text:
    Pietroske, Inc., Plaintiff-Respondent, v. Globalcom, Inc., Defendant-Appellant.
    Court of Appeals

      No. 03-2389.

      Submitted on briefs May 17, 2004.

    Decided June 16, 2004.

    2004 WI App 142
    (Also reported in 685 N.W.2d 884.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Charles David Schmidt of Cannon & Dunphy, S.C., Brookfield, and M. Gavin McCarty of Globalcom, Inc., Chicago, admitted pro hac vice.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Ralph J. Sczygelski of Sczy-gelski Law Firm, LLC., Manitowoc.
    Before Anderson, PJ., Brown and Nettesheim, JJ.

       Petition to review denied 9-1-04.

   ANDERSON, PJ.

¶ 1. In Wisconsin a forum-selection clause is presumptively valid. A court will refuse to enforce the clause only if there is a quantum of procedural unconscionability plus a quantum of substantive unconscionability. Because the circuit court did not properly balance procedural and substantive uncon-scionability, we reverse.

¶ 2. Robert Pietroske has forty-two years of business experience, the last twenty-seven years as the owner of Pietroske, Inc., a General Motors dealership. Robert is solely responsible for negotiating business contracts, including contracts for telecommunication services. On March 14, 2000, on behalf of Pietroske, Inc., Robert entered into a contract with Globalcom, Inc., for telephone services. The contract, prepared by Globalcom, is a one-sheet standard form contract or service agreement; the front side is a series of sections with fill-in-the-blanks to gather specific information on the services Globalcom will provide to the buyer. At the bottom of the front side is "Section 9 Customer Authorization," which contains the following language immediately above the customer's signature: "The customer understands and agrees that all of Globalcom® services are provided under. . . the terms and conditions set forth on the reverse side of this form." The reverse side is two columns, in one size typeface, and contains general terms of the service agreement, including guarantee, cancellation/default, interruption of service, payment and billing, and liability. The last two sentences of paragraph "g" of cancellation/default provide: "Customer agrees that all disputes will be under the laws of the State of Illinois. Venue shall be in Cook county, Illinois."

¶ 3. In March 2003, Pietroske, Inc., commenced an action against Globalcom alleging breach of contract, strict responsibility and negligent misrepresentation. Globalcom responded with an answer and a motion to enforce the forum-selection clause by transferring venue to Cook county, Illinois. In opposition to the motion, Robert filed an affidavit in which he stated that the forum-selection clause was not specifically pointed out to him and that he did not read the service agreement before he signed as owner of Pietroske, Inc.

¶ 4. The circuit court denied the motion. In its oral decision, the circuit court conducted both a substantive and a procedural unconscionability analysis. The court held that the forum-selection clause was unreasonably favorable to Globalcom.

The court will, however, conclude that — that a contract term that provides in all situations that a contract is going to be resolved in the seller's home court is certainly favorable to the seller or the defendant in this case. And I will conclude that where the contract does include that language, and there's been no specific mention of that language, nor has it been called to the attention of the purchaser, in this case the plaintiff, one could conclude that that contract term is unreasonably favorable to the other pariy. That is, it's not a bargain for benefit, it's not something that the other side signed off on specifically, although obviously it wasn't read.

Globalcom sought leave to appeal from the order denying its motion to enforce the forum-selection clause. We granted its petition because an appeal would materially advance the termination of the litigation. Wis. Stat. § 808.03(2)(a) (2001-02).

¶ 5. Before us, Globalcom contends that the forum-selection clause is unambiguous, reasonable and enforceable.

The rule of law in Wisconsin is that a forum selection clause is enforceable unless the contract provision is substantively unreasonable in view of the bargaining power of the parties. The conclusion that a contract clause is or is not valid involves determinations of fact and law. An evidentiary hearing is required to enable the court to make the necessary factual findings to support a conclusion that a clause is unconscionable.

Leasefirst v. Hartford Rexall Drugs, Inc., 168 Wis. 2d 83, 88-89, 483 N.W.2d 585 (Ct. App. 1992) (citations and footnote omitted).

The trial court's decision that a clause is or is not valid involves determinations of fact and law and will be reviewed as such. The reviewing court will uphold the factual determinations underlying its legal conclusion unless they are contrary to the great weight and clear preponderance of the evidence. Whether the facts fulfill the legal standard, here reasonableness, is a determination of law, and ordinarily the appellate court need not defer to the trial court's determination of a question of law.

Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357 (1983) (citations omitted).

¶ 6. In the context of a forum-selection clause, we are concerned about procedural and substantive uncon-scionability. Leasefirst, 168 Wis. 2d at 89. "Procedural unconscionability relates to factors bearing on the meeting of the minds of the contracting parties; substantive unconscionability pertains to the reasonableness of the contract terms themselves. The balance tips in favor of unconscionability when there is a certain quantum of procedural plus a certain quantum of substantive unconscionability." Id. at 89-90. The balancing of procedural and substantive unconscionability requires courts to consider each questionable forum-selection clause on a case-by-case basis and precludes the development of a bright-line rule.

¶ 7. We conclude that there is no substantive unconscionability in the forum-selection clause. It is reasonable for Globalcom to select its headquarters' city as the forum of choice; all of Globalcom's records and employee-witnesses would be located there. In this case, it is reasonable to require Pietroske, Inc., to travel to Cook county to pursue its dispute with Globalcom because Robert is the only employee of Pietroske, Inc., who is authorized to contract for telecommunication services; consequently, there would be no major personnel or financial impact on Pietroske, Inc. This case is easily distinguishable from Leasefirst, where the forum-selection clause gave Leasefirst the exclusive right to select as a forum any state in which it did business; for example, it could select to submit a dispute in Wisconsin to a court in Hawaii if it did business in Hawaii. See id. at 90-91. This case can also be distinguished from First Federal Financial Service, Inc. v. Derrington's Chevron, Inc., 230 Wis. 2d 553, 556, 602 N.W.2d 144 (Ct. App. 1999), where the buyer and seller were both located in California and the only contact with Wisconsin was that it was the headquarters for the financing company.

¶ 8. We also conclude that there is no procedural unconscionability. Nothing in the contract prevented a true meeting of the minds. In Leasefirst, 168 Wis. 2d at 90, and First Federal, 230 Wis. 2d at 561, we held there was not a true meeting of the minds because the existence of a significant party to the contract — the financing company — was never revealed to the buyers. In contrast, in this case, there is no unrevealed third-party to the contract between Pietroske, Inc., and Globalcom. In Leasefirst, 168 Wis. 2d at 90, and First Federal, 230 Wis. 2d at 557 n.2, we were also concerned that the forum-selection clause was in a small print size; in this case, the clause is in the same size print as all of the terms on the page.

¶ 9. The format of the service agreement does not suggest procedural unconscionability. As previously described, the service agreement is one page, front and back. Directly above Robert's signature is a one-paragraph warning that there were terms and conditions on the reverse side to which Pietroske, Inc., would be held. The terms and conditions on the reverse side are not lengthy and come close to being in plain English. Likewise, the fact that the service agreement is a boiler plate contract does not prevent a true meeting of the minds. We agree with Judge Posner's observations in Northwestern National Insurance Co. v. Donovan, 916 F.2d 372, 377 (7th Cir. 1990):

Ours is not a bazaar economy in which the terms of every transaction, or even of most transactions, are individually dickered; even when they are, standard clauses are commonly incorporated in the final contract, without separate negotiation of each of them. Form contracts, and standard clauses in individually negotiated contracts, enable enormous savings in transaction costs, and the abuses to which they occa- ■ sionally give rise can be controlled without altering traditional doctrines, provided those doctrines are interpreted flexibly, realistically. If a clause really is buried in illegible "fine print" — or if... it plainly is neither intended nor likely to be read by the other party — this circumstance may support an inference of fraud, and fraud is a defense to a contract.

¶ 10. This case does have one similarity with Leasefirst, 168 Wis. 2d at 90, and First Federal, 230 Wis. 2d at 561: the forum-selection clause was not explained to the buyer. However, the failure of the Glo-balcom representative to point out the forum-selection clause to Robert does not create procedural unconscionability that dooms the clause. Robert has forty-two years of business experience, the last twenty-seven years as the owner of Pietroske, Inc.; in addition, he is the only employee with the authority to enter into contracts for services to be provided to the corporation. With his experience and authority, he cannot hide behind the failure of the Globalcom representative to point out and explain the forum-selection clause.

¶ 11. Robert, as a savvy businessperson, had an obligation to read the service agreement presented by Globalcom.

Failure to read a contract, particularly in a commercial contract setting, is not an excuse that relieves a person from the obligations of the contract. "Men, in their dealings with each other, cannot close their eyes to the means of knowledge equally accessible to themselves and those with whom they deal, and then ask courts to reheve them from the consequences of their lack of vigilance." Nauga, Inc. v. Westel Milwaukee Co., Inc., 216 Wis. 2d 306, 314-15, 576 N.W.2d 573 (Ct. App. 1998) (quoting this court's decision in Carney-Rutter Agency v. Central Office Bldgs., 263 Wis. 244, 252-253, 57 N.W.2d 348 (1953)).

Deminsky v. Arlington Plastics Mach., 2003 WI 15, ¶ 30, 259 Wis. 2d 587, 657 N.W.2d 411, reconsideration denied, 2003 WI 91, 262 Wis. 2d 505, 665 N.W.2d 378. As we explained in Putnam v. Time Warner Cable of Southeastern Wisconsin, Ltd. Partnership, 2001 WI App 196, ¶ 12 n.3, 247 Wis. 2d 41, 633 N.W.2d 254, aff'd in part, reversed in part on other grounds, 2002 WI 108, 255 Wis. 2d 447, 649 N.W.2d 626, Robert's mistake was in not reading the service agreement:

[I]f it was a mistake at all, [it] may have been one resulting from what could be termed conscious ignorance — an ignorance inevitably present in myriad situations in which people simply have no desire, incentive or need to know details that might alter their view of the fairness of a transaction. Restatement (Seoond) of CONTRACTS § 154 cmt. c (1979) explains:
Conscious ignorance. Even though the mistaken party did not agree to bear the risk, he may have been aware when he made the contract that his knowledge with respect to the facts to which the mistake relates was limited. If he was not only so aware that his knowledge was limited but undertook to perform in the face of that awareness, he bears the risk of the mistake. It is sometimes said in such a situation that, in a sense, there was not mistake but "conscious ignorance." (Citation omitted.)

¶ 12. The circuit court erred when it found the forum-selection clause unenforceable because it had not been pointed out to Robert. The unconscionability question requires a balancing approach. Deminsky, 259 Wis. 2d 587, ¶ 27. Before a forum-selection clause can be found to be unenforceable, there must be both a quantum of procedural unconscionability plus a quantum of substantive unconscionability. See id. Our independent review fails to uncover either form of uncon-scionability.

By the Court. — Order reversed.

       We note that the contract at issue did not contain a choice of law clause.

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

        Leasefirst v. Hartford Rexall Drugs, Inc., 168 Wis. 2d 83, 88-89, 483 N.W.2d 585 (Ct. App. 1992), summarized a longer discussion about unconscionability in Discount Fabric House v. Wisconsin Telephone Co., 117 Wis. 2d 587, 600-02, 345 N.W.2d 417 (1984); there, quoting from Johnson v. Mobil Oil Corp., 415 F. Supp. 264, 268 (E.D. Mich. 1976), the Wisconsin Supreme Court described what factors make up procedural unconsciona-bility:
      Under the "procedural" rubric come those factors bearing upon. .. the "real and voluntary meeting of the minds" of the contracting parties: age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question.

        Disc. Fabric House, 117 Wis. 2d at 602.


source: Caselaw Access Project

author: ANDERSON, PJ.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeffrey P. Powers, Defendant-Appellant.
    Court of Appeals

      No. 03-2450-CR.

      Submitted on briefs May 5, 2004.

    Decided June 16, 2004.

    2004 WI App 143
    (Also reported in 685 N.W.2d 869.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Walter A. Piel, Jr. of Raymond Law Office, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, PJ., Brown and Snyder, JJ.
   ANDERSON, PJ.

¶ 1. Jeffrey E Powers challenges the investigatory stop that led to his arrest on a fifth offense operating while intoxicated charge (OWI). Powers insists there is no evidence that the citizen informant who turned him in to the police was known to be reliable because there was no evidence that the citizen informant actually saw him operate a motor vehicle or violate the law. He further argues that the citizen informant had no articulable facts indicating why the citizen thought Powers was intoxicated. We reject Powers' appeal and affirm for the reason that under the totality of the circumstances, there was a reasonable suspicion that criminal activity may be occurring.

BACKGROUND

¶ 2. At 10:38 a.m., Officer Ronald Bethia of the City of Brookfield Police Department was dispatched to an Oseo Drug Store. He was informed that a clerk from the Oseo store, with the name of Corona, had called the department to report that "an intoxicated man had come in to make purchases at the store buying beer, a little outfit, and something else." Bethia was told that Corona had related that the man's credit card had been declined and he had left Oseo stating that he would be coming back with money. Corona also supplied a description of the truck and its license plate number.

¶ 3. When Bethia arrived at the Oseo store, he located the truck described by Corona and parked to keep it under observation. Shortly after the officer put the vehicle under observation, he saw an individual, later identified as Powers, carrying a case of beer and "a bib or some type of small item," walking unsteadily to the truck. Bethia watched Powers get into the truck, start it and drive through the parking lot to the entry onto a public street. As Powers prepared to pull the truck onto thé public street, Bethia activated his emergency lights. Powers did not immediately respond to the emergency lights and Bethia tapped his siren at least one to two times in an attempt to attract Powers' attention. Powers finally turned into another parking lot and stopped in front of a restaurant, where he was confronted by Bethia.

¶ 4. Powers was charged with two felony counts, fifth offense OWI, in violation of Wis. Stat. §§ 346.63(l)(a), 346.65(2)(e) and 343.30(lq)(b), and fifth offense operating a motor vehicle with a prohibited alcohol concentration (PAC), in violation of §§ 346.63(1)(b), 346.65(2)(e) and 343.30(1q)(b). He filed a motion seeking to suppress all of the evidence, arguing that Bethia lacked reasonable suspicion to conduct an investigative traffic stop. After a hearing at which Bethia was the only witness, the trial court denied the motion. The court, relying upon State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, and State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877, held that the tip from the Oseo clerk, Corona, was reliable and Bethia properly relied upon that tip and his personal observations in accumulating reasonable suspicion to conduct an investigatory stop. In due course, Powers entered a guilty plea to one felony count and was found guilty; he now appeals the denial of his motion to suppress.

¶ 5. Powers challenges the reasonable suspicion to support the investigative stop. First, he asserts there was no showing the Oseo clerk was reliable since the clerk was not known to he reliable in the past. Second, he claims the basis of the clerk's knowledge was weak or nonexistent because the clerk did not see him drive his truck or violate the law. Finally, he contends there was no information on why the clerk thought he was intoxicated.

STANDARD OF REVIEW

¶ 6. The sole question we must address in this case is whether Bethia had the requisite reasonable suspicion to justify his stop of Powers. The determination of reasonable suspicion for an investigatory stop is a question of constitutional fact. State v. Williams, 2001 WI 21, ¶ 18, 241 Wis. 2d 631, 623 N.W.2d 106. We apply a two-step standard of review to questions of constitutional fact. Id. First, we review the trial court's findings of historical fact and uphold them unless they are clearly erroneous. Id. Second, we review the determination of reasonable suspicion de novo. Id.

¶ 7. The temporary detention of a citizen constitutes a seizure within the meaning of the Fourth Amendment and triggers Fourth Amendment protections. State v. Harris, 206 Wis. 2d 243, 253, 557 N.W.2d 245 (1996). A police officer may, in the appropriate circumstances, approach an individual for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. See Terry v. Ohio, 392 U.S. 1, 22 (1968). When police make an investigative stop of a person, it is not an arrest and the standard for the stop is less than probable cause. State v. Allen, 226 Wis. 2d 66, 70-71, 593 N.W.2d 504 (Ct. App. 1999). The standard is reasonable suspicion, "a particularized and objective basis" for suspecting the person stopped of criminal activity. Ornelas v. United States, 517 U.S. 690, 696 (1996) (citation omitted). When determining if the standard of reasonable suspicion was met, those facts known to the officer must be considered together as a totality of the circumstances. State v. Richardson, 156 Wis. 2d 128, 139-40, 456 N.W.2d 830 (1990).

DISCUSSION

¶ 8. Before addressing Powers'arguments, we will clarify when a seizure occurs. The trial court held that Powers was seized when Bethia activated his emergency lights. That is not the law in Wisconsin. In State v. Kelsey C.R., 2001 WI 54, ¶ 33, 243 Wis. 2d 422, 626 N.W.2d 777, the supreme court held, "In order to effect a seizure, an officer must make a show of authority, and the citizen must actually yield to that show of authority." In this case, the seizure did not occur until Powers pulled off the public street, into a parking lot, and parked in front of a restaurant. Therefore, in considering whether the standard for reasonable suspicion has been met, we may include in the totality of the circumstances everything from the tip from the clerk at Oseo to Powers' parking in front of the restaurant.

¶ 9. Powers attacks the tip provided by the clerk at Oseo; he contends that Bethia could not give it any credence. We begin by restating the obvious: when a caller provides his or her name, the tip is not anonymous; it is a tip from a citizen informant. See Sisk, 247 Wis. 2d 443, ¶ 8. In Sisk, we explained the significance of a tip from a known citizen:

[I]f "an informant places his [or her] anonymity at risk, a court can consider this factor in weighing the reliability of the tip." Williams, 2001 WI 21 at ¶ 35 (quoting [Florida a] J.L., 529 U.S. [266,] 276 [2000], Kennedy, J., concurring). Further, when a caller gives his or her name, police need not verify the caller's identity before acting on the tip. State v. Kerr, 181 Wis. 2d 372, 381, 511 N.W.2d 586 (1994) ('"[W]hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case."') (citation omitted). As the Wisconsin Supreme Court declared, "we view citizens who purport to have witnessed a crime as reliable, and allow the police to act accordingly, even though other indicia of reliability have not yet been established." Williams, 2001 WI 21 at ¶ 36. See also State v. Paszek, 50 Wis. 2d 619, 631, 184 N.W.2d 836 (1971) (" A citizen who purports ... to have witnessed a crime is a reliable informant even though his reliability has not theretofore been proved or tested.'") (quoted source omitted). Dangerously, any other holding would require police to take critically important time to attempt to verify identification rather than respond to crimes in progress.

Sisk, 247 Wis. 2d 443, ¶ 9 (footnotes omitted). The inherent reliability of a citizen informant trumps Powers' argument that the clerk did not have a history of providing reliable information to law enforcement.

¶ 10. Powers insists that the clerk's tip is unreliable because the clerk did not observe Powers drive his truck "in a manner consistent with someone who was under the influence of an intoxicant." We conclude that the tip was reliable for several reasons.

¶ 11. First, the tip was based on first-hand observations. The undisputed evidence is that the clerk called the police, gave his or her name as Corona, and reported an intoxicated man was in the Oseo store purchasing a case of beer, a small outfit and something else. Corona informed law enforcement that the individual's credit card had been rejected and he had left to get money to pay for his purchases. Corona also provided a description of the truck and a license plate number. From this undisputed evidence, several reasonable inferences arise: (1) Corona had face-to-face contact with Powers and observed one or more indicia of intoxication — odor of alcohol, slurred speech, glassy-eyes, etc., and (2) Corona had an unobstructed view of the parking lot that permitted Corona to observe Powers enter or exit the truck.

¶ 12. Second, while other cases have involved tips from informants who have observed erratic driving, the informant's failure to see the driver actually drive the vehicle is not fatal. In Rutzinski, the arresting officer received a dispatch based upon a cell-phone call from an unidentified motorist advising of a truck driving erratically. Rutzinski, 241 Wis. 2d 729, ¶ 4. However, other jurisdictions have found tips to be reliable that come from employees of businesses who have observed individuals they believe to be drunk, whether or not those individuals were driving. In State v. Riefenstahl, 779 A.2d 675, 676 (Vt. 2001), an employee of a gas station called law enforcement, gave his name and reported a male operator was possibly intoxicated and driving; the caller provided a description of the vehicle and a license plate number. The Vermont Supreme Court held that "[t]he named informant's tip contained sufficient indicia of reliability to justify the stop." Id. at 677. In Connecticut, the appellate court upheld a traffic stop initiated by a call from a nightclub employee that a patron was intoxicated and leaving the club. State v. Bolanos, 753 A.2d 943, 944-45 (Conn. App. Ct. 2000). In Kansas, the state supreme court concluded that a reasonable suspicion of criminal activity existed after police corroborated a tip from an anonymous caller who reported a possible drunk driver and gave a description of the vehicle and license plate number. State v. Slater, 986 P.2d 1038, 1044 (Kan. 1999). The Colorado Court of Appeals upheld a stop based on the tip from a clerk at a gas station who reported seeing an intoxicated male getting into a car. Peterson v. Tipton, 833 P.2d 830, 831-32 (Colo. Ct. App. 1992). Finally, the Minnesota Court of Appeals upheld a traffic stop based upon an initial call from a Burger King employee reporting a drunk driver at a Burger King restaurant. Playle v. Comm'r of Pub. Safety, 439 N.W.2d 747, 748 (Minn. Ct. App. 1989).

¶ 13. Third, the officer can rely upon the clerk's assessment that Eowers was drunk; in Wisconsin, a layperson can give an opinion that he or she believes another person is intoxicated. See State v. Bailey, 54 Wis. 2d 679, 685, 196 N.W.2d 664 (1972). Other jurisdictions have upheld traffic stops based, in part, on a layperson's assessment that another person was intoxicated. Slater, 986 P.2d at 1046 ("[T]he mere fact that the tip includes only the conclusory statement that the suspect was drunk would not necessarily foreclose the prospect of the tip's reliability."); Playle, 439 N.W.2d at 749 ("A layperson is qualified to give an opinion as to whether a person is under the influence, based upon observations of that person."); Bolanos, 753 A.2d at 946 ("[L]aymen may testify as to their opinion of whether a person is intoxicated.") (citation omitted); People v. Willard, 228 Cal. Rptr. 895, 897 (Cal. App. Dep't Super. Ct. 1986) ("The objective signs of intoxication are matters of common knowledge and experience.").

¶ 14. Finally, Bethia independently verified the clerk's tip. The officer parked his squad so he would have a clear view of Powers' truck. A short time later, he saw Powers, carrying a case of beer and a bib or other small object, matching the clerk's description of what Powers purchased in the store, walking unsteadily to the truck, matching the description given by the clerk. Where a tip has a high degree of reliability because the informant identified himself or herself and the police independently verify the information before conducting a stop, the resulting stop is supported by reasonable suspicion. See Sisk, 247 Wis. 2d 443, ¶¶ 10-11. Other jurisdictions have also held that independent verification of an informant's tip is a relevant factor in assessing whether there was reasonable suspicion to conduct an investigative stop. See Slater, 986 P.2d at 1044 ("An officer may corroborate the tip by observing illegal activity or by finding the person and vehicle and the location as substantially described by the informant."); Bolanos, 753 A.2d at 946 (arresting officer "had a reasonable and articulable suspicion sufficient to stop the vehicle because of the officer's visual confirmation of the details of the tip").

CONCLUSION

¶ 15. We hold, under the totality of the circumstances involved in this case, that the information given by the citizen informant and the police officer's corroboration of the information before the investigatory stop were sufficiently reliable to provide the officer with a reasonable suspicion of criminal activity.

By the Court. — Judgment affirmed.

       Because Powers limits his challenge to the reasonable suspicion to support the investigative stop to the tip from the clerk, we will not discuss his failure to yield to the officer's show of authority when the officer attempted to stop Powers.

       It is not essential that the clerk actually saw Powers operate his truck in an erratic manner; improper driving is not an element of an OWI offense. "Although erratic driving may be evidence that the defendant is under the influence of an intoxicant, the statute 'does not require proof of an appreciable interference in the management of a motor vehicle.1" State v. Gaudesi, 112 Wis. 2d 213, 221, 332 N.W.2d 302 (1983). Because an OWI conviction does not require proof of erratic driving, proof of erratic driving is obviously not required for purposes of a reasonable suspicion.


author: DYKMAN, J. DEININGER, EJ.

text:
    Dawn Sukala and John Sukala, Plaintiffs-Appellants, v. Heritage Mutual Insurance Company and Western National Mutual Insurance Company, Defendants-Respondents.

    Court of Appeals

      No. 03-0173.

      Oral argument January 9, 2004.

    Decided June 17, 2004.

    2004 WI App 128
    (Also reported in 685 N.W.2d 809.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of D. James Weis of Habush

      Habush & Rottier, S.C., Rhinelander, and Virginia M. Antoine oí Habush Habush & Rottier, S.C., Milwaukee. There was oral argument by D. James Weis.

    On behalf of the defendant-respondent, Heritage Mutual Insurance Company, the cause was submitted on the brief of Mark A. Klinner and Michael J. Roman of Zalewski, Klinner & Kramer, LLP, Wausau. There was oral argument by Michael J. Roman.

    On behalf of the defendant-respondent, Western National Mutual Insurance Company, the cause was submitted on the brief of Nadine I. Davy of Anderson, O'Brien, Bertz, Skrenes & Golla, Stevens Point. There was oral argument by Nadine I. Davy.

    Before Deininger, RJ., Dykman and Higginbotham, JJ.

       Petitions to review granted 9-1-04.

   DYKMAN, J.

¶ 1. Dawn and John Sukala (the Sukalas) appeal from an order denying them relief under Wis. Stat. § 806.07(l)(h) (2001-02). They assert that the trial court erroneously exercised its discretion when it found that a change in case law did not justify opening the judgment. We agree and reverse.

FACTS

¶ 2. Because our review is limited to the trial court's denial of relief under Wis. Stat. § 806.07(l)(h), we need not consider the merits of the underlying insurance claims in this case. We set forth only those facts relevant to the § 806.07(l)(h) motion, which focuses primarily on the procedural history of this case and supreme court decisions rendered after the trial court entered judgment. For an explanation of the facts of the underlying insurance claims see Sukala v. Heritage Mutual Insurance Co., 2000 WI App 266, 240 Wis. 2d 65, 622 N.W.2d 457 (Sukala I).

¶ 3. The Sukalas sued respondents to recover under automobile insurance policies with underinsured motorist (UIM) coverage. The UIM coverage contained reducing clauses. On April 14, 1999, the trial court entered an order and judgment in favor of the insurers. The Sukalas appealed, raising two issues: (1) whether Heritage Mutual Insurance Company (Heritage) complied -with the notification requirements in Wis. Stat. § 631.36(5); and (2) whether the statute permitting reducing clauses, Wis. Stat. § 632.32(5)(i), was constitutional. After the parties filed their briefs, the supreme court decided Dowhower v. West Bend Mutual Insurance Co., 2000 WI 73, 236 Wis. 2d 113, 613 N.W.2d 557. There, the supreme court held that § 632.32(5)(i) was constitutional and that:

an insurer may reduce payments made pursuant to a UIM policy by amounts received from other legally responsible persons or organizations, provided that the policy clearly sets forth that the insured is purchasing a fixed level of UIM recovery that will be arrived at by combining payments made from all sources.

Id., ¶ 33. We allowed the parties in Sukala I to address the issue of policy ambiguity at oral argument. We concluded that Dowhower disposed of the Sukalas' constitutionality claims. We held that the policy was unambiguous. Accordingly, we affirmed the trial court's decision. The supreme court denied the Sukalas' petition for review on April 5, 2001.

¶ 4. While we were considering Sukala I, Badger Mutual Insurance Co. v. Schmitz was also being litigated. Badger Mut. Ins. Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223. Schmitz raised the issue of whether a UIM reducing clause was unenforceable because it rendered UIM coverage ambiguous or illusory. The trial court held that the reducing clauses were unenforceable because the policy language did not clearly set forth the insurer's right to reduce liability. On appeal, we relied on our decision in Sukala I and held that the policy was enforceable because the reducing clause was unambiguous. Accordingly, we reversed the trial court's order.

¶ 5. The supreme court granted a petition for review in Schmitz on October 23, 2001. It reversed on July 10, 2002, concluding that a reviewing court must examine "an unambiguous reducing clause in the context of the entire policy to determine whether the coverage provided is understandable and clear. If the coverage provided is misleading and unclear, the policy is ambiguous, or worse, and the clause reducing UIM coverage is not enforceable." Schmitz, 255 Wis. 2d 61, ¶ 49. In reaching this conclusion, the supreme court addressed Sukala I, where we concluded:

[T]hat under Dowhower and the declared public policy of the legislature in Wis. Stat. § 632.32(5)(i), UIM reducing clauses complying with § 632.32(5) (i) cannot render UIM coverage "illusory." Once we have concluded that the UIM provisions of a policy are unambiguous, as we have here, then our inquiry is at an end.

Sukala I, 240 Wis. 2d 65, ¶ 20. The supreme court considered this reasoning ambiguous because

the Sukala court shifted terms, moving from the reducing clause to "the UIM provisions" of the policy, although the two could easily be read as one and the same. A policy in which all "the UIM provisions" are unambiguous is different from a policy in which only the reducing clause is unambiguous. In any event, the concluding sentence implies that once the reducing clause is found to be unambiguous, the inquiry is at an end. That is incorrect because Dowhower contemplates consideration of the entire policy.

Schmitz, 255 Wis. 2d 61, ¶ 42 (citations omitted).

¶ 6. In this case, Sukala II, the trial court held a hearing concerning the developments in case law since it entered a judgment validating the reducing clauses in the Sukalas' policies. In its oral decision, the court compared the facts here to those in Mullen v. Coolong, 153 Wis. 2d 401, 406, 451 N.W.2d 412 (1990) (Mullen II) and reasoned that the inequity in Mullen II derived from contrary constructions of the same policy. It also recognized that the Sukalas had signed a release for Western National Mutual Insurance Company (Western) and a stipulated dismissal for Heritage. It noted that seven months passed between the time the supreme court denied review in Sukala I and granted review in Schmitz. Finally, the trial court reasoned that the supreme court would have explicitly overruled Sukala I if its result was incorrect. The court explained,

[I]t becomes very difficult for me to say that the judgment ought to be reopened and find some extraordinary circumstance, other than the fact that there's a new precedent in the Court of Appeals. And I think that for me to reopen simply on the ground that there's a new precedent... or new language interpreting the precedent is inappropriate.

The trial court concluded that no extraordinary circumstances justified relief and denied the Sukalas' Wis. Stat. § 806.07(l)(h) motion. The Sukalas appeal,

STANDARD OF REVIEW

¶ 7. Whether to grant relief from a judgment under Wis. Stat. § 806.07(l)(h) lies within the discretion of the trial court. Mullen, 153 Wis. 2d at 406. We will reverse only if the trial court erroneously exercised its discretion. Id. "The term 'discretion' contemplates a process of reasoning which depends on facts that are in the record or reasonably derived by inference from the record and yields a conclusion based on logic and founded on proper legal standards." Id. A trial court erroneously exercises its discretion when it bases a decision on an error of law. State v. Brunton, 203 Wis. 2d 195, 202, 552 N.W.2d 452 (Ct. App. 1996).

DISCUSSION

¶ 8. Wisconsin Stat. § 806.07 authorizes the court to relieve a party from a judgment, order, or stipulation in certain circumstances. Paragraph 806.07(1)(h) is a catch-all provision that permits relief for any "reasons justifying relief from the operation of the judgment." It "gives the trial court broad discretionary authority and invokes the pure equity power of the court." Mullen II, 153 Wis. 2d at 407. Courts construe this statute "to achieve a balance between the competing values of finality and fairness in the resolution of disputes." Id.

¶ 9. "There is no simple rule to guide the court in deciding whether or not to sunburst or how to sunburst a decision." Harmann v. Hadley, 128 Wis. 2d 371, 379, 382 N.W.2d 673 (1986). To start, we turn to Mullen II for some guidance on when relief under Wis. Stat. § 806.07(l)(h) is appropriate. In Mullen II, the supreme court denied Mullen's petition for review and then "accepted certification of [Nicholson v. Home Ins. Co.] which posed the identical question of law raised by Mullen in her petition for review." Mullin II at 404. In Nicholson, the court specifically overruled Mullen I. Id. Mullen, apparently unaware that Nicholson was pending, settled her claim and stipulated to dismissing the action. Id. After Nicholson was released, Mullen moved for relief from the stipulated dismissal order and reentry of judgment pursuant to § 806.07. Id. The supreme court affirmed the trial court's decision to grant relief because Mullen was "a victim of circumstance." Id. at 408. It reasoned that it "reached the precise result [in Nicholson that] Mullen advocated in her petition for review in Mullen I." Id. It concluded that "[u]nder these unique facts, the result reached by the trial court [was] not an abuse of discretion." Id.

¶ 10. Since then, the court has clarified its ruling in Mullen II:

[T]his court did not promulgate a two-part test under which a plaintiff must show that this court denied review of an issue at the same time an identical issue was before this court in another case. Mullen II merely set forth one example of an appropriate exercise of discretion and did not, in any way, limit the circuit court's authority to grant relief pursuant to sec. 806.07, Stats.

Schwochert v. American Family Mut. Ins. Co., 172 Wis. 2d 628, 634, 494 N.W.2d 201 (1993) (citations omitted).

¶ 11. The respondents correctly assert that the facts of this case are not the same as those in Mullen II. They distinguish Mullen II because the petitions for review in Mullen I and Nicholson were contemporaneously pending before the supreme court and posed identical issues. They note that seven months passed between the supreme court's denial of the Sukalas' petition for review and the time it granted review in Schmitz. They argue that Schmitz did not present the same arguments as Sukala I. They also contend that the Sukalas knew that Schmitz was pending before the supreme court when they executed their releases. The respondents urge us to consider the fact of this case to be more analogous to Schwochert v. American Family Mutual Insurance Co., 166 Wis. 2d 97, 479 N.W.2d 190 (Ct. App. 1991), aff'd, 172 Wis. 2d 628, 494 N.W.2d 201 (1993), and Brown v. Mosser Lee Co., 164 Wis. 2d 612, 476 N.W.2d 294 (Ct. App. 1991), where we denied relief under Wis. Stat. § 806.07(l)(h).

¶ 12. While the facts here are not exactly the same as those in Mullen II, the supreme court has clarified that such similitude is not necessary for relief to be warranted under Wis. Stat. § 806.07(1)(h). Schwochert, 172 Wis. 2d at 634. Like Mullen, the Sukalas were victims of circumstance. The inequity that occurred in Mullen II occurred here: The supreme court granted review in Schmitz seven months after denying review of the same issue in Sukala I. Such a time frame is close enough to the scenario in Mullen II. Moreover, the supreme court overruled Sukala I in Schmitz, albeit implicitly. See Dowhower v. Marquez, 2004 WI App 3, ¶ 20, 268 Wis. 2d 823, 674 N.W.2d 906 (Sukala I overruled by Schmitz). Regardless, relief under § 806.07(l)(h) is not contingent on the supreme court overruling the case in which movant's judgment was rendered. The crux of our inquiry is whether fairness mandates opening the judgment, despite the compelling justifications for protecting the finality of the judgment. Those facts are present here, and bring the Sukalas within the Mullen II exception to the finality of judgments. Accordingly, we conclude that the trial court erroneously exercised its discretion by denying the Sukalas' motion.

¶ 13. Finally, Western contends that Wis. Stat. § 806.07(1)(h) does not authorize opening the release the Sukalas executed regarding their claims against them. It asserts that § 806.07(1) permits a court to relieve a party from a "judgment, order or stipulation," but not from a release of claims. It argues that a release is an enforceable contract between the parties, citing Continental Casualty Co. v. Wisconsin Patients Compensation Fund, 164 Wis. 2d 110, 117, 473 N.W.2d 584 (Ct. App. 1991). It also argues that the Sukalas must return the consideration, $75,999.82, that Western paid to them before the agreement would be voided. The Sukalas assert that Western waived this issue by not raising it in the trial court.

¶ 14. After reviewing the transcript of the trial court hearing, we conclude that Western has not waived its argument that Wis. Stat. § 806.07(1)(h) does not provide for relief from a release. However, we are not persuaded by this argument. We treat releases and stipulations as contracts and construe them to give effect to the parties' intentions. Compare Gielow v. Napiorkowski, 2003 WI App 249, 268 Wis. 2d 673, 673 N.W.2d 351, review denied, 2004 WI 20, 269 Wis. 2d 200, 675 N.W.2d 806 (Wis. Feb. 24, 2004) (No. 03-0050) with State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶ 13, 257 Wis. 2d 421, 651 N.W.2d 345. Section 806.07(1) authorizes the court to relieve a party "from a judgment, order or stipulation." We can ascertain no valid justification for protecting a release from being opened while stipulations are subject to equitable relief. Both methods are commonly used to terminate litigation. Therefore, for the purposes of a motion under § 806.07(1), we consider a release and a stipulation to dismiss a claim one and the same. We need not consider the effect of the nearly $76,000 Western has paid the Mullins until they recover less than that amount from Western.

By the Court. — Order reversed.

DEININGER, EJ.

¶ 15. (dissenting). I cannot join the majority's reasoning or result. I believe the majority pays only lip service to the standard for our review of the trial court's exercise of discretion and, instead, exercises its own in directing that the Sukalas' Wis. Stat. § 806.07 (2001-02) motion be granted. In addition, the majority misapplies the supreme court's holdings in Mullen v. Coolong, 153 Wis. 2d 401, 451 N.W.2d 412 (1990) (Mullen II), and Schwochert v. American Family Mutual Insurance Co., 172 Wis. 2d 628, 494 N.W.2d 201 (1993), and it overstates the impact of Badger Mutual Insurance Co. v. Schmitz, 2002 WI 98, 255 Wis. 2d 61, 647 N.W.2d 223, on our decision in Sukala v. Heritage Mutual Insurance Co., 2000 WI App 266, 240 Wis. 2d 65, 622 N.W.2d 457 (Sukala I). Finally, the majority's disposition of this appeal seriously undermines the finality of judgments in Wisconsin courts because losing parties will now arguably have grounds to seek relief from final judgments whenever a subsequent appellate decision casts doubt on a prior outcome.

¶ 16. The majority relies heavily on Mullen II in support of the result it reaches. The supreme court explained in Mullen II that the standard for appellate review of a trial court's order granting or denying relief from a judgment under Wis. Stat. § 806.07 is as follows:

An order granting a motion for relief under sec. 806.07, Stats., will not be reversed unless there has been a clear abuse of discretion. Shuput v. Lauer, 109 Wis. 2d 164, 177, 325 N.W.2d 321 (1982). The term "discretion" contemplates a process of reasoning which depends on facts that are in the record or reasonably derived by inference from the record and yields a conclusion based on logic and founded on proper legal standards. Id. at 177-78.

Mullen II, 153 Wis. 2d at 406. The majority does not tell us in what manner the trial court's discretionary decision to deny the Sukalas relief was deficient. That is, the majority identifies no error of law or fact in the trial court's ruling, and neither does it assert that the trial court failed to employ a logical reasoning process in reaching its decision.

¶ 17. The majority is not alone in this. I, too, cannot find fault with the trial court's reasoning. The court applied the proper legal standard. It stated that it had read Mullen II and concluded that it must determine "if there was an injustice done" to the Sukalas arising from the supreme court's denial of their petition for review and subsequent issuance of its decision in Schmitz. See id. at 407 (noting that relief under Wis. Stat. § 806.07(1)(h) is warranted " 'whenever such action is appropriate to accomplish justice'" (citation omitted)). At another point in its oral ruling, the court referred to the need for there to be "unique and extraordinary" circumstances in order to justify granting relief under § 806.07(1)(h). This is also a correct statement of applicable law. See Brown v. Mosser Lee Co., 164 Wis. 2d 612, 616, 618-19, 476 N.W.2d 294 (Ct. App. 1991). Finally, the trial court also expressed its awareness that it was required to balance any unfairness toward the Sukalas against the competing value of "finality ... in the resolution of disputes." Mullen II, 153 Wis. 2d at 407; Brown, 164 Wis. 2d at 616.

¶ 18. The trial court also considered the relevant facts in this case. The court took note of the fact that the Sukalas' litigation with the two UIM insurers had ended with the supreme court's denial of their petition for review some seven months before the court granted review in Schmitz. The trial court concluded, in my estimation, correctly, that this fact removed the present case from the type of "unique and extraordinary" circumstances that existed in Mullen II. The trial court further observed, also correctly, as I discuss further below, that unlike what had occurred in Mullen II, the supreme court in Schmitz neither expressly overruled Sukala I nor suggested that Sukala I had been incorrectly decided.

¶ 19. Finally, the trial court, in synthesizing the applicable legal standard with the facts before it, employed a logical reasoning process to reach a readily affirmable conclusion, which the court summarized as follows:

I just can't imagine that if [the supreme court] actually felt that that decision [Sukala 7] was erroneous when they were doing [Schmitz], that they wouldn't have done more than say that one sentence of the language used in Sukala was incorrect; and it's that absence of their reference to this as something extraordinary in error that tells me they didn't believe that it was; and without them making a finding that specifically overruled that case or specifically stated the decision in this case was in error in light of the subsequent decision, it becomes very difficult for me to say that the judgment ought to be reopened and find some extraordinary circumstance, other than the fact that there's a new precedent....

¶ 20. In place of any legitimate criticism of the trial court's exercise of discretion, the majority simply substitutes its own assessment of the present facts, finding them "close enough to the scenario in Mullen II" to justify granting the Sukalas relief from the final judgment. Majority at ¶ 12. The majority virtually acknowledges that it has independently weighed the competing values at stake in this case when it explains that the "crux of our inquiry is whether fairness mandates opening the judgment." Id. (emphasis added). But, of course, that is not what appellate judges are supposed to do when reviewing a trial court's discretionary ruling:

Motions under § 806.07 Stats., are reviewed for erroneous exercise of discretion. Nelson v. Taff, 175 Wis. 2d 178, 187, 499 N.W.2d 685, 689 (Ct. App. 1993). Therefore, we are not deciding whether we would have granted Kovalic's motion, but whether the trial court's decision was within the wide band of decisions that a reasonable trial court could have made.
The limited scope of our review of discretionary rulings is well settled. Generally, "[w]e will not reverse a discretionary determination by the trial court if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the court's decision." Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987). Indeed, "[bjecause the exercise of discretion is so essential to the trial court's functioning, we generally look for reasons to sustain discretionary determinations." Schneller v. St. Mary's Hosp., 155 Wis. 2d 365, 374, 455 N.W.2d 250, 254 (Ct. App. 1990), aff'd, 162 Wis. 2d 296, 470 N.W.2d 873 (1991).

Kovalic v. DEC Int'l, 186 Wis. 2d 162, 166, 519 N.W.2d 351 (Ct. App. 1994).

¶ 21. In addition to failing to employ the proper standard of review, the majority misstates the facts of Mullen II and misapplies its holding. The majority asserts that in Mullen II, "the supreme court denied Mullen's petition for review and then 'accepted certification of [Nicholson].'" Majority at ¶ 9. That sequence of events would concededly bring the Mullen II facts closer to those in this case, but that is not what happened in Mullen II. Rather, as the supreme court explained, it had "already accepted certification of a case [Nicholson] which posed the identical question of law raised by Mullen in her petition for review" some nine months before denying Mullen's petition. Mullen II, 153 Wis. 2d at 404. It is that sequence of events that the supreme court in Mullen II deemed the "determinative fact in this case," i.e., "we denied a petition for review in Mullen I at the very same time when the same issue was before us in Nicholson." Id. at 408.

¶ 22. The majority cites Schwochert for the proposition that the supreme court's denial of review of an issue, when the identical issue is pending before it in another case, is not a prerequisite for relief under Wis. Stat. § 806.07(1)(h). Majority at ¶¶ 10, 12 (citing Schwochert, 172 Wis. 2d at 634). I agree that other "unique and extraordinary" facts may permit a trial court to properly grant relief under § 806.07(l)(h), hut further development of the law after a given case is concluded is, if anything, a frequent and routine occurrence. See Brown, 164 Wis. 2d at 623 (noting that it is "neither unique nor extraordinary" for a case to be decided "based on precedent that is later overruled," which "has never been considered grounds for reopening preexisting judgments").

¶ 23. Moreover, the trial court in this case, unlike the trial court in Schwochert, did not labor under the misimpression that only facts identical to those in Mullen II could be the basis for relief. See Schwochert, 172 Wis. 2d at 633. Rather, the trial court here concluded that, because the Sukalas' litigation had ended several months before the supreme court even chose to grant review in Schmitz, and because Schmitz merely criticized certain language in Sukala I hut neither overruled it nor disputed the correctness of its outcome, the present facts were simply too far removed from those in Mullen II to be deemed a unique and extraordinary circumstance that would outweigh the value in the finality of the present judgment.

¶ 24. Although it relies on the unremarkable explanation in Schwochert that relief under Wis. Stat. § 806.07(1)(h) is not conditioned on presenting facts identical to those in Mullen II, the majority neglects to relate that the supreme court in Schwochert actually upheld the trial court's denial of relief, notwithstanding the trial court's misconception of the applicable law. The court explained that although it had subsequently withdrawn "dictum" contained in its earlier Schwochert decision, it had not overruled the earlier decision, a contention it concluded was "an essential component" of the Schwocherts' claim for relief. Schwochert, 172 Wis. 2d at 634. As the trial court here correctly concluded, the Sukalas' claim suffers from a similar infirmity.

¶ 25. The majority maintains that the supreme court "implicitly" overruled Sukala I in Schmitz, citing in support our opinion in Dowhower v. Marquez, 2004 WI App 3, ¶ 20, 268 Wis. 2d 823, 674 N.W.2d 906. Majority at ¶ 12. The citation to Dowhower is somewhat disingenuous, however, in that we neither expressly concluded in Dowhower that Sukala I had been overruled, nor did we provide any basis for so concluding. In fact, we relied on Sukala I in Dowhower for the proposition that "[a] declarations page is intended to provide a summary of coverage and cannot provide a complete picture of coverage under a policy," while noting in our citation to Sukala I, in an appositive providing subsequent case history, "overruled on other grounds by Schmitz." Dowhower, 268 Wis. 2d 823, ¶ 20. With all due respect to the current majority and that in Dowhower, I do not feel bound by the cited appositive and find the trial court's analysis of what the supreme court did in Schmitz with respect to Sukala I much closer to the mark.

¶ 26. To be sure, in the passage from Schmitz quoted by the majority at ¶ 5, the supreme court criticized a sentence in our opinion in Sukala I as being "ambiguous and misleading." Schmitz, 255 Wis. 2d 61, ¶ 42. It did so, however, only after "[i]n essence" agreeing with our earlier analysis in Sukala I. Id. Nowhere in Schmitz did the supreme court suggest that, beyond our unfortunate "shift[] [in] terms" in the last sentence of paragraph 20 in Sukala I, we had improperly analyzed the policies at issue or reached an erroneous result. Quite simply, the supreme court has not overruled Sukala I, either in Schmitz or since, and we have no power to do so. " 'Only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.'" Sukala I, 240 Wis. 2d 65, ¶ 20 (citing Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997)).

¶ 27. The contrast between the supreme court's subsequent action on "the identical issue" litigated in Mullen I, and what the supreme court said in Schmitz about Sukala I, was a major consideration in the trial court's decision to deny the Sukalas' motion for relief. The result in Mullen I would clearly have been different had the supreme court granted review and decided that case together with Nicholson. See Mullen II, 153 Wis. 2d at 408 ("[W]e reached [in Nicholson] the precise result Mullen advocated in her petition for review in Mullen I."). The same cannot be said in this case: Had the supreme court granted review of Sukala I, and decided it together with or after Schmitz, the result might have changed, but it also might not have (see footnote 4). Thus, the present facts are for a second reason very different from the circumstances present in Mullen II, and they are much closer to those in Schwochert, 172 Wis. 2d at 636-37 (affirming denial of motion for relief where prior appellate decision had not been overruled) and Kovalic, 186 Wis. 2d at 164-67 (same, rejecting notion "that if the law changes, all cases decided under the prior law may be relitigated" because "such a rule would destroy the finality of many judgments").

¶ 28. I do not doubt that the supreme court's call in Schmitz for "crystal clarity" in insurance policies containing UIM reducing clauses would have strengthened the Sukalas1 arguments for invalidating the reducing clauses in these two policies on ambiguity grounds. See Schmitz, 255 Wis. 2d 61, ¶ 46. But this fact alone not only fails to justify reopening the final judgment in this case, it also demonstrates the slipperiness of the slope on which the majority's disposition places us. Suppose, for example, that the Sukalas had obtained the relief the majority grants them because of Schmitz, and that they then prevailed in obtaining a judgment in their favor because the reducing clauses at issue here failed the Schmitz "crystal clear" test. Suppose further that the supreme court denied the present insurers' petitions for review before it accepted review of our decision in Folkman v. Quamme, 2002 WI App 237, 257 Wis. 2d 864, 652 N.W.2d 406, (Folkman I), rev'd, 2003 WI 116, 264 Wis. 2d 617, 665 N.W.2d 857 (Folkman II). Under the majority's rationale, would a court not be obliged to grant the insurers relief from the final judgment adverse to them after the supreme court issued its decision in Folkman II, in which the court explained that its "crystal clear" language in Schmitz had had the unintended effect of "alter[ing] the analytical focus" of lower court decisions, clarifying that Schmitz did "not demand perfection in policy draftsmanship"? Folkman II, 264 Wis. 2d 617, ¶¶ 30-31. In other words, will this case ever end, regardless of the number of final judgments that are entered or opportunities for appellate review that are exhausted, so long as the law regarding UIM clauses continues to evolve?

¶ 29. The foregoing hypothetical is not as farfetched as it might first appear. We recently concluded in Gohde v. MSI Insurance Co., 2004 WI App 69, ¶¶ 1, 4-7, 272 Wis. 2d 313, 679 N.W.2d 835, that a policy containing a UIM reducing clause was not ambiguous based on Folkman II, having previously concluded it was ambiguous under Schmitz, after still earlier concluding it was valid under Sukala I. In Gohde, however, unlike here, our two earlier conclusions never terminated the litigation because the supreme court twice granted review and remanded to us for further consideration in light of first Schmitz and then Folkman II. Id. Under the majority's disposition, the Sukalas and their UIM insurers will now also have the policies at issue examined under Schmitz and Folkman II, notwithstanding the fact that the circuit court judgment in this case was entered on April 14, 1999, and became final on April 5, 2001, when the supreme court denied the Sukalas1 petition for review.

¶ 30. This litigation was thus concluded more than three months before this court decided Schmitz in July 2001, and almost seven months before the supreme court agreed to review our Schmitz decision on October 23, 2001. It is now 2004, and unless the supreme court accepts review and reverses the majority's disposition, the parties will go back to the circuit court to argue whether that court's 1999 judgment in favor of the insurers was correct in light of a series of appellate decisions issued years after appellate review of the 1999 judgment had concluded. Not only will the parties be required to argue, and the circuit court to consider, the effect of the 2002 Schmitz decision and its 2003 clarification in Folkman II, but also the possible effect of several published appellate decisions that have followed (and more that may yet follow). See, e.g., Gohde, 2004 WI App 69, 272 Wis. 2d 313, 679 N.W.2d 835; Van Erden v. Sobczak, 2004 WI App 40, ¶¶ 21-32, 271 Wis. 2d 163, 677 N.W.2d 718 (Van Erden II) (concluding that a policy with a reducing clause was not ambiguous under Folkman II, having previously reached the same result under Schmitz); Dowhower, 268 Wis. 2d 823, ¶¶ 1-3, 19-29 (concluding that a policy was ambiguous regarding UIM coverage reductions under Folkman II, just as the court had earlier concluded under Schmitz).

¶ 31. As the varying outcomes in Gohde, Van Erden II and Dowhower demonstrate, it is far from certain that a different result will be reached in this case now that the present judgment has been set aside because of the supreme court's comments in Schmitz regarding Sukala I. As I have explained, that makes this a very different case than Mullen II, even if one could conclude, as the majority does, that the supreme court's denial of a petition for review seven months before accepting a similar case is "close enough" to the simultaneous denial of review while an identical issue is pending to entitle the Sukalas to the same relief as granted to Shirley Mullen.

¶ 32. Regardless of whether this decision is published, as the majority recommends, the result the majority reaches will not go unnoticed by those involved on both sides of the much-litigated issue of reducing clause ambiguity. It will not be surprising, therefore, if numerous motions to reopen are filed, seeking to obtain for a disappointed litigant the perceived benefit of newly decided case law. Thus, I believe that many judgments in Wisconsin that were once thought to be final will be much less so after today. For this reason, and because I cannot conclude that the trial court erred in determining that "unique and extraordinary" circumstances are not present that outweigh the value in the finality of judgments, I respectfully dissent.

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

       "Sunbursting" is the "technique known as prospective overruling... to soften or limit the impact of a newly announced rule. State v. Picotte, 2003 WI 42, 43, 261 Wis. 2d 249, 661 N.W.2d 381. The term derives from Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358 (1932), where the court limited its decision to future conduct.

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

       In Kovalic v. DEC International, 186 Wis. 2d 162, 519 N.W.2d 351 (Ct. App. 1994), we affirmed the trial court's denial of a motion for relief from judgment. We explained that "[d]e-spite Kovalic's assertions of extraordinary circumstances, we conclude that Kovalic's motion was nothing more than an attempt to relitigate his previous appeal. Despite his arguments to the contrary, Kovalic has shown at best that the law has changed, and that he now wants to take advantage of those changes." Id. at 167. Under the standard of review we espoused in Kovalic, and for much the same reason we cited there, I would affirm the denial of the Sukalas' motion.

       The supreme court set out the standard for its review in the second paragraph of Schwochert v. American Family Mutual Insurance Co., 172 Wis. 2d 628, 494 N.W.2d 201 (1993): " 'On appeal from an order denying a motion for relief from a judgment, the circuit court's decision will not be reversed unless there has been a clear abuse of discretion.'" Id. at 630 (citation omitted). In each of the precedents under discussion, the end result of appellate action was the affirmance of the trial court's exercise of discretion in granting or denying relief under Wis. Stat. § 806.07(1): Schwochert, 172 Wis. 2d 628, 636-37 (affirming trial court's denial of relief); Mullen v. Coolong, 153 Wis. 2d 401, 411, 451 N.W.2d 412 (1990) (Mullen II) (reversing our reversal of, and thus affirming, the trial court's granting of relief); Kovalic, 186 Wis. 2d 162, 171 (affirming trial court's denial of relief); Brown v. Mosser Lee Co., 164 Wis. 2d 612, 623, 476 N.W.2d 294 (Ct. App. 1991) (same). This does not mean, of course, that trial courts may do anything they please when acting on motions for relief under § 806.07, regardless of the law or facts, but it does show that reversals of discretionary decisions are more the exception than the rule, owing in large measure to a very deferential standard of appellate review. See State v. McConnohie, 113 Wis. 2d 362, 370, 334 N.W.2d 903 (1983) (" '[T]o be invested with discretion means that the trial judge has what might be termed a limited right to be wrong in the view of the appellate court, without incurring reversal.'" (citation omitted)).

       The supreme court's criticism of the language in paragraph 20 of Sukala I was that it incorrectly suggested that if a reducing clause itself is unambiguous, no inquiry is required regarding whether ambiguity is created by the "entire policy," taken as a whole. Schmitz, 255 Wis. 2d 61, ¶ 42. In Sukala I, however, we examined various features of the policies at issue before concluding that both were unambiguous with respect to the reduction of UIM coverage limits for certain payments from other sources. See Sukala v. Heritage Mut. Ins. Co., 2000 WI App 266, ¶¶ 9-14, 240 Wis. 2d 65, 622 N.W.2d 457 (Sukala I). This perhaps explains why the supreme court in Schmitz criticized the imprecise language in one sentence of our opinion rather than rejecting our overall analysis or result.


author: DEININGER, PJ.

text:
    State of Wisconsin ex rel. Kim J. Barksdale, Petitioner-Appellant, v. Jon Litscher and Fred Figueroa, Respondents-Respondents.
    Court of Appeals

      No. 03-0841.

      Submitted on briefs October 14, 2003.

    Decided June 17, 2004.

    2004 WI App 130
    (Also reported in 685 N.W.2d 801.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Kim Barksdale, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the brief oí Bruce D. Huibregtse and Christopher T. Sundberg of Stafford Rosenbaum LLP, Madison.
    Before Deininger, PJ., Dykman and Higginbotham, JJ.
   DEININGER, PJ.

¶ 1. Kim Barksdale appeals an order dismissing his certiorari petition. He claims the circuit court erred in concluding that, under the doctrine of claim preclusion, the present action was precluded by a state court judgment entered in Tennessee. We conclude that the circuit court correctly determined that the Tennessee judgment bars Barksdale's current claims. Accordingly, we affirm the appealed order.

BACKGROUND

¶ 2. Barksdale, a Wisconsin inmate housed at a correctional facility in Whiteville, Tennessee, was involved in incidents for which he received two separate disciplinary reports. The disciplinary board at-Whiteville found Barksdale guilty, imposed punishment of two consecutive periods of thirty days in adjustment segregation, and made a referral for administrative segregation.

¶ 3. Barksdale pursued administrative appeals within the facility but they were unsuccessful. He then filed a Petition for Writ of Certiorari challenging various aspects of the disciplinary proceedings in the circuit court for Hardeman County, Tennessee. His petition named the Whiteville warden and two other Whiteville employees as respondents. While the Tennessee action was pending, Barksdale filed a Petition for Writ of Certiorari in Dane County seeking review of the same proceedings that resulted in his receiving sanctions for the two offenses at Whiteville. The Dane County petition named the Whiteville warden and the Secretary of the Wisconsin Department of Corrections (DOC) as respondents.

¶ 4. About four weeks after Barksdale filed his Dane County petition, the Tennessee court issued an order dismissing the Tennessee action because "a thirty-day sentence of disciplinary segregation does not impose an atypical and significant hardship in relation to ordinary incidents of prison life." Some two weeks later, the DOC certified and filed the administrative record of Barksdale's disciplinary proceedings at Whiteville in the Wisconsin case, but the return on the writ did not mention the Tennessee certiorari action. When the DOC secretary filed his substantive brief in response to Barksdale's Wisconsin petition, however, he included a certified copy of the Tennessee judgment and a copy of Barksdale's certiorari petition to the Tennessee court. Both the secretary and the warden argued that, under the doctrine of claim preclusion, the judgment in the Tennessee action precluded Barksdale's Wisconsin certiorari action.

¶ 5. The circuit court agreed and dismissed Barksdale's certiorari petition. He appeals the dismissal order.

ANALYSIS

¶ 6. Barksdale claims that the circuit court erred in dismissing his certiorari petition on claim preclusion grounds because the warden did not timely raise the issue of claim preclusion, thus waiving this defense, and because the requirements for applying claim preclusion are not present in this case. We disagree with both of Barksdale's contentions.

¶ 7. Generally, on an appeal of the circuit court's order granting or denying relief in a certiorari action, we review the underlying decision of the administrative agency, not that of the circuit court. See State ex rel. Sprewell v. McCaughtry, 226 Wis. 2d 389, 393, 595 N.W.2d 39 (Ct. App. 1999). Here, however, the dispositive issues do not involve the correctness of the administrative proceedings and determination, but the interpretation of the rules of civil procedure and the application of the claim preclusion doctrine, issues that first arose in the circuit court. Accordingly, it is the decision of the circuit court to dismiss Barksdale's petition without reaching its merits that is before us. Whether the circuit court correctly interpreted the procedural statutes and applied the doctrine of claim preclusion are questions of law that we review de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997) (statutory interpretation); Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995) (claim preclusion).

¶ 8. The warden initially moved to dismiss Barksdale's Wisconsin certiorari petition and to quash the writ on the grounds that (1) the petition was untimely, (2) Barksdale had not shown he had exhausted administrative remedies, and (3) the petition failed to state a claim against the warden. The circuit court denied the warden's motion and directed him to address the merits of Barksdale's claims of error in the administrative proceedings. The warden then raised the issue of claim preclusion for the first time when he filed his substantive brief, some nine months after Barksdale had filed his Wisconsin petition.

¶ 9. Barksdale argues that this was too late to raise a claim preclusion defense because, under Wis. Stat. § 802.06(7) (2001-02), the defense was required to be raised in the motion to dismiss that the warden had previously filed. Section 802.06(7) provides as follows:

A party who makes a motion under this section may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this section but omits therefrom any defense or objection then available to the party which this section permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in sub. (8)(b) to (d) on any of the grounds there stated.

(Emphasis added.) Barksdale notes, correctly, that the defense of claim preclusion (or "res judicata") is among those permitted to be raised by motion under § 802.06(2)(a). The flaw in Barksdale's argument, however, is that claim preclusion is also one of the defenses excepted from the waiver rule by the language we have emphasized above.

¶ 10. Under Wis. Stat. § 802.06(8)(b), the defense of claim preclusion "may be made ... by motion before entry of the final pretrial conference order." Barksdale would have us ignore this provision because certiorari proceedings are specifically excluded from the applicability of Wis. Stat. § 802.10, which, among other things, authorizes a "pretrial conference" in most other civil actions. See § 802.10(1). In Barksdale's view, because "pretrial conferences" are not conducted in certiorari proceedings, the exception in § 802.06(8) (b) that permits a motion raising claim preclusion to be filed at any time "before entry of the final pretrial conference order" should not apply in certiorari. Thus, according to Barks-dale, the warden irrevocably waived the defense of claim preclusion by virtue of § 802.06(7) when he failed to include that defense in his earlier motion under § 802.06(2).

¶ 11. We reject Barksdale's proffered interpretation as being unreasonable. In actions in which a"pretrial conference" is authorized and employed, the cutoff point for raising claim preclusion by motion is "the entry of the final pretrial conference order," regardless of whether a motion under Wis. Stat. § 802.06(2) was previously filed. See § 802.06(8)(b). The plain import of the rule is that a party must be allowed to raise claim preclusion by motion long after having unsuccessfully moved to dismiss on other grounds. It would thus be unreasonable to read the rule as creating no similar opportunity for respondents in certiorari proceedings, as Barksdale contends, simply because the court does not conduct a pretrial conference. We conclude it would be equally unreasonable, however, to hold that, because no "final pretrial conference order" will ever be entered, no time limit of any kind exists for a certiorari respondent, who, after having moved to dismiss on other grounds, wishes to raise a claim preclusion defense. Just as the rule plainly provides an exception for claim preclusion from the waiver rule of § 802.06(7), it also requires that the issue be brought to the court's attention before the court addresses the merits of the dispute.

¶ 12. Accordingly, we agree with the trial court that the only reasonable reading of Wis. Stat. § 802.06, as applied to certiorari proceedings, is that a party who has unsuccessfully moved to dismiss on other grounds may still seek dismissal grounded on claim preclusion at any time before the court has considered the merits of the petitioner's claims. Here, the warden did so by raising claim preclusion in his brief responding to the substance of Barksdale's petition, thereby avoiding a waiver of the issue, notwithstanding his earlier motion to dismiss.

¶ 13. Barksdale next argues that, even if the circuit court properly allowed the warden to raise claim preclusion as a defense, the defense must fail because all of the elements for claim preclusion are not present. The burden of proving claim preclusion is upon the party asserting its applicability. Alexopoulos v. Dakouras, 48 Wis. 2d 32, 37, 179 N.W.2d 836 (1970). There are three requirements for claim preclusion to apply:

In order for the earlier proceedings to act as a claim-preclusive bar in relation to the present suit, the following factors must be present: (1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and, (3) a final judgment on the merits in a court of competent jurisdiction.

Northern States Power Co., 189 Wis. 2d at 551.

¶ 14. The first question we must address is whether there is identity between the parties "or their privies" in the Tennessee and Wisconsin certiorari actions. "Privity exists when a person is so identified in interest with a party to former litigation that he or she represents precisely the same legal right in respect to the subject matter involved." Pasko v. City of Milwaukee, 2002 WI 33, ¶ 16, 252 Wis. 2d 1, 643 N.W.2d 72. Privity compares the interests of a party to a first action with a nonparty to determine whether the first action protected the interests of the nonparty. Id., ¶ 18. Here, the only Wisconsin party who was not a party in the Tennessee action was the DOC secretary. Barksdale named the Whiteville warden as a respondent in both actions, and the question thus becomes whether the warden and the secretary had identical legal interests to protect in both actions. We conclude that they did. The objective of the warden and the secretary in either case was to have the disciplinary actions taken against Barksdale at Whiteville upheld, and Barksdale has identified no interest of the secretary's that went unprotected in the Tennessee action.

¶ 15. The second requirement for claim preclusion to apply is that there be identity between the causes of action in both cases. Wisconsin applies a transactional approach to the determination of whether two suits involve the same cause of action. See Northern States Power Co., 189 Wis. 2d at 553. "[I]f both suits arise from the same transaction, incident or factual situation, [claim preclusion] generally will bar the second suit." Id. at 554 (quoting Pliska v. City of Stevens Point, 823 F.2d 1168, 1172 (7th Cir. 1987). The number of substantive theories that may be available to the plaintiff is immaterial if they all arise from the same factual underpinnings: all are barred from future consideration unless brought in the same action. Id. at 555 (quoting Restatement (Second) of Judgments § 24 cmt. a (1982)).

¶ 16. Here, of course, the same facts underlie each of the petitions. Barksdale bases both on the two citations he received at Whiteville and the subsequent disciplinary actions taken on them. Barksdale argues, however, that we may not conclude that the Tennessee and Wisconsin actions were identical because of certain issues he has raised in Wisconsin that he claims he could not have raised in Tennessee because the court there lacked "jurisdiction" to entertain them. These "Wisconsin-only" issues include Barksdale's claims that the Whiteville disciplinary proceedings violated certain DOC regulations and his federal constitutional right to equal protection of the laws. We reject Barksdale's attempt to differentiate the Tennessee and Wisconsin court actions on these bases.

¶ 17. First, as to his contention that he could not have asserted his claim in Tennessee that Whiteville staff violated DOC regulations governing prison disciplinary actions, even if the contention is accurate, it does not alter the fact that both actions arise from the very same transactions — the allegations of his misconduct at Whiteville and the administrative actions that resulted. Moreover, we note that these claims are equally unavailable to Barksdale in the Wisconsin action. Wisconsin Stat. § 301.21(2m)(b) provides that "[w]hile in an institution in another state covered by a contract under this subsection, Wisconsin prisoners are subject to all provisions of law and regulation concerning the confinement of persons in that institution under the laws of that state," and Wis. Stat. § 302.18(5) that "[a]ny person who is legally transferred by the department to a penal institution shall be subject to the same statutes, regulations and discipline as if the person had been originally sentenced to that institution." In other words, the legislature has mandated that, except for matters affecting the length of Barksdale's sentence, all "day-to-day" aspects of his custody and confinement (in particular, "the conditions of confinement and procedures used in the out-of-state institution") are to be governed by applicable Tennessee statutes and regulations. See State ex rel. Griffin v. Litscher, 2003 WI App 60, ¶¶ 13, 15, 261 Wis. 2d 694, 659 N.W.2d 455. Thus, any claim by Barksdale based on the Whiteville staffs alleged violation of Wisconsin statutes or regulations would be as unavailing in the instant action as they may have been in his Tennessee action.

¶ 18. We also find no merit in Barksdale's contention that he could not have raised a federal constitutional challenge on equal protection grounds to the imposition of sanctions for his misconduct in the Tennessee proceeding because the court there lacked "jurisdiction" over such a claim. Under Article VI of the U.S. Constitution, the Constitution "shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." Circuit courts in Tennessee, as in Wisconsin, are courts of general jurisdiction, empowered to entertain all causes or claims for which "jurisdiction is not conferred upon another tribunal." See Tenn. Code Ann. § 16-10-101 (2004). Tennessee circuit courts are specifically empowered to issue writs of certiorari, Tenn. Const. art. VI, § 10, and when doing so, they must determine whether an administrative decision was reached "in a constitutional or lawful manner." Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App. 1994).

¶ 19. Finally, we note that Wis. Stat. § 302.02(3t) specifically directs that courts sitting in the state and county where a Wisconsin inmate is housed are to have jurisdiction over disciplinary matters regarding the inmate:

For all purposes of discipline and for judicial proceedings, each institution that is located in another state and authorized for use under s. 301.21 and its precincts are considered to be in the county in which the institution is physically located, and the courts of that county shall have jurisdiction of any activity, wherever located, conducted by the institution.

Id. In sum, we can find no jurisdictional impediments to any arguably meritorious claim Barksdale may have wished to raise in his Tennessee certiorari petition challenging the imposition of sanctions for his misconduct at Whiteville. We are thus satisfied that the "identity of causes of action" requirement for applying claim preclusion is met on this record.

¶ 20. The third and final element of claim preclusion is a final judgment on the merits in the prior suit. That element is certainly present here, given that the Tennessee court entered a written order dismissing Barksdale's certiorari petition on the grounds that he was not entitled to the relief he sought. Barksdale notes, however, that the Tennessee court based its decision on the fact that the adjustment segregation he received as a sanction was not "an atypical and significant hardship in relation to the ordinary incidents of prison life," and thus, the sanction could be imposed without observing constitutional due process requirements. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Barksdale contends, and the warden concedes, that certiorari review in Wisconsin would require a court to go a step further and apply certain commonlaw standards for upholding an administrative action, even if no constitutional liberty interest were at stake. See, e.g., State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶ 15, 256 Wis. 2d 787, 650 N.W.2d 43, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Wis. Sep. 26, 2002) (No. 01-1804).

¶ 21. Barksdale advances two reasons why the fact that an in-state Wisconsin inmate may obtain more rigorous judicial review of discipline imposed for misconduct in a Wisconsin prison than what he obtained in the Tennessee court should preclude the dismissal of his Wisconsin petition on claim preclusion grounds. The first is that the different standards for reviewing prison disciplinary actions between Wisconsin and Tennessee constitutes an equal protection violation in that he is being treated differently than in-state Wisconsin prisoners without a rational basis for doing so. The second is that the different certiorari standards creates a "unique circumstance" that entitles him to pursue relief in a Wisconsin court as the petitioners in Curtis, who had also been housed at Whiteville, were permitted to do. Again, we disagree on both points.

¶ 22. As we have already noted, we have found nothing that would have precluded Barksdale from raising any federal constitutional claims, including an alleged equal protection violation, in his Tennessee certiorari action. And, if the Tennessee circuit court failed to adequately address his claims, or decided them incorrectly, Barksdale's proper remedy was to appeal the Tennessee decision, not to bring a new action in Wisconsin. A primary purpose of the claim preclusion doctrine is to require litigants to raise in a single action any and all grounds for relief stemming from a given transaction, rather than engaging in serial litigation on a one-issue-at-a-time basis. When the Tennessee action ended with a final judgment or order on the merits by a court with jurisdiction over Barksdale's claims, so did Barksdale's ability to pursue any further claims relating to the disciplinary sanctions he received. He cannot raise a new issue here and argue that it provides a basis to avoid the preclusive effect of the prior judgment.

¶ 23. Finally, our conclusion in Curtis, that the petitioners there should have access to a Wisconsin court to pursue certiorari review of discipline imposed at Whiteville, is of no assistance to Barksdale. The "unique circumstance" that existed in Curtis was that, because the petitioners had been transferred back to Wisconsin institutions before filing for judicial review in Tennessee, the Tennessee court refused to entertain their petitions. See Curtis, 256 Wis. 2d at ¶¶ 6, 12-13. Here, of course, Barksdale was not denied access to a Tennessee court to have his discipline reviewed. He received from the Tennessee court precisely what the Curtis petitioners were denied: judicial review of the merits of his claim that he had been improperly subjected to disciplinary sanctions. We conclude that the fact that Tennessee's law may differ from Wisconsin's regarding the scope or standards for review of such claims is not the equivalent of a denial of all access to a court in Tennessee. We thus also conclude that a "unique circumstance" is not present that would permit Barksdale to gain access to a second forum for litigating his claims.

CONCLUSION

¶ 24. For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

       After he filed this action in the circuit court, Barksdale was transferred to a Wisconsin correctional institution, but that fact is not relevant to our analysis or disposition.

       Only the Whiteville warden has filed a responsive brief on appeal. The DOC secretary informed us that he joins in the warden's arguments. We will refer in the remainder of this opinion to the respondents collectively as "the warden" except when it is necessary to differentiate the individual respondents.

       The warden does not argue on appeal that the court erred in denying his motion to dismiss and quash, which was largely grounded on procedural requirements set forth in the Wisconsin Prisoner Litigation Reform Act (WPLRA). See State ex rel. Speener v. Gudmandson, 2000 WI App 78, ¶ 16, 234 Wis. 2d 461, 610 N.W.2d 136 (concluding that Wisconsin inmates incarcerated at out-of-state facilities are not "prisoners" within the meaning of the WPLRA). We also note that the DOC secretary separately argued in the circuit court that he should be dismissed as a respondent because he "had no participation in finding Barksdale guilty of CCA-Whiteville rules." The court declined to dismiss the secretary from the action.

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

       We note that Barksdale asked for an extension of time to file his reply brief citing as a reason, among others, his need to address the warden's newly-raised claim preclusion defense. The court allowed Barksdale an additional month to file his reply brief, in which he countered the warden's assertion of claim preclusion.

       Barksdale received no loss of good time or extension of his mandatory release date as a result of the Whiteville disciplinary proceedings. He asserts, however, that he could have received these additional sanctions. The DOC has informed us in another appeal, however, that Wisconsin inmates cannot lose good time or have their mandatory release dates extended as a result of discipline imposed at out-of-state facilities. In its brief filed in State of Wisconsin ex rel. Myers v. Swenson, No. 03-2406, the department points to the fact that Wis. Stat. § 302.11(2)(a) authorizes a loss of good time or mandatory release extension for the violation of regulations of a "prison," but notes that out-of-state facilities are not among the "prisons" enumerated in Wis. Stat. § 302.01. It also notes that, under Wis. Admin. Code § DOC 303.01(1), "[t]he department may not discipline an inmate for an incident for which the inmate was disciplined in another jurisdiction." Thus, the department contends in Myers that an "out-of-state inmate has an advantage over the in-state inmate: his misconduct there will not prolong the duration of his time behind bars, but misconduct here will. The misconduct might result in his return to Wisconsin, perhaps to less desirable confines, but it will not extend the duration of confinement." We have no reason to doubt the department's contentions inasmuch as they are consistent with our analyses in State ex rel. Griffin v. Litscher, 2003 WI App 60, ¶¶ 13, 15, 261 Wis. 2d 694, 659 N.W.2d 455, and Speener, 234 Wis. 2d 461, ¶ 16, regarding the applicability of related Wisconsin statutes to Wisconsin inmates while housed outside the state. We thus also have no reason to question the correctness of the Tennessee court's reliance on the holding in Sandin v. Conner, 515 U.S. 472, 483-84 (1995), in disposing of Barksdale's petition.

       We note that our analysis in Curtis did not involve the doctrine of claim preclusion, but the DOC secretary's claim that, by virtue of Wis. Stat. § 302.02(3t), a Wisconsin court lacks competency to review the imposition of discipline on a Wisconsin inmate housed at an out-of-state facility. State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶¶ 11-12, 256 Wis. 2d 787, 650 N.W.2d 43, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Wis. Sep. 26, 2002) (No. 01-1804). The warden makes the same argument in this appeal as an alternative rationale for upholding the circuit court's dismissal of Barksdale's petition. Because we conclude that the court did not err in dismissing this action on claim preclusion grounds, we do not address the warden's alternative argument.