. 901.05. Discovery is not available except for good cause shown. If the defendant is incarcerated, he or she may participate by telephone under s. 807.13 unless the court issues a writ or subpoena compelling the defendant to appear in person.


author: SCHUDSON, J.

text:
    Rashid A. Osman, Plaintiff-Respondent, v. Allen R. Phipps, Defendant, Enterprise Rent-A-Car Company a/k/a Enterprise Rent-A-Car Co., Inc., Defendant-Appellant.
    Court of Appeals

      No. 01-1248.

      Submitted on briefs March 28, 2002.

    Decided June 4, 2002.

    2002 WI App 170
    (Also reported in 649 N.W.2d 701.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jeffrey T Nichols of Crivello, Carlson, Mentkowski & Sleeves, S.C., of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Allen Silverstein of Law Offices of Allen Silverstein, of Milwaukee.
    Before Fine, Schudson and Curley, JJ.
   SCHUDSON, J.

¶ 1. Enterprise Rent-A-Car Company appeals from the circuit court order awarding Rashid A. Osman double costs of $1,477.10, interest of $1,833.56, and attorney's fees of $19,500.00. Enterprise argues that the circuit court erred in awarding: (1) interest and double costs under Wis. Stat. § 807.01; and (2) actual attorney fees under Wis. Stat. § 814.025 and Wis. Stat. § 802.05. We agree and, therefore, reverse.

I. BACKGROUND

¶ 2. On October 10,1994, Osman was injured in a car accident and, on September 22, 1997, he commenced the underlying action. Even before the instant appeal, the case traveled a long road leading to this court's reversal of the summary judgment the circuit court had granted Enterprise. In our decision, we summarized the factual background:

The facts are not in dispute. Osman, a Canadian citizen, was seriously injured when a car he was driving was struck by a car driven by Allen Phipps. Osman's car was rented from Hertz and was insured by Zurich Insurance Company. Phipps's car was rented from Enterprise and was self-insured by Enterprise for $25,000, the minimum required by §§ 344.51(1) and 344.01(2)(d), Stats.[, 1995-96.]
Osman received some compensation for his damages under Ontario's No Fault Insurance Law. He received $32,000 Canadian dollars from Zurich Insurance Company and Zurich paid some of his medical expenses. He also received some free medical treatment under Ontario's Health Insurance Plan. He incurred other medical expenses that were not paid and he received no compensation for pain and suffering.
Osman brought this action against Enterprise pursuant to § 344.51(1), Stats., seeking damages for pain, ■ suffering, disability, loss of livelihood and medical costs.

Osman v. Enter. Rent-A-Car Co., No. 98-2930-FT, unpublished slip op. at 2-3 (Wis. Ct. App. July 20, 1999). We concluded that although Osman, under the Ontario insurance programs, had recovered more than $25,000 — the statutory liability limit under §§ 344.51(1) and 344.01(2)(d) for bodily injury to one person in any one accident — he still could pursue additional compensation from Enterprise given his allegation that the amount he had received had not fully covered his damages. Id. at 3-4.

¶ 3. Before the circuit court granted summary judgment to Enterprise, Osman offered to settle with Enterprise for $16,900, including costs. After this court reversed the summary judgment and remanded the case to the circuit court, Enterprise offered to settle for $15,000. Prior to the mediation that followed, Enterprise increased its offer to $25,000. Nevertheless, the parties were unable to resolve their dispute. Then, at mediation, although Osman offered to settle for $29,000, including costs of $4000, and Enterprise offered $27,000, including costs of $2000, the parties still could not reach an agreement.

¶ 4. Following mediation, Enterprise's attorney, in a letter to Osman's attorney, again offered Osman $25,000, stating: "If you are willing to accept the $25,000 without additional motions, please contact me and I will have my client submit the check to your trust fund. If you are not willing to accept the $25,000,1 will tender the amount to the court." Osman rejected the offer and Enterprise filed a motion to tender the $25,000 to the circuit court. Osman then moved for costs, attorney's fees, and interest.

¶ 5. At the September 5, 2000 status conference, counsel for Osman requested that the money be deposited directly to his trust account and that an order be issued providing that if the $25,000 were not paid by September 19, 2000, a judgment against Enterprise would be entered for that amount. Accordingly, the court entered an order providing, in part:

1. That the Defendant, Enterprise Rent-A-Car Company will pay Twenty Five Thousand Dollars ($25,000.00) to the Plaintiff on or before September 19, 2000; said payment is to be made in the form of a check to the trust account of Atty. Allen Silverstein.
2. That if the Defendant, Enterprise Rent-A-Car Company, fails to make payment as provided in paragraph 1, then, in that event, a judgement will be entered in favor of the Plaintiff and against the Defendant, Enterprise Rent-A-Car Company, in the amount of Twenty Five Thousand Dollars ($25,000.00).

(Footnote added.) The order also scheduled a hearing "on the issues of what costs the Plaintiff is entitled to, including but not limited to the issues of interest and double costs under [Wis. Stat. § 807.01], entitled Settlement Offers, and costs upon friv[o]lous claims and counterclaims under [Wis. Stat. § 814.025]." Enterprise complied with the order and paid the $25,000 by the September 19 deadline.

¶ 6. Following a hearing on Osman's motion for interest, costs, and attorney's fees, Osman's attorney submitted two proposed orders. Enterprise objected in a timely manner, but the circuit court had already signed the orders on March 20, 2001. One order required Enterprise to pay $8,060.66 in interest and double costs and $8,333.00 in attorney's fees; the other required Enterprise to pay an additional $11,167.00 in actual attorney's fees. The orders stated that if Enterprise failed to make the payments, judgment would be entered in favor of Osman and against Enterprise for those amounts. Enterprise moved for reconsideration in the circuit court and filed a notice of appeal in this court.

¶ 7. At a subsequent hearing, the circuit court, finding Enterprise's motion to be without merit, denied it but entered certain amendments: (1) "the court also relied upon 802.05 of the code in making its order and decision"; and (2) "for the period of time that the case was before the appellate courts, the court would not. . . allow the charging of interest." Following receipt of additional documentation from the parties, the circuit court then signed an order superceding the March 20, 2001 orders; it states that "the judgment in favor of... Osman and against... Enterprise ... shall be" $19,500.00 in attorney's fees, $1,833.56 in interest, and $1,477.10 in costs. Enterprise appeals from this September 28, 2001 order.

II. DISCUSSION

A. Interest and Double Costs

¶ 8. Enterprise first challenges the circuit court's award of interest, under Wis. Stat. § 807.01(4), and double costs, under § 807.01(3), on the $25,000. Enterprise argues that, as a matter of law, because no judgment was entered in this case, such awards were not proper. Enterprise is correct.

¶ 9. "Generally, [Wis. Stat.] § 807.01(3), together with § 807.01(4), provide that if a plaintiff recovers a judgment more favorable than a properly made offer of settlement which is not accepted within the prescribed time period, the plaintiff is entitled to double the amount of taxable costs and interest on the amount recovered from the date of the offer until the amount is paid." Ritt v. Dental Care Assocs., S.C., 199 Wis. 2d 48, 75, 543 N.W.2d 852 (Ct. App. 1995). Whether a party is entitled to interest and double costs requires application of these statutes and presents a question of law, which we review de novo. Briggs v. Farmers Ins. Exch., 2000 WI App 40, ¶ 14, 233 Wis. 2d 163, 607 N.W.2d 670.

¶ 10. Wisconsin Stat. § 807.01(3) (1999-2000) provides, in part: "If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs." (Emphasis added.) Wisconsin Stat. § 807.01(4) provides, in part:

If there is an offer of settlement by a party under this section which is not accepted and the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at the annual rate of 12% on the amount recovered from the date of the offer of settlement until the amount is paid.

(Emphasis added.) Enterprise argues that although its payment of $25,000 exceeded Osman's settlement offer, Osman never recovered a judgment and, therefore, the statutory interest and double costs could not be awarded. Enterprise is correct.

¶ 11. The September 26, 2000 circuit court document (providing that if Enterprise fails to pay the $25,000 by the September 19, 2000 deadline, a judgment "will be entered" in Osman's favor) is headed, "ORDER." This heading, however, does not control the categorization of the document as an "order" rather than a "judgment." That determination depends on the statutory definition of "judgment." See Booth v. Am. States Ins. Co., 199 Wis. 2d 465, 471, 544 N.W.2d 921 (Ct. App. 1996).

¶ 12. Wisconsin Stat. § 806.01(l)(a) provides: "A judgment is the determination of the action. It may be final or interlocutory." A final judgment "disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding." Wis. Stat. § 808.03(1). An interlocutory judgment disposes of all issues covered by a finding "substantially disposing of a claim on its merits, but leaving an account to be taken or a condition to be performed in order fully to determine the rights of the parties." Wis. Stat. § 806.01(2). Either a final or an interlocutory judgment requires that "a decision on the merits has been made." Shuput v. Lauer, 109 Wis. 2d 164, 170, 325 N.W.2d 321 (1982). In this case, because the circuit court did not make "a decision on the merits" after remand, see id., its September 26, 2000 document does not constitute a judgment, and the award of statutory interest and double costs, therefore, was in error.

B. Attorney fees

¶ 13. Enterprise next argues that the circuit court erred in awarding attorney's fees for its pursuit of what Osman deemed a frivolous defense under Wis. Stat. § 814.025. We agree.

¶ 14. Wisconsin Stat. § 814.025(1) provides that reasonable attorney fees shall be awarded to the successful plaintiff when a defendant commences or continues a defense that is found to be frivolous. Section 814.025(3)(b) provides that a defense is frivolous if "[t]he party or the party's attorney knew, or should have known, that the . . . defense .. . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law."

¶ 15. Further, Wis. Stat. § 814.025(4) provides that "[t]o the extent" that Wis. Stat. § 802.05 "is applicable and differs from" § 814.025, § 802.05 applies. Section 802.05(1) provides, in part, that reasonable attorney fees may be included in a sanction for a pleading, motion, or other paper that is "used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."

¶ 16. A finding of frivolousness under Wis. Stat. § 814.025(3)(b) "is based on an objective standard, requiring a determination of whether the party or attorney knew or should have known that the position taken was frivolous as determined by what a reasonable attorney would have known or should have known under the same or similar circumstances." Riley v. Lawson, 210 Wis. 2d 478, 491, 565 N.W.2d 266 (Ct. App. 1997). The determination of what a reasonable attorney knew or should have known presents a question of fact, and we will uphold the circuit court's determination unless it is clearly erroneous. Id. Whether what was known or should have been known supports a finding of frivolousness, however, presents a question of law subject to our de novo review. Id.

¶ 17. Enterprise argues that, for numerous reasons, its defense of this case cannot be considered frivolous. Enterprise points to many specific eviden-tiary factors and legal theories supporting its potential defenses to Osman's claim. Enterprise also emphasizes that, at most, the time during which it allegedly pursued a frivolous defense was limited to the approximate six-month period between remand, which followed the supreme court's denial of its petition for review, and its offer to settle the case for $15,000. And Enterprise notes that, even during this period, it was continuing to investigate — trying to locate Phipps to learn his version of the accident, and trying to obtain information about Osman's circumstances and claim for loss of wages and earning capacity.

¶ 18. On appeal, Osman offers little argument in response to Enterprise's contentions. While he maintains that "[i]t is clear" that counsel for Enterprise "obviously knew, and if not, certainly should have known, that there was no reason for them to pursue this outrageous defense" regarding Phipps' negligence, Osman offers nothing to suggest that it is ever unreasonable for an insurer to try to locate a co-defendant driver in order to investigate the circumstances of an accident. See Wis. Stat. Rule 809.19(l)(e) & (3)(a) (appellate arguments must be supported by authority).

¶ 19. Moreover, Osman offers no argument countering any of Enterprise's other assertions. He does not even respond to, Enterprise's substantial argument that, even assuming frivolousness, the attorney's fees of $19,500 were not supported by adequate documentation and, indeed, have little relation to the actual legal efforts in this case. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments deemed admitted).

¶ 20. Finally, searching for clarity in the circuit court hearings on interest, costs, and attorney fees, we see a hazy record. See ¶ 14 n.9, above. In those hearings, neither Osman nor the court specifically identified what, exactly, Enterprise's counsel knew or should have known about its possible defenses that "was without any reasonable basis in law or equity and could not be supported by a good faith argument," see Wis. Stat. § 814.025(3)(b), or what defense Enterprise's counsel pursued "for any improper purpose," see Wis. Stat. § 802.05(1).

By the Court. — Order reversed.

       In our 1999 decision, we mistakenly utilized the 1995-96 version of Wis. Stat. § 344.51 rather than the 1993-94 version, which, because it was in effect at the time of the rental agreement, applied to the facts of this case. Although, typically, "a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal," see Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), we will not perpetuate our mistake here.
      Wisconsin Stat. § 344.51 (1993-94) provided, in relevant part:
      Financial responsibility for domestic rented vehicles. (1) No person may for compensation rent any motor vehicle to be operated by or with the consent of the person renting the vehicle unless there is filed with the department [of transportation] a good and sufficient bond or policy of insurance issued by an insurer authorized to do an automobile liability insurance or surety business in this state. The bond, policy or certificate shall provide that the insurer which issued it will be liable for damages caused by the negligent operation of the motor vehicle in the amounts set forth in s. 344.01(2)(d).
      WISCONSIN Stat. § 344.01(2)(d) (1993-94) provided, in relevant part:
      "Proof of financial responsibility"... means proof of ability to respond in damages for liability on account of accidents occurring subsequent to the effective date of such proof, arising out of the .. . use of a motor vehicle in the amount of $25,000 because of bodily injury to or death of one person in any one accident....

       See text for footnote 2 on page 594.

        Additionally, we note that our 1999 decision's characterization of $25,000 as the "minimum liability limit" under Wis. Stat. §§ 344.51(1) and 344.01(2)(d), see Osman v. Enter. Rent-A-Car Co., No. 98-2930-FT, unpublished slip op. at 2-3 (Wis. Ct. App. July 20, 1999), was inconsistent with our earlier decision in Boatright v. Spiewak, 214 Wis. 2d 507, 570 N.W.2d 897 (Ct. App. 1997), another case in which Enterprise was sued pursuant to § 344.51(1). In Boatright, the appellants had argued that
      2See text for footnote 2 on page 594. Enterprise's liability for damages to the Boatrights caused by Spiewak's negligent operation of a vehicle rented from Enterprise was unlimited because Wis. Stat. §§ 344.51 and 344.01(2)(d) (1993-94) set only minimum limits of liability, not máximums. Boatright, 214 Wis. 2d at 510-11. We explained:
      In the final analysis, § 344.01(2)(d), Stats., has nothing to do with minimum or maximum liability in the sense the appellants argued. Rather, it simply fixes the amount-of or proof of security that a person subject to ch. 344 is responsible for filing in order to comply with the financial responsibility law. Enterprise did not need to indicate its "limits of liability" on its application [for a certificate of self-insurance] because the unambiguous words of § 344.51(1), Stats., provide the amount necessary for Enterprise to comply with its obligation under that statute, "the amount(s) set forth in s. 344.01(2)(d)." That amount, $25,000, is not a minimum or maximum liability, but, in the latter statute's words, simply the amount of damages Enterprise has proven it can respond to.

        Boatright, 214 Wis. 2d at 517-18.
      2 On December 20, 1999, the Wisconsin Supreme Court denied Enterprise's petition for review of this court's decision reversing the summary judgment.

       The proceedings leading to this order were before Reserve Judge Raymond E. Gieringer. The order was entered on September 26, 2000, seven days after the September 19 deadline, and was signed by Judge Maxine A. White.

       The $1,477.10 award for costs actually represents double costs.

       "An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon." Wis. Stat. Rule 809.10(4) (1999-2000).

       Here, and throughout this opinion, in order to avoid the confusion engendered by many references in the case law, we write of "interest and double costs" rather than "double costs and interest." The costs alone, not the interest, are doubled.

       All references to the Wisconsin Statutes throughout the remainder of this opinion will refer to the 1999-2000 version unless otherwise indicated.

       WISCONSIN Stat. § 806.01(l)(b) provides that "[e]ach judgment shall specify the relief granted or other determination of the action, and the name and place of residence of each party to the action." WISCONSIN Stat. § 806.10(1), however, clarifies that if the judgment fails to state the place of residence of either the judgment debtor or the judgment creditor, the validity of the judgment is not affected by the absence of this information. Thus we reject Enterprise's argument that the September 26, 2000 document was not a "judgment" because of its failure to include the name and place of residence of each party.

       The record reflects considerable confusion over whether the circuit court actually found any basis for concluding that Enterprise pursued a frivolous defense. At the March 5, 2001 motion hearing, the court commented, in part:
      One, I find that — that I am seriously troubled by the amount of time and the response by the defense as to the need for that aggressive defense having some basis in trying to defend by seeking more creditable facts from Mr. Phipps or having the opportunity to further question [Osman] and his credibility on certain dollar amounts, that that aggressive defense I find to be unfounded. However, on the issue of [Enterprise's] pursuit of the legal matter of whether or not the [$]40,000 precluded the financial responsibility clause to come into play, I find that the court action in this case could not support in my judgment the conclusion that that was an unreasonable, overly aggressive defense especially given the fact that [Enterprise] prevailed at the Circuit Court level on the summary judgment related to that particular issue.
      In this particular case and on this record as it relates to that standard, I do find that the record does not support your conclusion in your memorandum, and it does not provide clear and uncontroverted facts that this was an aggressive legal defense that had no reasonable basis in law.
      Therefore, on the issue of frivolity and the assertion of that in support of attorney fees under that standard, the court would find that you have not supported that legal test, and therefore, your motion is denied.
      The court then went on to consider whether Wis. Stat. § 814.025 "provides any different relief on the issue of attorney fees." Osman's counsel then requested "actual attorney fees," and the court concluded that counsel was "entitled to reasonable attorneyG fees" resulting from Enterprise's "defense of this case under the guise of pursuing greater or more creditable facts," the "substantial delay caused by [Enterprise's] response to the offer to settle" in May 1998, and "the fact that the court had to finally under threat of judgment gain [Osman's] $25,000 in this case." The court then concluded that there was "strong support under Section 814.025 for [Osman's counsel's] claim for reasonable attorney fees," ordered that without further specification, and noted: "And what we need to do is figure out what that is. I'm not going to limit [Osman's counsel] to statutory fees. I think that would be unfair."
      On June 25, 2001, the court reviewed Enterprise's motion for reconsideration. After Enterprise argued against frivolous-defense attorney fees, counsel for Osman stated that the court "never ruled [Enterprise's] defense was frivolous" but only ordered "attorney fees that are reasonable." Enterprise replied that "the court should not award any attorney fees if [counsel for Osman] agrees that the court never found our defense was frivolous." The court, commenting that "judges do not like to use [the term "frivolous"] when ... weighing the conduct of lawyers personally in handling corporate affairs," elaborated that, under Wis. Stat. § 814.025, it was "appropriate to award attorney fees in a case of this type where the behavior and the handling of the case led to an exhausted [sic] delay in the manner that was described in the record of this case, and not based on any belief that the pursuit of evidence would result in anything that was also credible under the circumstances of this case." The court added:
      Under 814.025(4) of the code, it refers us to 802.05 which talks about the signing of pleadings, motions, and other papers and sanctions that could arise therefrom. The only thing that is missing from the [earlier hearing on Osman's counsel's motion for attorney fees] oral recitation is that this court adopted the rationale of 814.025, as it relates to . .. (4) [referring to Wis. Stat. § 802.05] for the finding that both attorney fees and under 807.01(3) and (4), double costs were also appropriate in this particular case.

        So that the amendment that I would malee of the findings and the order would be to add that the court also relied upon 802.05 of the code in making its order and decision in this case.


author: HOOVER, EJ.

text:
    Dorothy Caraher, as the Administrator of the Estate of Michael F. Caraher, deceased, and Dorothy Caraher and Francis Caraher, individually, Plaintiffs-Respondents, v. City of Menomonie, Defendant-Appellant, Brittany Court Apartments, Jean Anderson, W. Warren Barberg, Galen Scharer, L.J. Stucky, Lloyd Woller and Orwoll Anderson, as partners and Orwoll Anderson as General Partner, Brittany Court Partnership, a general partnership, Society Insurance, a Mutual Insurance Company, Dave Wagner d/b/a Wagner Property Management and WPM Liability Insurer, State Farm Fire & Casualty Company, John Does 1 through 10, John Does 11 through 20 and John Does 21 through 30, Defendants.
    Court of Appeals

      No. 01-2772.

      Submitted on briefs May 6, 2002.

    Decided June 4, 2002.

    2002 WI App 184
    (Also reported in 649 N.W.2d 344.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Lawrence M. Rocheford and Jessica E. Schwie and Jardine, Logan & O'Brien, RL.L.R, of St. Paul, MN.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Ronald S. Goldser and James R Watts and Zimmerman Reed, RL.L.R, of Minneapolis, MN.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   HOOVER, EJ.

¶ 1. The City of Menomonie appeals an order denying its motion for summary judgment in a wrongful death action brought by Dorothy Caraher, on her own behalf and as the administrator of the Estate of Michael E Caraher, and Francis Caraher (the Carahers). Michael fell to his death from a cement-encased pipe that is part of the City's sewer system. The Carahers argue that the sewer pipe was commonly used as a footbridge and constituted a "known and present danger." They further contend that the City's failure to maintain or repair a fence that at one time was placed across the pipe was a ministerial action. The City argues that Wis. Stat. § 893.80(4), providing immunity from tort actions to governmental bodies for discretionary acts, bars the Carahers' claims. We agree with the City.

¶ 2. We conclude that the facts of this case are materially distinguishable from those in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), the case upon which the Carahers' "known and present danger" argument relies. Further, we conclude that the City's decision to erect a fence across the pipe and then not replace it after it was vandalized was discretionary. The Carahers' claims are thus barred because the City is entitled to governmental immunity under Wis. Stat. § 893.80(4). Accordingly, we reverse the order denying the City's motion and remand with directions for the trial court to enter summary judgment in favor of the City.

Background

¶ 3. In 1967, the City expanded its sanitary sewer system in the area known as South Broadway. The City engaged engineers who designed and submitted plans that provided for running a sewer pipe across Galloway Creek approximately eight feet above the waterbed. Specifically, the design plans called for a fifteen-inch sanitary sewer pipe supported by two precast concrete T-beams. The pipe was surrounded by felt paper, followed by a two-inch layer of Styrofoam for insulation. The pipe and insulation were encased in cement, which resulted in a cement structure about two feet, four inches in width. The design reduced the likelihood of the pipe freezing and protected the pipe.

¶ 4. The Wisconsin Division of Resource Development approved the plans for the sewer system in 1968. Once the design plans were approved, the City invited bids for construction services. The Committee on Public Works selected the lowest bidder to construct the sanitary sewer system, and the construction was substantially completed in 1968. The pipe has not been reconstructed since then. According to the city engineer, the design is adequate and additional reconstruction to run the pipe underground would be cost prohibitive.

¶ 5. The city land surrounding the pipe was conveyed to Brittany Court Apartments in 1988. In 1995, the owners of Brittany Court complained to the City that trespassers crossed their property to use the pipe as a footbridge to cross Galloway Creek. The City decided to purchase a fence to erect across the pipe in order to appease Brittany Court. The City hired Century Fence to do the work. Century recommended an eight-foot-high chain link fence and fan guard to he constructed on top of the pipe. The City adopted Century's suggestions because it represented the least costly method of deterring trespassers. Only days after the City erected the fence, trespassers tore it down. The City decided to save the taxpayers' money by not replacing the fence because vandals would likely destroy any fence erected over the pipe.

¶ 6. On July 25, 1999, Michael was walking to a friend's home after leaving a bar. In order to reach the friend's home, Michael and his friend had to cross Galloway Creek. Rather than following the public sidewalk that crossed the creek, they took a shortcut and used the pipe as a footbridge. Michael stepped off the cement-encased sewer pipe, struck his head, landed in the cement creek bed and drowned.

¶ 7. The Carahers filed a wrongful death and survivor action seeking monetary damages as a result of Michael's death. The City moved for summary judgment, arguing that it was immune from suit under Wis. Stat. § 893.80(4). The trial court denied the City's motion and thfe City now appeals.

Standards of Review

¶ 8. The review of a grant or denial of summary judgment is de novo, using the same methodology as the trial court. M & I First Nat'l Bank v. Episcopal Homes Mgmt., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995). Summary judgment is appropriate where, as here, the record demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). We will reverse a decision granting summary judgment if the trial court incorrectly decided legal issues or if material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993).

¶ 9. Whether a municipality is entitled to immunity is a question of law. Kierstyn v. Racine Unif. Sch. Dist., 228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999). Whether a municipality was engaging in discretionary or ministerial acts is also a question of law we review de novo. In re Cavanaugh v. Andrade, 202 Wis. 2d 290, 300, 550 N.W.2d 103 (1996).

Discussion

¶ 10. The City argues that Wis. Stat. § 893.80(4) bars the Carahers' claims against the City. The Cara-hers contend that (1) governmental immunity does not exculpate the City for creating or failing to address a "known and present danger"; and (2) the City's failure to maintain or repair the fence was a ministerial action and not entitled to immunity. We turn first to a discussion of governmental immunity as it applies to municipal sewer system implementations in general.

A. Governmental Immunity

¶ 11. Wisconsin Stat. § 893.80(4), protects municipalities from any "suit... brought against such corporation ... or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." "Quasi-judicial and quasi-legislative acts are synonymous with discretionary acts ...." Bauder v. Delavan-Darien Sch. Dist., 207 Wis. 2d 310, 313, 558 N.W.2d 881 (Ct. App. 1996). Conduct involving the municipality's discretion, such as the weighing of social, political and economic considerations, is protected by statutory government immunity. See id. at 314.

¶ 12. Governmental immunity for discretionary acts is based on the doctrine of separation of powers and the policy that the courts should not, through the medium of tort actions, second-guess certain policy-making activities that are legislative or executive in nature. Hillman v. Columbia Cty., 164 Wis. 2d 376, 397, 474 N.W.2d 913 (Ct. App. 1991). The design, approval and construction of a sewer system is a discretionary act entitling a municipality to immunity from any claim that challenges the design and construction of the sewer system. Anhalt v. Cities & Villages Mut. Ins. Co., 2001 WI App 271, ¶ 12, 249 Wis. 2d 62, 637 N.W.2d 422.

B. Known and Present Danger

¶ 13. Governmental immunity is qualified by several exceptions. The Carahers argue that the City is not immune because the pipe constituted a "known and present danger," which is an exception to Wis. Stat. § 893.80(4). See Cords, 80 Wis. 2d at 541. They contend that the pipe's use as a footbridge was so dangerous as to impose a ministerial duty to act. See id.

¶ 14. In Cords, our supreme court decided that where there was a known and present danger, a government official had a duty to take action, and the failure to do so was not protected by immunity. Id. There, a park manager had actual knowledge of a trail ending above a ninety-foot drop. Id. Although the park manager knew that this presented a hazard, especially at night, he did nothing to alleviate the dangerous condition. Id. The court decided, "Anderson knew the terrain at the glen was dangerous particularly at night; he was in a position as park manager to do something about it; he failed to do anything about it. He is liable for the breach of this duty." Id. Where the danger is obvious and the foreseeable result may be tragic, there is a ministerial duty to act. Id. at 541-42.

¶ 15. The present circumstances do not, however, present a Cords situation. There are two principal material distinctions between this case and Cords. In Cords, the public was invited to use the path in question. Id. at 531. Here, the pipe was not designed or intended to be used as a footbridge. The public was not invited to make such use of it. In fact, there was a sidewalk provided to cross the creek not far from the pipe. Also, in Cords, the court noted that the danger — a narrow undercut — was not readily discernable. Id. at 532. Here, using the sewer pipe for an unintended purpose presents an obvious danger. Nothing in Cords suggests that it imposes a ministerial duty on government to protect the public from every manifest danger.

¶ 16. In summary, the cement-encased sewer pipe was provided for sewer services, and the City did not intend it to be used as a footbridge. The City exercised its discretion in designing the sewer system, entitling it to immunity. See Anhalt, 2001 WI App 271 at ¶ 12. The pipe did not create a known and present danger. See Cords, 80 Wis. 2d at 541.

C. Ministerial Duty

¶ 17. The Carahers also contend that erecting and failing to replace the fence constituted maintenance of the sewer system. They argue that while sewer system design and construction is discretionary, Anhalt, 2001 WI App 271 at ¶ 12, sewer system maintenance is a ministerial act not protected by governmental immunity, citing Menick v. City of Menasha, 200 Wis. 2d 737, 745, 547 N.W.2d 778 (Ct. App. 1996). In Menick, this court held that maintaining a sewer system so as to not cause injury is a ministerial duty not entitled to governmental immunity. Id.

¶ 18. A city is immune from discretionary acts, but not from ministerial acts. Wis. Stat. § 893.80(4). A discretionary act is one that "involves the exercise of discretion of judgment in determining the policy to be carried out or the rule to be followed [and] the exercise of discretion and judgment in the application of a rule to specific facts." Spencer v. County of Brown, 215 Wis. 2d 641, 648, 573 N.W.2d 222 (Ct. App. 1997) (citation omitted). In contrast, a ministerial act is one that is "absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Lister v. Bd. of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976).

¶ 19. We reject the Carahers' contention that maintaining the fence so as not to cause injury was ministerial under Menick. See Menick, 200 Wis. 2d at 745. Once erected across the pipe, the fence did not become a part of the sewer pipe and thus part of the sewer system. The fence was not part of the design of the pipe and served no function in managing the City's sewage. We conclude that the decision to erect the fence was a discretionary decision made in response to a citizen's complaint. We further conclude that, in the absence of a Cords situation, the decision not to replace the fence is no less discretionary than the decision to erect it.

By the Court. — Order reversed and cause remanded with directions.

       WISCONSIN Stat. § 893.80(4) provides:
      No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi- legislative, judicial or quasi-judicial functions.
      All references to the Wisconsin Statutes are to the 1997-1998 version, unless otherwise noted.

       The Carahers also argue that in order for the City to create a "walkway" over Galloway Creek it was required but failed "to establish that it did the balancing or evaluation necessary to convert development of the sewer into a protected 'discretionary' act." However, the City did not create a walkway. It implemented a plan for expansion of the sewer system, and the design, approval and construction of a sewer system is a discretionary act entitling a municipality to immunity from any claim that challenges the design and construction of the sewer system. See Anhalt v. Cities & Villages Mut. Ins. Co., 2001 WI App. 271, ¶ 12, 249 Wis. 2d 62, 637 N.W.2d 422. The City therefore did not need to prove a balancing or evaluation process to make the implementation of the sewer system plans discretionary.

       The Carahers also make numerous subarguments that are unsupported* by the record, logic or law and that we address summarily. First, contrary to the Carahers' contention, the City did present evidence that the decision not to replace the fence was deliberate. Second, accepting the lowest bid for the construction of the pipe was not a ministerial act. Caraher points to no law requiring the City to accept the lowest bid. The City exercised its discretion to use the lowest bid as the dispositive criterion. Third, it is immaterial that there may be a question of fact as to whether the City was negligent. Governmental immunity assumes negligence. It is a defense that shields government from the consequences of negligent acts for which it might otherwise be responsible. Finally, whether the City failed to properly execute a ministerial duty is a question of law, not a question of fact. Kimps v. Hill, 187 Wis. 2d 508, 513, 523 N.W.2d 281 (Ct. App. 1994).

       Although there are several exceptions to the Wis. Stat. § 893.80(4) governmental immunity, the Carahers only argue that two of them apply to defeat the City's immunity. Other exceptions to governmental immunity not addressed here are (1) where conduct was malicious, willful and intentional, C.L. v. Olson, 143 Wis. 2d 701, 710-711, 422 N.W.2d 614 (1988), and (2) where the exercise of discretion was nongovernmental. See Scarpaci v. Milw. Cty., 96 Wis. 2d 663, 682-86, 292 N.W.2d 816 (1980).