author: WEDEMEYER, EJ.

text:
    In re the Paternity of Demetrius A.Y.: Shanee Y. and State of Wisconsin, Petitioners-Respondents, v. Ronnie J., Respondent-Appellant. [Case No. 03-1227.] In re the Paternity of Landon C.Y.: Shanee Y. and State of Wisconsin, Petitioners-Respondents, v. Ronnie J., Respondent-Appellant. [Case No. 03-1228.]
    Court of Appeals

      Nos. 03-1227, 03-1228.

      Submitted on briefs January 6, 2004.

      Decided February 24, 2004.

    2004 WI App 58
    (Also reported in 677 N.W.2d 684.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Hazel J. Washington of Washington Law Offices, Milwaukee.
    On behalf of the petitioners-respondents, the cause was submitted on the brief oí John Pintar of Milwaukee County Child Support Agency, Milwaukee.
    Guardian ad litem briefs were filed by William M. Binder oí Law Offices of William M. Binder, Milwaukee.

      Before Wedemeyer, EJ., Fine and Curley, JJ.
   WEDEMEYER, EJ.

¶ 1. Ronnie J. appeals from an order denying a motion to open judgments of paternity, which adjudicated him as the father of Landon C.Y. and Demetrius A.Y. He claims that the trial court erroneously exercised its discretion in denying his motion to open the judgments. Because no reasonable basis exists to deny the motion, we reverse and remand.

BACKGROUND

¶ 2. On December 8, 1992, paternity actions were filed naming Ronnie J. as the father of Shanee Y.'s childrenDemetrius, born December 5, 1986, and Landon, born February 14, 1988. At the time of the filing, Ronnie was incarcerated. He returned waivers of appearance, executed December 13, 1992, denying that he was the father of either child.

¶ 3. On January 12, 1993, the trial court ordered blood tests to be conducted on May 13, 1993, and adjourned the case to July 13,1993, for the test results. Neither Ronnie nor Shanee appeared for the blood tests or for the July 13 status hearing. The court ordered a warrant for Shanee's arrest. On August 25, 1994, Shanee appeared on the warrant and acknowledged by signature the trial court's blood test order, which directed all parties to be tested on September 19, 1994, and to appear in court for the results on January 13, 1995. Eersonal service was not obtained on Ronnie because he was incarcerated at the Milwaukee County House of Correction. Substituted service was effectuated upon his twelve-year-old sister on September 7, 1994. No one informed the court that Ronnie was imprisoned.

¶ 4. Shanee appeared on January 13, 1995. She and the children had been tested. Ronnie did not appear because he was incarcerated at the Kettle Moraine Correctional Facility. He had not complied with the blood test order. The trial court entered two default judgments of paternity against Ronnie. A copy of the judgments was mailed on May 4, 1995, to Ronnie's last known address430 West Burleigh Street, Milwaukee, Wisconsin. He was released from prison in 1997.

¶ 5. On September 25, 2000, Ronnie was arrested on a bench warrant for failure to pay child support as provided in the judgments of paternity. On December 4, 2000, Ronnie made his first pro se request to open the judgments of paternity and for a DNA paternity test. The basis for the motion was that he could not be the father because during the relevant periods for conception, he was incarcerated in the Oak Hill Institution. The motion was scheduled for April 5, 2001, but adjourned to May 22, 2001, and then again to June 13, 2001, due to the inability to notify Shanee. On June 13, 2001, Ronnie failed to appear because he was fulfilling an appointment with the Internal Revenue Service and forgot about the paternity court date. His motion was dismissed for failure to appear.

¶ 6. On June 14, 2001, Ronnie, pro se, filed a second motion to open the judgments and have paternity testing. The motion was heard on August 8, 2001. Ronnie appeared, but Shanee did not appear. The trial court denied the motion.

¶ 7. On May 22, 2002, Ronnie, by counsel, again moved to open the paternity judgments. The motion was based on Wis. Stat. § 806.07(l)(h) (2001-02), and alleged that fraud was committed upon the court by Shanee. On August 20, 2002, the court heard testimony and adjourned the matter to November 26, 2002, to review the transcript of the August 8, 2001 hearing in which Ronnie had appeared pro se. In the meantime, Ronnie had independent genetic testing performed prior to the November 26, 2002 hearing. The tests conclusively demonstrated that he could not be the father of either child. At the November 26, 2002 hearing, the court appointed a guardian ad litem for both children, and adjourned the matter to allow the guardian to investigate the matter.

¶ 8. At the February 11, 2003 hearing, the trial court heard testimony, including Shanee's admission that Ronnie was not the father; she testified that a man by the name of Virgil Davis was the children's biological father. She indicated she had initially named Ronnie as the father because she knew him and liked him. The trial court reviewed the report of the guardian ad litem, which recommended opening the action to establish correct paternity. After listening to final arguments from the parties, the trial court denied the motion to open on the grounds that Ronnie did not file his motion in a timely fashion and that it would be contrary to the children's best interests to vacate the paternity judgments. Ronnie now appeals.

ANALYSIS

¶ 9. The genesis of this appeal was a motion to open judgments filed pursuant to Wis. Stat. § 806.07(l)(h). This provision reads: "Relief from judgment or order. (1) On motion and upon such terms as are just, the court... may relieve a party or legal representative from a judgment, order or stipulation for the following reasons: ... (h) Any other reasons justifying relief from the operation of the judgment."

¶ 10. A trial court's order denying a motion for relief under Wis. Stat. § 806.07 will not be reversed on appeal unless there was an erroneous exercise of discretion. State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 541-42, 363 N.W.2d 419 (1985). We shall not find an erroneous exercise of discretion if the record shows that the trial court exercised its discretion and that there is a reasonable basis for the court's determination. Id. at 542. "The term 'discretion' contemplates a process of reasoning which depends on facts that are in the record or are reasonably derived by inference from the record and yields a conclusion based upon logic and founded upon proper legal standards." Id. The ultimate determination of reasonableness is a question of law. Kernz v. J.L. French Corp., 2003 WI App 140, ¶ 29, 266 Wis. 2d 124, 667 N.W.2d 751. We conclude that under the facts and circumstances presented in this matter, there is no reasonable basis to support the trial court's decision. Accordingly, we conclude for the reasons that follow, that the trial court erroneously exercised its discretion when it denied the motion to open the paternity judgments.

¶ 11. Although Wis. Stat. § 806.07(l)(h) is to be liberally construed to provide relief from a judgment whenever appropriate to accomplish justice, "it is appropriately used 'only when the circumstances are such that the sanctity of the final judgment is outweighed by the incessant command of the court's conscience that justice be done in light of all the facts.'" Mogged v. Mogged, 2000 WI App 39, ¶ 13, 233 Wis. 2d 90, 607 N.W.2d 662 (emphasis in original) (citations omitted). "Because subsection (h) invokes the sensibilities of the court, the court must consider a wide range of factors . . . ." State ex rel. M.L.B., 122 Wis. 2d at 552. In reviewing these factors, the court should consider

the following: whether the judgment was the result of the conscientious, deliberate and well-informed choice of the claimant; whether the claimant received the effective assistance of counsel; whether relief is sought from a judgment in which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; whether there is a meritorious defense to the claim; and whether there are intervening circumstances making it inequitable to grant relief.

Id. at 552-53.

¶ 12. Although it is not altogether clear, we deem that the basis for the trial court's denial of the motion to open the judgments of paternity is a combination of applying the "intervening circumstances" element of the Wis. Stat. § 806.07(1)(h) body of law and the "fairness/finality" concept embodied in res judicata principles. Assuming this conclusion to be correct, we commence our analysis.

¶ 13. The factual backdrop for this appeal is undisputed. Ronnie was served with two claims for paternity on December 12, 1992, while incarcerated at the Milwaukee County House of Correction. He executed and returned two waivers of appearance denying paternity. The trial court set January 13, 1995, as the date to produce the results of blood tests that were to have been obtained from the children and from Shanee and Ronnie. All, however, did not go as intended or anticipated. Ronnie was never personally served with the order for testing and appearance because he was incarcerated at the Milwaukee County House of Correction. Instead, substitute service was made upon his twelve-year-old sister. Although Shanee and the two children appeared for the January 13 hearing, Ronnie did not appear, nor was he tested.

¶ 14. According to the complaints, Shanee averred that she had sexual intercourse with Ronnie on two separate occasions within the conceptive period and engaged in no similar activity with anyone else during the same time frame. In order to receive aid, Shanee was required to assist in the State's attempt to determine paternity. Default judgments of paternity were entered against Ronnie at the January 13 hearing. After two pro se attempts to open the judgments of paternity failed, Ronnie, by counsel, filed a third motion and, with the assistance of Shanee, obtained DNA genetic testing of the two children. The results conclusively excluded Ronnie as the father of the children. Shanee admitted this to be true. In her own words, she named Ronnie as the father because she "had a big liking for him." Shanee, at this time, revealed that both pregnancies resulted from sexual assaults by the biological father, who was the boyfriend of Shanee's aunt. The trial court acknowledged the truth of the matter. It further determined that Ronnie was not the biological father of the children and had no historical relationship with them.

¶ 15. Thus, there was no longer any basis for inferring facts to support the default judgments of paternity. Consequently, there is no legal basis for imposing upon Ronnie the responsibility to support Demetrius and Landon. In succinct terms, facts no longer existed to warrant the judgments of paternity.

¶ 16. The guardian ad litem, in part, based his recommendations for reversal on the ground that denying the motion, in essence, would permit a judgment entered solely on perjured testimony to stand. He argues that it is incumbent on this court to declare with full force and authority that a trial court cannot suborn perjury. We agree with the guardian's moral convictions. Perjury must not be tolerated by courts of law. "[P]erjury erodes the integrity of our judicial system." State v. Canon, 2001 WI 11, ¶ 9, 241 Wis. 2d 164, 622 N.W.2d 270. It is imperative that "[ejffective restraints" exist to prevent perjury, which presents an "obvious and flagrant affront to the basic concepts of judicial proceedings." Id. (citation omitted). The integrity and respect of our court system, founded on the search for truth and the adherence to principles of fundamental fairness, depends upon circuit court judges, attorneys that practice before them, and witnesses in all matters to act with forthright conviction and a commitment to truthfulness. Permitting perjury to go unchecked results in a "war with justice, since it may produce a judgment not resting on truth." In re Michael, 326 U.S. 224, 227 (1945). That is exactly what resulted in this case — a judgment not resting on the truth.

¶ 17. Notwithstanding these fundamental deficiencies in the record, the State, relying upon principles contained in the doctrine of res judicata, argues that Ronnie was allowed a full opportunity to present evidence in support of his contention that he was not the father of the two children, and he simply failed to avail himself of that opportunity. Thus, the State asks us to let the judgments stand. Paraphrasing this same argument, the trial court, in its written decision, ruled that Ronnie "slept on his rights," and therefore was not entitled to relief. Nevertheless, all the parties, including the court, appeared to recognize that whether the circumstances of fairness outweighed the force and finality of the judgment was a discretionary determination.

¶ 18. The doctrine of res judicata, with its companion, collateral estoppel, are founded upon principles of fundamental fairness. Desotelle v. Continental Cas. Co., 136 Wis. 2d 13, 21, 400 N.W.2d 524 (Ct. App. 1986). These doctrines are designed to balance the need to bring litigation to a final conclusion, and every party's right to have a judicial determination made as to their contentions. Id. These doctrines, however, as this court has clearly declared in the past, should not be used "to deprive a party of the opportunity to have a full and fair determination of an issue." Marten Transp., Ltd. v. Rural Mut. Ins. Co., 198 Wis. 2d 738, 744, 543 N.W.2d 541 (Ct. App. 1995). Thus, if the record demonstrates that Ronnie never had an opportunity for a full and fair determination of the question of paternity, the doctrine of res judicata should not bar relief. From this review, it is easy to conclude that the competing interests of finality and fairness coalesce when considering the application of Wis. Stat. § 806.07(l)(h) and principles of res judicata.

¶ 19. From our review of the record, it is an understatement to say that Ronnie was a less than sophisticated pro se litigant when he filed his first and second motions to open the judgments of paternity. The affidavits he filed in those motions attest to that condition. To further corroborate this lack of sophistication, we have only to refer to his responses to the court's questions to Ronnie at the August 8, 2001 hearing about his four-year delay in attempting to open these judgments:

Because every time, like when I go to work or what not, and then I get stopped by the police officers, says you are being arrested for child support. I went to court at one point in year 2000, and I did appear, but the bailiff forgot to turn the paper in; so I got arrested again because he forgot to turn the paper in. I wanted to know— Because I was incarcerated, you know, I didn't have a chance to give a DNA, you know ....
... When I got out in '97, I was in the process of looking for work through temporary services and stuff like that. I didn't know nothing about filing motions and stuff until I started getting arrested. I mean— Then once I got the temporary services, I had to get bus passes, I had to eat, I had to pay for somewhere so I could sleep. I just couldn't afford it. I can't afford no kids no way, because they just not mine. I haven't seen them, never in my life, and then didn't even know where they were at.... I don't know even knows those people [sic].

From what has been recited in this opinion, it is obvious that through most of his travail, Ronnie was the victim of his own uninformed knowledge of the intricacies of the judicial system, receiving the assistance of counsel only in his third attempt to right the record. No judicial consideration of the merits has ever occurred. And now, all parties recognize that a meritorious defense exists to the two false claims of paternity. Based on the foregoing, we reject the State's argument that res judicata bars Ronnie's motion to open the judgments.

¶ 20. The State next claims that intervening circumstances cause finality to trump fairness. We reject this position as well. The imposition of the obligation to provide for the welfare of Demetrius and Landon is dependent upon establishing the factual responsibility of parenthood. To impose such an obligation short of a determination on the merits is flawed in both logic and the incessant command of the court's conscience that justice prevail. The State, in its rush to find a surrogate father for these children, which it per force of law has assumed in its role of "in loco parentis," relies upon a "best interests of the children" concept. That is all well and good, but its application presupposes a judgment of responsibility. Under the circumstances of this case, to conclude to the contrary would be to rely upon a tidy legal fiction as a substitute for substantive justice, a remedy that we cannot condone. Moreover, the "best interests" of the two now teenage boys involved in this paternity action are not served by allowing a judgment of paternity to stand against Ronnie — a man who the boys have never known, who has never played a role in their lives, and who the boys never believed to be their father.

¶ 21. Here, the merits of "intervening circumstances" to create a surrogate father do not rise to the level to trump the very essence of "fairness." Because a fundamental basis, i.e., a factual finding of responsibility, is lacking for these paternity judgments, there is no reasonable basis to support the trial court's exercise of discretion. For all of the preceding reasons, we reverse the order denying the motion to open and remand the matter to the trial court with directions to reverse the paternity judgments declaring Ronnie to be the father, and expunge them from the judgment roll.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       We note that despite the two specific denials of paternity, in Appeal # 03-1227, the default judgment roll incorrectly states that the judgment was entered upon admission of paternity. Such did not occur in Appeal # 03-1228.

       The judgments were obtained by default. No express findings of fact were ever made.

        Res judicata is the term formerly used to describe claim preclusion and collateral estoppel is the term formerly used to describe issue preclusion. See Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 549-50, 525 N.W.2d 723 (1995).


source: Caselaw Access Project

author: HOOVER, PJ.

license: Public Domain

text:
    Jessica Mayberry, Plaintiff-Appellant, v. Volkswagen of America, Inc., Defendant-Respondent.

    Court of Appeals

      No. 03-1621.

      Submitted on briefs December 15, 2003.

    Decided February 24, 2004.

    2004 WI App 64
    (Also reported in 678 N.W.2d 357.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Gregory H. Moss and Krohn & Moss, Ltd. of Chicago, IL.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Bruce D. Huihregtse, Drew J. Cochrane and Stafford Rosenbaum LLP of Madison.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 5-12-04.

   HOOVER, PJ.

¶ 1. Jessica Mayberry appeals a summary judgment dismissing her Magnuson-Moss Warranty Act claim, 15 U.S.C. §§ 2301-2312 (1975), against Volkswagen of America, Inc. The circuit court concluded that because Mayberry traded in her allegedly defective automobile for more than its fair market value, she suffered no damages and therefore could not sustain her claim. The court used an incorrect standard for measuring damages, and genuine issues of material fact exist precluding summary judgment. We therefore reverse and remand for further proceedings.

Background

¶ 2. On October 14, 2000, Mayberry purchased a new 2001 Volkswagen Jetta from Van Dyn Hoven Imports, LLC, in Appleton. According to the invoice, the price of the car was $18,175, but with "collateral charges, such as bank and finance charges, [the car] totaled more than $22,548.80." There is no dispute that the vehicle was covered by a two-year, 24,000-mile written warranty.

¶ 3. Shortly after taking possession of the vehicle, "numerous defects manifested." These defects included repeated illumination of the check engine light, excessive oil leakage and usage, and a broken armrest. Mayberry took the Jetta to Van Dyn Hoven for repairs. Van Dyn Hoven worked on the problems at no charge, although Mayberry complains the problems were not remedied.

¶ 4. Mayberry decided to revoke her acceptance of the vehicle, but Volkswagen refused her demand. Thus, in June 2002, Mayberry filed her complaint against Volkswagen, alleging (1) Volkswagen breached its written warranty under the Act; (2) Volkswagen breached its implied warrant of merchantability under the Act; and (3) she had revoked her acceptance under the Act.

¶ 5. In September 2002, after Mayberry had put over 32,000 miles on the Jetta, she traded it in and received a $15,100 allowance, amending her complaint to reflect the trade. Volkswagen then moved for summary judgment, submitting evidence that the car's fair market value at the time of the trade-in was actually less than what Mayberry received for the trade. Mayberry's expert provided an affidavit that actually reinforced Volkswagen's arguments. Because she received more than the Jetta's value, Volkswagen con-, tended she suffered no damages.

¶ 6. The trial court agreed, granting Volkswagen's motion. Relying on Valenti v. Mitsubishi Motor Sales, 773 N.E.2d 1199 (Ill. App. Ct. 2002), the court concluded that Mayberry could not establish damages because she sold the car for more than fair market value despite its alleged defects.

Discussion

¶ 7. We review summary judgments de novo, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Generally, summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. We must view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 512, 383 N.W.2d 916 (Ct. App. 1986). "If the material presented on the motion is subject to conflicting interpretations or reasonable people might differ as to its significance, it would be improper to grant summary judgment." Grams v. Boss, 97 Wis. 2d 332, 339, 294 N.W.2d 473 (1980).

¶ 8. The Magnuson-Moss Warranty Act is designed to

require certain disclosures with respect to written warranties, to provide consumers certain remedies in the case of failure of disclosure or nonconformity, and to force warrantors to use certain common adjectives to describe their written warranties.

James J. White & Robert S. Summers, Uniform Commercial Code, § 9-13 (2d ed. 1980). If a product or part continues to be defective or malfunctioning "after a reasonable number of attempts by the warrantor to remedy defects or malfunctions," the warrantor must allow the consumer to elect a refund or replacement of the product or part without charge. 15 U.S.C. § 2304(a)(4) (1975). If the warrantor fails to comply with this obligation, "a consumer who is damaged by the failure . . . may bring suit for damages and other equitable relief." 15 U.S.C. § 2310(d)(1) (1975). However, state law is applied to determine damages. See, e.g., MacKenzie v. Chrysler Corp., 607 F.2d 1162, 1166 (5th Cir. 1979); 17 Am. Jur. 2d Consumer Product Warranty Acts § 12 (2d ed. 2004).

¶ 9. While the facts relating to a damages calculation are a matter left to the trial court, determining the appropriate method of calculation or measure of damages is a question of law. Jauquet Lumber Co. v. Kolbe & Kolbe Millwork Co., 164 Wis. 2d 689, 703, 476 N.W.2d 305 (Ct. App. 1991). Questions of statutory interpretation are also questions of law. Hughes v. Chrysler Motor Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996).

¶ 10. In Wisconsin:

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

Wis. Stat. § 402.714(2). Both parties submit this as the standard, although they disagree on its application. We note that nowhere does the statute mention contemplation of the car's trade-in or fair market values. Because the trial court applied the wrong test for determining damages, the summary judgment was premised on an error of law.

¶ 11. "The time and place of acceptance" defines the temporal moment when we consider both the value of the goods accepted and the value they would have had if they had been as warranted. Mayberry offered her opinion as to the value of the Jetta when she accepted it. She suggested that because of the inherent defects, the car was really only worth about $12,000. Volkswagen produces no contrary evidence, but only claims Mayberry is not qualified to offer her opinion on the Jetta's value. We disagree. The owner of an item is competent to give opinion evidence on value. See Wilberscheid v. Wilberscheid, 77 Wis. 2d 40, 48, 252 N.W.2d 76 (1977). Volkswagen's complaint goes to the weight of Mayberry's opinion, not its admissibility.

¶ 12. The warranted value of the vehicle is the value of the vehicle substantially free of defects. See Murray v. Holiday Rambler, Inc., 83 Wis. 2d 406, 420, 265 N.W.2d 513 (1978). Thus, the $18,000 purchase price is the warranted value at the time and place of acceptance. Considering the fair market or trade-in value for either measure is inappropriate here because the trade-in did not occur "at the time and place of acceptance."

¶ 13. Implicitly, Volkswagen relies on the "special circumstances" portion of the statute when it argues we should consider the Jetta's trade-in value. We discern Volkswagen's argument to be that whatever loss May-berry may have suffered initially on the car's value, if any, she recovered it when she received a trade-in amount greater than the car's fair market value.

¶ 14. The trial court concluded, based on Valenti, 773 N.E.2d at 1199, that Mayberry had no damages because she received more than the car's market value, even based on her own expert's evidence. Not only does this fail to consider Wisconsin's statutory measure of damages, but a subsequent decision of the Appellate Court of Illinois concluded that "there is nothing in the language of the [Magnuson-Moss Warranty] Act to suggest or imply that the resale of the product at issue precludes recovery for breach of contract." Bartow v. Ford Motor Co., 794 N.E.2d 1027, 1032 (Ill. App. Ct. 2003).

¶ 15. In short, the measure of damages in Wisconsin for breach of warranty under the Act is found in Wis. Stat. § 402.714(2). Nowhere does the statute suggest that the fair market value at the time of trade-in is the appropriate yardstick. Illinois previously had a rule suggesting that when one receives more than a vehicle's fair market value at trade-in there are no damages and, while we might normally consider this persuasive authority, subsequent Illinois case law directly contradicts that rule. Thus, based on the statutory measure of damages in § 402.714(2), a genuine issue of fact exists on the question of damages. Mayberry has offered evidence of the Jetta's value at the time and place of acceptance. Volkswagen, however, has offered evidence suggesting "proximate damages of a different amount." The difference cannot be resolved in summary judgment.

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

       This case is not premised on Wisconsin's "lemon law." See Wis. Stat. § 218.0171. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Volkswagen argues and the trial court concluded that Mayberry's testimony was not specific enough to prove her damages. However, at the summary judgment stage, the party with the burden of proof at trial need only "make a showing sufficient to establish the existence of an element essential" to her case. Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 292, 507 N.W.2d 136 (Ct. App. 1993) (citation omitted). Here, Mayberry averred that the vehicle was only worth $12,000 when she accepted it and Volkswagen offers no evidence to the contrary. Because this is summary judgment, we view the evidence in the light most favorable to the nonmoving party. Thus, Mayberry made sufficient allegations to survive summary judgment, although whether she will ultimately prevail on the merits is another issue entirely.

       Volkswagen also argues that it is entitled to an offset for the mileage Mayberry put on the vehicle, especially considering she ran out the warranty. The offset might be addressed as a "special circumstance." Despite the fact that Mayberry used more than the 24,000 miles to which the warranty was limited, "each owner is entitled to enforce the warranty as long as he or she possesses it while it remains viable." Bartow v. Ford Motor Co., 794 N.E.2d 1027, 1032 (Ill. App. Ct. 2003).

       The circuit court may need to start by addressing the issue whether there was a breach of warranty because there must be a breach before damages can be awarded. In addition, Mayberry and Volkswagen dispute whether Mayberry may recover incidental and consequential damages. Volkswagen claims those damages were disclaimed in the warranty, but Mayberry argues that Volkswagen may not "shield itself' with a warranty that has "failed of its essential purpose." The circuit court addressed neither of these issues, apparently because it considered its finding of no damages to be dispositive, but it may consider both on remand if necessary.


author: CANE, C.J.

text:
    Village of Hobart, Plaintiff-Appellant, v. Brown County and Brown County Solid Waste Management Board, Defendants-Respondents.

    Court of Appeals

      No. 03-1907.

      Submitted on Briefs January 13, 2004.

    Decided February 24, 2004.

    2004 WI App 66
    (Also reported in 678 N.W.2d 402.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Richard C. Yde of Stafford, Rosenbaum, LLP of Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of William F. White and Mary C. Turke of Michael, Best, & Friedrich, LLP of Madison.

      On behalf of Outagamie and Winnebago Counties, the cause was submitted on the amicus brief of Joseph P. Guidote, Jr., corporation counsel of Outagamie County.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review pending.

   CANE, C.J.

¶ 1. The Village of Hobart appeals a summary judgment granted in favor of Brown County and the Brown County Solid Waste Management Board. The tri,al court concluded the Village was equitably estopped from enforcing its zoning laws because the County reasonably relied on the Village's erroneous representations that a waste transfer station could lawfully be constructed on a particular site. The Village argues the summary judgment should be reversed because: (1) a municipality cannot be estopped from enforcing its zoning ordinance; (2) the County did not reasonably rely on any action or inaction of the Village when it constructed the station; (3) Wis. Stat. § I3.48(l3)(a) does not provide the County with an alternative basis to justify the transfer station's construction; and (4) the County did not obtain vested rights.

¶ 2. We conclude that when considering whether to issue an injunction for a zoning violation, a circuit court can apply equitable estoppel to bar a municipality from enforcing a zoning ordinance. Nevertheless, we hold that equitable estoppel was not proven here. We further conclude that the transfer station's construction and operation cannot be justified by either Wis. Stat. § 13.48(13)(a) or on a vested rights theory. However, we remand this matter to the circuit court for further proceedings so that the circuit court can determine whether this is one of those rare cases where other equitable considerations justify denying the Village's request for an injunction. Therefore, we reverse the judgment and remand for further proceedings.

Background

¶ 3. The County currently has contracts with the Oneida Tribe of Indians of Wisconsin and thirteen municipalities in Brown County, which includes the Village, to receive and dispose of their solid waste. The County disposed of most of the solid waste at the Brown County East Landfill, which reached capacity in May 2003. Pursuant to a "Tri-County Solid Waste Agreement," the County then disposed the solid waste at the Outagamie and Winnebago County landfills. Because of concerns that these landfills would not be able to manage the increased truck traffic due to the tribe and municipalities directly hauling their solid waste to the landfills, the County decided to construct a new solid waste transfer station to consolidate the waste before it was transported to the landfills.

¶ 4. The County owns property in the Village known as the West Landfill. The County used the property as an active landfill until July 16, 1998, but the property had apparently been used as a park since sometime in 1996. On February 18, 2002, Village board representatives met with the County to discuss siting the transfer station on the West Landfill property. At this meeting, the Village told the County that the West Landfill's use and zoning would comport with the transfer station's use. A few days later, on February 25, the Village and County met for a second time to discuss siting the transfer station. The County proposed arrangements that allowed it to own the transfer station and pay the Village an annual franchise fee of $14,000.

¶ 5. On March 5, the Village held a public board meeting and formally accepted the County's franchise-fee siting proposal. Prior to accepting the proposal, the Village president stated the County did not require Village approval to construct the transfer station because the site was properly zoned and the transfer station would be a permitted use. Relying on the Village's representations, the County employed an engineering firm to obtain the necessary DNR approvals for the transfer station's construction and to ensure the building plans complied with all safety codes. The DNR eventually gave the necessary approvals, and the engineering firm evidently approved the building plans.

¶ 6. On May 6, the Village and County entered into a memorandum of understanding. Among other things, the memo provided, "Brown County agrees to design, permit and build transfer station at West Landfill." This memo concluded by stating it was the Village's intention to approve the transfer station's construction at the West Landfill and to negotiate a thirty-year contract for its operation.

¶ 7. On May 17, the Village supplied the County with a zoning map that showed the West Landfill zoned as "public use." However, the Village's zoning ordinances did not contain a public use classification, but the County, aware of this fact, claimed that it was not concerned because it frequently encountered inconsistencies between zoning maps and zoning codes. In reality, the West Landfill was zoned as "A-2 exclusive agricultural district," and the transfer station is not a permitted use under this zoning classification.

¶ 8. On August 13, the Village board sent a letter to its residents announcing the transfer station's siting at the West Landfill. This letter explained that the transfer station's use conformed to the West Landfill's zoning classification. Just over a week later, on August 21, the Village's Site Review Committee unanimously approved the County's application for the transfer station's construction. The County needed the application approved by the committee in order to later obtain a building permit from the Village.

¶ 9. After receiving approval from the site committee, the County solicited bids for the transfer station's construction, and, on September 16, the County awarded the contract to Geo. M. Hougard & Sons, Inc. The contract provided construction was to commence no later than October 14.

¶ 10. The County needed a sewer permit number to enter on its building permit application. However, on September 24, the Village Board rescinded the memorandum of understanding in response to letters from concerned residents and notified the County of its action on October 1. The Village clerk then refused to issue the County the sewer permit number and informed the County she had been instructed not to issue the County any permits regarding the transfer station. By that date, the County had incurred approximately $130,000 in engineering fees, but construction of the transfer station had not yet begun.

¶ 11. The County sought advice from its corporation counsel, who opined that under Wis. Stat. § 13.48(13)(a), the County could proceed with the construction without a building permit. Thus, despite the Village's change of position, the County commenced constructing the transfer station on October 9.

¶ 12. On October 24, the Village filed suit against the County seeking a permanent injunction to prohibit the County from constructing and operating the transfer station. The grounds alleged to support the injunction included: (1) the transfer station's use was not a permitted use under the West Landfill's A-2 exclusive agricultural district zoning classification, and (2) the County had not obtained the necessary building permits from the Village. The County continued construction of the transfer station during the lawsuit's pen-dency.

¶ 13. On April 23, the circuit court granted summary judgment in favor of the County. The court concluded, in part, that (1) the Village was equitably estopped from enforcing its zoning ordinance, and, (2) pursuant to Wis. Stat: § 13.48(13)(a), the County, as an "arm of the state," did not have to obtain the otherwise necessary building permits. This appeal follows that decision. In the meantime, the transfer station's construction was completed at a cost of approximately $1.3 million and has been operating since May 2003.

Discussion

¶ 14. We review summary judgments de novo, applying the same methodology and standards as the trial court. See Wis. Stat. § 802.08; Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no disputed issues of material fact, summary judgment is proper where the moving party is entitled to judgment as a matter of law. Id.

I. Zoning Violations, Injunctions, and Equitable Considerations

¶ 15. The Village claims the trial court erred when it refused to grant an injunction prohibiting the County from constructing and operating the transfer station. It argues the trial court cannot equitably estop it from enforcing its zoning ordinance. The County responds that a court can rely on equitable considerations when determining whether to issue an injunction for an ordinance violation. We agree with the County.

¶ 16. In Forest County v. Goode, 219 Wis. 2d 654, 681-82, 579 N.W.2d 715 (1998), the supreme court held a court sitting in equity should weigh traditional equitable considerations, including laches, estoppel, or unclean hands, when deciding whether to issue an injunction for a zoning ordinance violation. The court stated, "Once a violation is established, a circuit court should grant the injunction except, in those rare cases, when it concludes, after examining the totality of the circumstances, there are compelling equitable reasons why the court should deny the request for an injunction." Id. at 684. Therefore, equitable estoppel can be a basis upon which the trial court refuses to grant injunctive relief for a zoning violation.

II. Equitable Estoppel

¶ 17. Alternatively, the Village argues the County did not reasonably rely on any of the Village's actions when it decided to move forward with the actual construction, and the subsequent operation, of the transfer station. The County claims that the trial court correctly found equitable estoppel applies due to the numerous assurances given by the Village that the transfer station's use conformed to the West Landfill's zoning classification. Based upon our review of the undisputed facts, we conclude as a matter of law that the County did not prove all the elements of equitable estoppel. See Milas v. Labor Ass'n, 214 Wis. 2d 1, 8, 571 N.W.2d 656 (1997) ("When the facts and reasonable inferences therefrom are not disputed, it is a question of law whether equitable estoppel has been established.").

¶ 18. Equitable estoppel is comprised of the following elements: "(1) action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment." Id. at 11-12. The party asserting the defense must prove these elements by clear and convincing evidence. Bank of Sun Prairie v. Opstein, 86 Wis. 2d 669, 680, 273 N.W.2d 279 (1979). The problem here lies with the third element.

¶ 19. We recognize that when the Village rescinded its memorandum of understanding the County was left in a precarious situation. Construction was set to begin in just over two weeks and the County had already invested six months of planning and approximately $130,000 in expenses, yet the transfer station project was in serious jeopardy because the Village would not issue the necessary building permits. We also acknowledge that the County's situation up to that time was a result of its reliance on the Village's actions.

¶ 20. Setting that aside, though, the fact remains that the County, concerned and questioning how to proceed, then consulted with its corporation counsel. Counsel advised the County that, pursuant to Wis. Stat. § 13.48(13)(a), the Village's turnabout could not stop the County from building the transfer station, even though the County did not have the necessary building permits and the transfer station's use did not comport with the zoning classification. It is undisputed that in reliance upon this advice, the County commenced construction.

¶ 21. As such, when the County began the transfer station's construction after the Village withdrew from the memorandum of understanding, it no longer was relying upon the Village's representations that the West Landfill site's zoning classification allowed for the transfer station's use. Instead, it was relying upon its corporation counsel's advice that it could proceed with construction without the necessary building permits despite the Village's withdrawal from its prior positions.

¶ 22. Consequently, the County has not proved that it reasonably relied upon the Village's pre-construction actions when the County decided to commence construction. Therefore, on this record, equitable estoppel cannot be a ground for denying the Village an injunction for the zoning violation.

III. Construction of County Buildings under Wis. Stat. § 13.48(13)(a)

¶ 23. This conclusion segues into the next issue: does Wis. Stat. § 13.48(13) afford the County a lawful basis for the transfer station's construction without the necessary building permits? Section 13.48(13)(a) states in pertinent part:

[E]very building, structure or facility that is constructed for the benefit of or use of the state, any state agency, board, commission or department... shall be in compliance with all applicable state laws, rules, codes and regulations but the construction is not subject to the ordinances or regulations of the municipality in which the construction takes place except zoning, including without limitation because of enumeration ordi-' nances or regulations relating to materials used, permits, supervision of construction or installation, payment of permit fees, or other restrictions. (Emphasis added.)

The Village argues that by the statute's plain language, it does not apply to the County because it says nothing about county buildings, only state or state agency, board, commission or department buildings. The County responds that the statute does apply to counties because they are "an arm of the state." See O'Donnell v. Reivitz, 144 Wis. 2d 717, 725, 424 N.W.2d 733 (Ct. App. 1988).

¶ 24. We assume, but do not decide, that a County, as an arm of the state, falls within the parameters of Wis. Stat. § I3.48(l3)(a). The consequence of this assumption is that the County argues it was not required to obtain the necessary local building permits. However, the Village points out the statute still specifically requires the governmental entity to comply with zoning ordinances. The County argues either the Village is equitably estopped from enforcing its zoning ordinance or the County complied with the zoning requirements because a municipality's interpretation of its own zoning ordinances is presumed correct. We disagree with the County on both grounds.

¶ 25. Turning to the equitable estoppel argument, a municipality cannot be estopped from seeking to enforce a zoning ordinance violation. See City of Milwaukee v. Leavitt, 31 Wis. 2d 72, 78-79, 142 N.W.2d 169 (1966). In Leavitt, after recognizing that zoning ordinances are enacted pursuant to a municipality's police power, the supreme court stated, "While municipal and other government units are not wholly immune from application of the doctrine of equitable estoppel, this court is firmly committed to the principle that estoppel 'will not lie against a municipality so as to bar it from enforcing an ordinance enacted pursuant to the police power.'" Id. at 76 (citations omitted). Therefore, "erroneous acts of municipal officers do not afford a basis to estop the municipality from enforcing its ordinances enacted pursuant to the police power." Id. at 76-77, and see id. at 78-79 ("[C]itizens have a right to rely upon city officials not having acted in violation of the [zoning] ordinance, and, when such officials do so act, their acts should not afford a basis for estopping the city from later enforcing the [zoning] ordinance.").

¶ 26. Turning to the County's second argument, it claims it complied with the zoning ordinances because under Kapischke v. County of Walworth, 226 Wis. 2d 320, 595 N.W.2d 42 (Ct. App. 1999), the Village's interpretation of its own zoning ordinance is presumed correct. The County argues that because the Village board and its site committee unanimously approved the transfer station's siting as a permitted use, the Village is bound by these interpretations, regardless of the fact that the West Landfill is actually zoned as A-2 exclusive agricultural district.

¶ 27. The County seems to correlate a presumption of correctness with categorical correctness. We do not agree with this correlation and conclude the presumption of correctness is overcome. As the Village notes, the transfer station is actually located in an A-2 exclusive agricultural district. Village of Hobart, Wis., Ordinance § 6.010 outlines the permitted and conditional uses for this zoning classification. See note 3. The ordinance only permits agricultural, residential and limited commercial and public uses. See id. There is no reasonable construction of the zoning ordinance that would allow for the transfer station's use. See id. Quite simply, the Village board and site committee were acting unreasonably and contrary to law by interpreting the ordinance to allow for the siting and operation of the transfer station. Therefore, the presumption of correctness is overcome.

¶ 28. Consequently, Wis. Stat. § 13.48(13)(a) is of no avail to the County. By the plain language of the statute, the County was required to comply with zoning ordinances, which, in light of our conclusions above, it did not do.

IV Vested Rights

¶ 29. The County alternatively argues that it was not required to obtain a building permit because it obtained "vested rights." Citing State ex rel. Schroedel v. Pagels, 257 Wis. 376, 43 N.W.2d 349 (1950), the County claims the vested rights accrued because it applied for a building permit and had incurred expenses in preparing and submitting building plans.

¶ 30. However, "in order for a developer's rights to vest, the developer must submit an application for a building permit which conforms to the zoning or building code requirements in effect at the time of the application." Lake Bluff Hous. Partners v. City of South Milwaukee, 197 Wis. 2d 157, 177, 540 N.W.2d 189 (1995). "The theory behind the vested rights doctrine is that a builder is proceeding on the basis of a reasonable expectation." Id. at 175. Vested rights, therefore, "should only be obtained on the basis of strict and complete compliance with zoning and building code requirements, because a builder's proceeding in violation of applicable requirements is not reasonable." Id.

¶ 31. It is undisputed that the County listed the West Landfill's zoning classification as "public use" on its building permit application. This did not conform to the zoning requirements. Again, the fact remains that the West Landfill was zoned as an A-2 exclusive agricultural district. Therefore, while we are sympathetic to the County's significant expenditures of time and resources planning the transfer station's construction, the County simply could not have obtained vested rights. See id.

Conclusion

¶ 32. The Village asks that we direct the circuit court to issue an injunction to abate the County's zoning violation. In light of Goode, we cannot do this. In Goode, 219 Wis. 2d at 684, the supreme court held, "In deciding whether to deny a request for an injunction based upon a ... zoning ordinance violation, the circuit court should take evidence and weigh any applicable equitable considerations." These considerations should include, but not be limited to: (1) the substantial interests of the property owners and residents of the neighborhood adversely affected by the violation, see id; Leavitt, 31 Wis. 2d at 78; (2) the extent of the violation, Goode, 219 Wis. 2d at 684; (3) the good faith of other parties, id.; and (4) any other applicable equitable defenses, id., with the caveat that we have concluded equitable estoppel is not available under the facts adduced thus far. Because the circuit court may take additional evidence and then weigh these equitable considerations, we remand to the circuit court for a hearing on whether it should grant or deny the injunction. See id.

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

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The Village also argues the trial court erred when it denied the injunction by concluding the Village was required to show irreparable injury. As the Village correctly observes, a municipality does not have to show irreparable injury where it is authorized to seek a statutory injunction to enjoin a zoning ordinance violation. See Forest County v. Goode, 219 Wis. 2d 654, 682-83, 579 N.W.2d 715 (1998). The Village's authority to enforce municipal zoning ordinance is conferred by Wis. Stat. §§ 61.35 and 62.23(8).

       Village of HobaRT, Wis., Ordinance § 6.010 sets forth the permissible uses for an A-2 exclusive agricultural district. It states:
      Lawful uses which are pursuant to the preservation of prime agricultural land for continual farming and which are performed in a manner consistent with the requirements of this Ordinance, shall be permitted in all A-2 Districts.
      The following shall apply in A-2 Districts:
      A. PERMITTED USES
      1. Agriculture, dairying, floriculture, forestry, general farming, grazing, non-retail greenhouses, hatcheries, horticulture, livestock raising, nurseries, orchards, paddocks, pasturage, poultry raising, truck farming, game farms, fish farms, wildlife sanctuaries and game preserves.
      2. Commercial feedlots and stock farms.
      3. Farm ponds.
      4. Single family dwellings to be occupied by a person who, or a family at least one (1) member of which earns a substantial part of his or her livelihood from farm operations on the parcel, or is a parent or child of the operator of the farm.

        C. CONDITIONAL USES
      1. Agricultural warehouses which do not conflict with agricultural uses and/or are found necessary in light of alternative locations available for such uses, or which are incidental to the farm operation.
      2. Airfields, airports, and heliports, provided that they are public uses.
      3. Artificial lakes.
      4. Bed and breakfast establishments.
      5. Cemeteries.
      6. Colleges, universities.
      7. Commercial raising of animals, such as foxes, goats, hogs, mink, and rabbits.
      8. Parks, recreation sites, and golf courses if they are public (governmental) facilities.
      9. Quarries, sand and gravel pits, if public facilities or incidental to the farm operation.
      10. Railroad right-of-way and passenger depots, not including switching, storage, freight yards, or sidings which do not conflict with agricultural use and/or are found necessary in light of alternative locations available for such uses.
      11. Religious institutions in the form of convents, seminaries, monasteries, churches, chapels, temples, synagogues, rectories, parsonages, and parish houses.
      12. Riding academies and stables which do not conflict with agricultural use and/or are found necessary in light of alternative locations available for such uses.
      13. Stockyards and fur farms.
      14. Two family dwellings to be occupied by a person who, or a family at least one (1) member of which, earns a substantial part of his or her livelihood from farm operations on the parcel, or is a parent or child of the operator of the farm.

       Wisconsin Stat. § 13.48(13)(a) states:
      Except as provided in par. (b) or (c), every building, structure or facility that is constructed for the benefit of or use of the state, any state agency, board, commission or department,... shall be in compliance with all applicable state laws, rules, codes and regulations but the construction is not subject to the ordinances or regulations of the municipality in which the construction takes place except zoning, including without limitation because of enumeration ordinances or regulations relating to materials used, permits, supervision of construction or installation, payment of permit fees, or other restrictions.

       The construction cost is estimated from the contract the County awarded to the builders.

       This principle was recently reaffirmed in Town of Delafield v. Winkelman, 2004 WI 17, ¶ 28, 269 Wis. 2d 109, 675 N.W.2d 470.

       We also note that equitable estoppel
      "is not applied as freely against governmental agencies as it is in the case of private persons." Courts have recognized "the force of the proposition that estoppel should be applied against the Government with utmost caution and restraint, for it is not a happy occasion when the Government's hands, performing duties in behalf of the public, are tied by the acts and conduct of particular officials in their relations with particular individuals."

        Milas v. Labor Ass'n, 214 Wis. 2d 1, 14, 571 N.W.2d 656 (1997) (citations omitted).
      Equitable estoppel may be applied against the government "if the government's conduct would work a serious injustice and if the public interest would not be unduly harmed by the application of estoppel." Id. The court "must balance the public interests at stake if estoppel is applied against the injustice that might be caused if it is not." Id.

       Whether these expenses are recoverable is not before us.

       We do not conclude, however, whether that rebanee was reasonable.

       We make this assumption because of the brief argument made by both parties on this point. We note, however, the likelihood of assumption being true is questionable. The attorney general issued an informal opinion on January 8, 1997, concluding that Wis. Stat. § 13.48.13(a) facially does not apply to county buildings and that, historically, county buildings were never exempt from local zoning ordinances under that statute. Additionally, a county is a municipal subdivision, not a state agency, board, commission or department. See 1 McQuillin Mun. Corp. § 1.24, at 23 (3d ed. 1999).

       This should not be confused with our conclusion above— that a trial court can refuse to issue an injunction for a zoning violation on the grounds of equitable estoppel. See Forest County, 219 Wis. 2d at 681-82. As noted in Town of Delafield v. Winkelman, 2003 WI App 92, ¶ 1, 264 Wis. 2d 264, 663 N.W.2d 324, in light of Goode, the zoning ordinance violator now has " 'two kicks at the cat,' once to defend against the claim that there is a violation and, second, to defend against enforcement of a sanction for that violation." Our conclusion above related only to the second kick. As to the first kick, which is what our discussion here essentially involves, the law is clear that a municipality cannot be estopped from seeking to enforce its zoning ordinance. See City of Milwaukee v. Leavitt, 31 Wis. 2d 72, 78-79, 142 N.W.2d 169 (1966).

       The County argues, however, that the erroneous representations in this case came not only from municipal officers, but from the Village itself. It notes that the Village board and its site committee initially approved the siting of the transfer station at the West Landfill. On this ground, it argues Leavitt is not controlling and suggests Russell Dairy Stores v. Chippewa Falls, 272 Wis. 138, 74 N.W.2d 759 (1956), is dispositive. We disagree.
      In Russell Dairy Stores, a City of Chippewa Falls ordinance prevented anyone from constructing driveways that connected to streets by cutting or altering the street's curbs. The plaintiff applied for a permit to construct a driveway that altered a curb, but the plaintiff agreed to provide a concrete apron to replace the curb. The city council granted the permit, and the plaintiff completed the driveway's construction a few days later. Just over six weeks after construction was completed, the council voted to rescind the permit. Id. at 142. The supreme court applied equitable estoppel to prevent the rescission because "[substantial rights to the driveway and its use had become vested in the plaintiff before the city adopted the resolution rescinding the permit." Id. at 145-46. The court also enjoined the city from enforcing the ordinance.
      It is true that Russell Dairy Stores involved the actions of an entire body instead of individual officers. It is also true that the supreme court in a subsequent decision has highlighted this fact. See Willow Creek Ranch v. Town of Shelby, 2000 WI 56, ¶ 55, 235 Wis. 2d 409, 611 N.W.2d 693. However, central to and inseparable from the court's holding was the fact that plaintiff obtained vested rights in the property. Id. As established below, the County here did not obtain vested rights. Russell Dairy Stores, therefore, is not controlling.

       The County assumes the actions of the Village board and its site committee constituted an interpretation of the ordinance. We will work under this assumption.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Gricel S. Echavarria, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Gricel S. Echavarria, Respondent.
    Supreme Court

      No. 04-0499-D.

      Decided May 12, 2004.

    2004 WI 51
    (Also reported in 679 N.W.2d 294.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Gricel S. Echavarria and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12 concerning Attorney Echavarria's professional misconduct that resulted in her conviction in federal court for conspiracy to produce and transfer false identification documents, counterfeit resident alien cards, and counterfeit social security cards, in violation of 18 U.S.C. §§ 1028(a) and 1546(a), and 42 U.S.C. § 408(a)(7)(C), a Class D felony. The parties stipulated that the appropriate discipline to impose for that professional misconduct is the suspension of Attorney Echavarria's license to practice law for two years, retroactive to the date on which Attorney Echavarria's license to practice law was summarily suspended based on her criminal conviction.

¶ 2. We approve the stipulation and adopt the stipulated facts and conclusions of law. We agree that the seriousness of Attorney Echavarria's misconduct warrants the suspension of her license to practice law. We accept the parties' stipulation that a two-year suspension is appropriate discipline for this offense. We further agree that it is appropriate to make the suspension retroactive to the date Attorney Echavarria's license was summarily suspended based on her criminal conviction.

¶ 3. Attorney Echavarria was admitted to practice law in Wisconsin in 2000. In April 2003 she and her husband Victor were indicted in United States District Court for the Western District of Wisconsin on charges relating to the production and sale of counterfeit identification documents. That same month an agent of the FBI and a special agent with the Social Security Administration interviewed Attorney Echavarria. She told the agents that in May 2001 she had learned that her husband was involved in manufacturing fraudulent documents. She said on the average her husband earned between $400 and $500 a month making and selling the fraudulent documents. She said on approximately three occasions her husband asked her to rewrite information on handwritten lists containing names, social security numbers, dates of birth, gender, and ages of persons and she did so. She said after November 2002 her husband occasionally asked her to call the Social Security Administration to verify social security numbers and she did this, using her employer tax identification number and telling social security officials that she was calling to check on a potential or recently hired employee.

¶ 4. Attorney Echavarria told agents that on one or two occasions she made and sold false documents by herself. She said there were times when her husband would ask her to sign a name to a fraudulent document and she did so. She said she and her husband shared some of the same clients so possibly 80 percent of her clients had illegal status. She told the agents she had seen pictures on her home computer (which had been taken for identification documents) of people she had seen in her law office. Incriminating evidence found at her home included lists of names and social security numbers in her handwriting, cards she had signed for people who could not write, and pictures of people in her home computer that had dealt with her in her law office.

¶ 5. In May of 2003 Attorney Echavarria self-reported her indictment to the OLR through her then counsel. On June 23, 2003, she pled guilty to the conspiracy count, pursuant to a plea agreement. On August 20, 2003, she was sentenced to 27 months in prison. She is currently serving that sentence at Federal Prison Camp in Greenville, Illinois. On November 17, 2003, this court summarily suspended Attorney Echavarria's license based on her criminal conviction.

¶ 6. Attorney Echavarria and the OLR have stipulated that the conduct for which she was convicted constitutes a criminal act that reflects adversely on her honesty, trustworthiness, or fitness as a lawyer, in violation of SCR 20:8.4(b). The parties stipulated that Attorney Echavarria's misconduct was aggravated by her knowledge of and participation in a pattern of misconduct, the element of personal gain resulting from the misconduct, her willful violations of the law, and by the damage her misconduct and criminal conviction have caused to the perception of the integrity of lawyers in the legal system.

¶ 7. The stipulation goes on to say that mitigating factors include Attorney Echavarria's lack of prior disciplinary history and her relative lack of experience as a lawyer at the time of her misconduct. The stipulation notes that, although not mitigating factors per se, this court may consider the fact that Attorney Echavarria self-reported her indictment and cooperated with the OLR's investigation. The stipulation also points out that during the course of its investigation the OLR received a substantial number of letters from Attorney Echavarria's friends, relatives, law professors, teachers, and fellow attorneys, all pleading that she be given the chance to again practice law. The stipulation also notes the submissions indicate that Attorney Echavarria, a member of a Puerto Rican family that valued education, overcame poverty to obtain two masters degrees, followed by her law degree from the University of Wisconsin. The stipulation says the submissions describe Attorney Echavarria as hardworking, unfailingly helpful, putting others ahead of herself, and dedicated to the Hispanic community. The stipulation also notes that Attorney Echavarria’s sentencing statement reinforces her acceptance of responsibility for her actions and the remorse she feels concerning her conduct.

¶ 8. We adopt the findings of fact and conclusions of law to which the parties have stipulated concerning Attorney Echavarria's professional misconduct. We determine that the seriousness of the misconduct, in light of the aggravating and mitigating factors, warrants the suspension of her license to practice law for two years.

¶ 9. IT IS ORDERED that the license of Gricel S. Echavarria to practice law in Wisconsin is suspended for a period of two years, retroactive to November 17, 2003.

¶ 10. IT IS FURTHER ORDERED that, if she has not already done so, Attorney Echavarria comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       SCR 22.12 provides: Stipulation.
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

       SCR 20:8.4(b) provides: "It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."