author: ANDERSON, EJ.

text:
    Kevin P. McKillip, Plaintiff-Appellant, v. Jeremy Bauman, Defendant, Guaranty National Insurance Company p/k/a Viking Insurance Company, Defendant-Respondent, Nathan H. Ohlfs and State Farm Fire and Casualty Company, Defendants-Co-Appellants.
    Court of Appeals

      No. 2004AP2489.

      Submitted on briefs May 16, 2005.

      Decided June 22, 2005.

    2005 WI App 165
    (Also reported in 702 N.W.2d 79.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael J. Kelly of Lloyd, Phenicie, Lynch, Kelly & Hotvedt, S.C., Burlington.
    On behalf of the defendants-co-appellants, the cause was submitted on the briefs of Thomas E. Goss, Jr. of Mueller, Goss & Possi, S.C., Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Frederick J. Smith of Peterson, Johnson & Murray, S.C., Milwaukee.
    Before Anderson, PJ., Brown and Snyder, JJ.
   ANDERSON, EJ.

¶ 1. Kevin E McKillip, Nathan H. Ohlfs and State Farm Fire and Casualty Company appeal from a circuit court order granting summary judgment in favor of Guaranty National Insurance Company p/k/a Viking Insurance Company and dismissing it from the case. There are two issues in this appeal. First, whether, by its terms, the insurance policy Guaranty National issued to Jeremy Bauman covers Ohlfs as a permissive user of one of Bauman's vehicles. We hold that it does not. Second, whether the financial responsibility statutes, Wis. Stat. ch. 344, mandate that Guaranty National's policy extend coverage to Ohlfs as a permissive user of one of Bauman's vehicles. We hold that they do not. Accordingly, we affirm the order of the circuit court.

FACTS

¶ 2. On March 23, 2003, Ohlfs was allegedly operating Bauman's 1996 Chevrolet Tahoe on McKillip's property when dry grass caught fire. The fire destroyed more than 14,000 of the trees in McKillip's stock. Bauman had allegedly given Ohlfs permission to drive the Tahoe, which he had purchased in August 2002. McKillip filed trespass and negligence actions against Bauman and Ohlfs and their respective automobile liability insurers.

¶ 3. Prior to the incident, Guaranty National had issued Bauman a "Named Operator" insurance policy with a non-owner endorsement as proof of financial responsibility, in compliance with Wisconsin's financial responsibility statutes, Wis. Stat. ch. 344 (2003-04). Bauman also received an "SR-22 Financial Responsibility Form."

¶ 4. The record copy of the "SR-22 Financial Responsibility Form" is very difficult to read. From what we can tell, the form contains two separate boxes for the insurer to check, one labeled "OWNER'S POLICY —applicable to the following described vehicles" and the other labeled "OPERATOR'S POLICY — applicable to any non-owned vehicle." Underneath the box marked "OWNER'S POLICY" is a box where the model year and trade name of each owned vehicle may be listed. Bauman's form does not list any specific vehicles, but rather states "owned and non-owned." The form states that it is in effect from December 1999 until it is cancelled.

¶ 5. On January 6, 2003, Guaranty National issued Bauman a renewal offer of coverage certifying dates of February 19, 2003, to August 19, 2003. The renewal notice provides in dark print, "This policy provides Liability coverage for only the named insured while driving owned and non-owned vehicles." The policy's "NON-OWNER ENDORSEMENT" states in "Part I — Liability," "We will pay damages for which you are legally liable because of bodily injury and/or property damage caused by a car accident arising out of the use of your insured car. We will settle any claim or defend any lawsuit which is payable under the policy." The "NON-OWNER ENDORSEMENT" goes on to provide: "As used in this Part, 'insured person' or 'insured persons' means you while you are using a non-owned car with permission of the owner." Finally, the endorsement sets forth the following pertinent definitions:

(8) 'Your insured car" means:
(A) A non-owned car which you are using with the permission of the owner;
(B) Any car of which you acquire ownership during the policy period. For coverage to apply under Part I — Liability coverage, you must, however, notify us within 14 days of its acquisition. Car Damage coverage will apply to the newly acquired car only if you ask us to provide such coverage and we agree to do so. You must pay any additional premium charges for coverage for the newly acquired car.
(15) "Non-owned. car" means a car not owned or leased by you; not including a car owned or leased by members of the household in which you reside.

¶ 6. Guaranty National filed a motion for summary judgment. Guaranty National argued that the definition of "your insured car" in the non-owner endorsement precludes coverage for McKdllip's claims. Guaranty National maintained that the policy would have only provided liability coverage for damages arising out of the car accident had Bauman notified Guaranty National of his acquisition of the vehicle. Guaranty National further asserted that the financial responsibility statutes do not "provide coverage for a permissive user of an insured's vehicle, such as [Ohlfs] in the case at bar."

¶ 7. McKillip, Ohlfs and State Farm responded that based on recent amendments to the financial responsibility statutes, coverage is mandated for both the named insured and permissive users of any vehicle the named insured owns. They also claimed that Guaranty National's policy must be read to extend coverage to permissive users of any vehicle Bauman owns.

¶ 8. The circuit court granted Guaranty National's motion for summary judgment and dismissed it from the case. The court explained that while the financial responsibility statutes, as amended, required insured vehicle owners to have coverage, it did not place the burden on the insurer to provide that coverage where, as here, the insured failed to notify the insurer that a vehicle had been purchased. The court characterized Guaranty National's coverage as being an operator's policy under the financial responsibility statutes, which would only extend coverage for a vehicle acquired by Bauman subsequent to the issuance of the policy if Bauman timely notified it of his ownership. McKillip, Ohlfs and State Farm (collectively, the appellants) now appeal.

STANDARD OF REVIEW

¶ 9. We review the circuit court's grant of summary judgment de novo, using the same methodology as the circuit court. Mullen v. Walczak, 2003 WI 75, ¶ 11, 262 Wis. 2d 708, 664 N.W.2d 76. Summary judgment is appropriate if the pleadings and other information on file show there is no "genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id.; see also Wis. Stat. § 802.08(2). Here, the pertinent facts are undisputed, leaving only issues of law for our consideration. Specifically, this case involves the interpretation of Guaranty National's insurance policy and Wis. Stat. ch. 344, issues that we review de novo. See Mullen, 262 Wis. 2d 708, ¶ 12 (interpretation of an insurance policy); Gonzalez v. Teskey, 160 Wis. 2d 1, 7-8, 465 N.W.2d 525 (Ct. App. 1990) (interpretation of statutes).

DISCUSSION

¶ 10. The appellants challenge the circuit court's ruling that Guaranty National's policy did not extend coverage to Ohlfs as a permissive user of Bauman's Tahoe on two grounds. First, they maintain that Guaranty National's policy, as written, must be read as extending coverage to Ohlfs as a permissive user of one of Bauman's vehicles. In the alternative, they argue that the financial responsibility statutes mandate that we read Guaranty National's policy as extending coverage to any vehicle Bauman operates and to permissive users of any vehicle he owns. We address each argument in turn.

Coverage Pursuant to the Terms of Guaranty National's Policy

¶ 11. The appellants claim that an irreconcilable discrepancy exists between the language contained in the renewal notice and "SR-22 Financial Responsibility Form" and the language contained in the non-owner endorsement. They argue that the "SR-22 Financial Responsibility Form" and renewal notice, which both indicate that an insured is covered while driving an "owned or non-owned" vehicle, would lead a reasonable insured to believe the policy covered any vehicle he or she owned and therefore any permissive user of such vehicles. They maintain that these provisions are in direct conflict with the non-owner endorsement's definition of "your insured car," which sets forth specific requirements an insured must satisfy for an owned vehicle to receive coverage. According to the appellants, this alleged inconsistency gives rise to contextual ambiguity that must be resolved in favor of coverage of Ohlfs as a permissive user of Bauman's Tahoe.

¶ 12. We first briefly address Bauman's argument that the "SR-22 Financial Responsibility Form" creates ambiguity within the insurance policy regarding vehicle coverage. Our supreme court has already held that this form is not a part of the insurance contract. Cardinal v. Leader National Insurance Co., 166 Wis. 2d 375, 391-92, 480 N.W.2d 1 (1992) (holding that Wis. Stat. § 344.33(5)(d) (1989-90), unambiguously sets forth what constitutes the insurance contract, "The policy, the written application therefore, if any, and any rider or endorsement which does not conflict with the provisions of this chapter constitutes the entire contract between the parties"). Because the form is not a part of the insurance contract, we will not consider it in our analysis of the appellants' contextual ambiguity claim.

¶ 13. In order to create the supposed contextual ambiguity, the appellants seem to read the language in the renewal notice in isolation. The appellants misunderstand the concept of contextual ambiguity. Contextual ambiguity occurs where a provision's words or phrases, when read in context of the policy's other language, reasonably or fairly lead to more than one construction. Bellile v. American Family Mut. Ins. Co., 2004 WI App 72, ¶ 16, 272 Wis. 2d 324, 679 N.W.2d 827. "The standard for determining a reasonable and fair construction is measured by the objective understanding of an ordinary insured." Id. (citation omitted). We may not isolate a small part of the policy from the context of the whole policy to find ambiguity. Id.

¶ 14. We conclude that Guaranty National's policy, when read in its entirety, clearly and unambiguously sets forth the requirements for coverage of a permissive user of an insured's owned vehicles. The renewal notice and the non-owner endorsement compliment, rather than contradict, one another.

¶ 15. The renewal notice merely indicates that coverage exists for "the named insured while driving owned or non-owned vehicles." The notice does not list any specific owned vehicle that is to be covered or any special conditions that must be met for such vehicles to be covered. Further, the notice does not speak to coverage for permissive users of owned vehicles.

¶ 16. The non-owner endorsement reaffirms the renewal notice's promise to afford coverage for the insured driving non-owned and certain owned vehicles. It also, not inconsistent with the renewal notice, extends coverage to permissive users of such owned vehicles. The non-owner endorsement simply clarifies for the insured that coverage for an owned vehicle can be obtained after the insured notifies Guaranty National of the acquisition of the vehicle, Guaranty National agrees to insure that vehicle and the insured pays any additional premiums to cover that vehicle. Thus, the provision in the renewal notice when read in the context of the entire policy would reasonably lead an insured to only one conclusion — that the specific conditions set forth in the non-owner endorsement have to he met for the policy to cover permissive users of owned vehicles. Because Bauman never notified Guaranty National that he purchased the Tahoe, Guaranty National never agreed to cover the Tahoe and Bauman never paid any additional premiums for coverage of the Tahoe, the policy, as written, does not provide coverage for Ohlfs as a permissive user of the Tahoe.

Coverage Pursuant to the Financial Responsibility Statutes

¶ 17. The financial responsibility statutes, as a condition precedent to reinstatement, require both vehicle operators who have had their licenses revoked or suspended and vehicle owners who have had their vehicle registrations revoked or suspended to show proof of financial responsibility for the future. See Wis. Stat. § 344.24. This requirement can be fulfilled by obtaining liability insurance with the coverage defined in Wis. Stat. § 344.33 and by certifying such coverage under Wis. Stat. § 344.31. Section 344.33(2) provides in pertinent part:

(2) MotoR vehicle liability policy. A motor vehicle policy of liability insurance shall insure the person named therein using any motor vehicle with the express or implied permission of the owner, or shall insure any motor vehicle owned by the named insured and any person using such motor vehicle with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the maintenance or use of the motor vehicle within the United States of America or the Dominion of Canada.... (Emphasis added.)

Section 344.31 specifies:

Certification of insurance as proof. Proof of financial responsibility for the future may be furnished by filing with the secretary the written certification of any insurer duly authorized to do business in this state that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility or by transmitting such certification to the secretary by another means approved by the secretary. Such certification shall give the effective date of such motor vehicle liability policy, which date shall be the same as the effective date of the certification and shall certify coverage for any motor vehicle operated by the named insured if the certification is required to be furnished by a vehicle operator or coverage for any motor vehicle owned by the named insured if the certification is required to be furnished by a vehicle owner. (Emphasis added.)

¶ 18. The appellants maintain that despite the use of the disjunctive "or," the statute should be read in the conjunctive, mandating insurance on the person (an operator's policy) and on all the vehicles such person may own (an owner's policy). Thus, they claim we must construe Guaranty National's policy as extending coverage not only to Bauman but also to Ohlfs as a permissive user of Bauman's Tahoe. We reject the appellants' arguments for two reasons.

¶ 19. First, the financial responsibility statutes, as amended by 1999 Wis. Act 80, §§ 62-63, clearly do not require an insurer to issue an owner's policy and an operator's policy to each insured in every case. Prior to the recent amendments, the statutes mandated insurance only on persons, but not on such persons' vehicles. See Wis. Stat. §§ 344.33 and 344.31 (1989-90). In 1999, the legislature added the following italicized language to §§ 344.33(2) and 344.31 respectively:

Motoe vehicle liability policy. A motor vehicle policy of liability insurance shall insure the person named therein using any motor vehicle with the express or implied permission of the owner, or shall insure any motor vehicle owned by the named insured and any person using such motor vehicle with the express or implied permission of the named insured .... (Emphasis added.)
Certification of insurance as proof.... Such certification shall give the effective date of such motor vehicle liability policy, which date shall be the same as the effective date of the certification and shall certify coverage for any motor vehicle operated by the named insured if the certification is required to be furnished by a vehicle operator or coverage for any motor vehicle owned by the named insured if the certification is required to be furnished by a vehicle owner. (Emphasis added.)

1999 Wis. Act 80, § 62-63. The notes following the 1999 amendments state:

NOTE: SECTIONS 62 and 63 amend current law regarding the required filing of proof of financial responsibility for the future to require vehicle owners, and not just vehicle operators, to file this proof. 1991 Wisconsin Act 269 made significant changes to Wisconsin's safety responsibility law. One of these changes required vehicle owners to file proof of financial responsibility before reinstatement of suspended or revoked vehicle registrations. This change was not carried over to the statutes requiring the filing of proof of financial responsibility for the future, and these SECTIONS make that change.

1999 Wis. Act 80, § 62 (Note) (emphasis added). The notes to the amendments make it clear that the changes were meant to make the safety responsibility statutes, which address security for past accidents, and the financial responsibility statutes, which address security in the event of future accidents, consistent. The legislature accomplished this by adding a class of persons, already present in the safety responsibility statutes, to the financial responsibility statutes — vehicle owners whose registration had been revoked or suspended. The notes clarify that the amendments simply created the same certification requirements for both vehicle owners seeking reinstatement of revoked or suspended registration and vehicle operators seeking reinstatement of revoked or suspended operator's licenses. Thus, contrary to the appellants' assertions, the amendments did not eliminate the possibility of fulfilling the financial responsibility statutes' requirements by obtaining only operator's coverage.

¶ 20. Second, the appellants have a fundamental misconception about the financial responsibility statutes. It is incumbent upon the person seeking insurance to inform the insurance company of whether he or she wants an operator's policy, an owner's policy, or both. It is not the insurer's duty, absent instruction from the insured, to issue both types of policies.

¶ 21. Here, Guaranty National issued Bauman a "Named Operator's" policy with a non-owner endorsement in compliance with the financial responsibility statutes. The policy, by its terms, unambiguously provides coverage for Bauman as the named insured and for a permissive user of an owned vehicle meeting the preconditions to coverage. Had Bauman wanted an owner's policy in addition to his operator's policy, it was his responsibility to inform Guaranty National that such was the case. It was not Guaranty National's duty to issue him a policy covering all his owned vehicles and their permissive users — especially when Bauman had not informed Guaranty National of the acquisition of any vehicles and had not paid any additional premiums for coverage of any vehicles. We will not now rewrite Guaranty National's policy to bind it to a risk it was unwilling to cover, and for which it was not paid. See Garriguenc v. Love, 67 Wis. 2d 130, 135, 226 N.W.2d 414 (1975).

CONCLUSION

¶ 22. Guaranty National's policy by its own terms insures permissive users of Bauman's owned vehicles, provided Bauman satisfies the conditions set forth in the non-owner endorsement for coverage of owned vehicles. Because Bauman did not satisfy those prerequisites to coverage, the policy does not cover Ohlfs as a permissive user of the Tahoe. Furthermore, the financial responsibility statutes do not mandate that we read Guaranty National's policy as extending coverage to Ohlfs as the permissive user of the Tahoe. The circuit court therefore properly granted summary judgment in favor of Guaranty National.

By the Court. — Order affirmed.

       State Farm had also issued Ohlfs an automobile insurance policy before the accident. The terms of that policy, however, are not pertinent to this appeal.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       While certain provisions in the financial responsibility statutes have been amended in the years since the Cardinal v. Leader National Insurance Co., 166 Wis. 2d 375, 480 N.W.2d 1 (1992), decision, Wis. Stat. § 344.33(5)(d), which governs the scope of an insurance policy, remains unchanged.

       The parties dispute whether the circuit court properly relied on Cardinal, in which our supreme court held that the financial responsibility statutes mandate insurance on the person, not on the vehicles such person may own. Cardinal, 166 Wis. 2d at 388. The financial responsibility statutes have been amended since the Cardinal decision. Because the appellants' challenge presents a question of pure statutory interpretation, we will focus our attention on the plain language of the statutes as amended.

       The appellants argue that Bindrim v. B. & J. Insurance Agency, 190 Wis. 2d 525, 527 N.W.2d 320 (1995), controls this case. Bindrim, however, is easily distinguished on two grounds. First, in Bindrim, the court reaffirmed the principle that the financial responsibility statutes require the policy to insure drivers operating any vehicle, regardless of whether he or she owns that vehicle. Id. at 533. Here, the question is not whether the statutes mandate coverage for Bauman while he is driving an owned vehicle, but rather whether the statutes mandate coverage for a permissive user of Bauman's owned vehicles. Second, in Bindrim, the court held that pursuant to Wis. Stat. § 632.32(6)(b)l, part of the omnibus coverage statute, a non-owner's policy "must, like a policy that insures a vehicle, provide coverage to all members of a household related by blood or marriage to the named insured." Bindrim, 190 Wis. 2d at 540. Here, Ohlfs is not a member of a household related by blood or marriage to Bauman and therefore § 632.32(6)(b)(l) does not apply. Furthermore, because Bauman's policy does not describe any specific motor vehicle, the omnibus coverage statute does not otherwise demand coverage in this case. See s 632.32(3)(a) ("[c]overage provided to the named insured applies ... to any person using any motor vehicle described in the policy" (emphasis added)).


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    Keith and Pam Nettesheim, Matthew and Christy McBride, David and Janet Carpenter and William and Mary Berger, Plaintiffs-Respondents, v. S.G. New Age Products, Inc., Defendant-Appellant.
    Court of Appeals

      No. 2005AP287-FT.

      Submitted on briefs April 21, 2005.

      Decided June 28, 2005.

    2005 WI App 169
    (Also reported in 702 N.W.2d 449.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John L O'Brien of O'Brien, Anderson, Burgy, Garbowicz & Brown, LLP of Eagle River.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Mitchell R. Olson of Eckert, Kost & Vocke LLP.

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

¶ 1. S.G. New Age Products, Inc. ("New Age") appeals a decision granting summary judgment to the Nettesheims, McBrides, Carpenters, and Bergers ("Nettesheims") and an order permanently enjoining it from conveying additional fractional shares in a road, known as Outlot 1, which New Age and the Nettesheims own as tenants in common.

¶ 2. This dispute between a property developer and Rice Creek subdivision landowners arises from New Age's efforts to use Outlot 1 and a road built across one of the Rice Creek lots as access roads for a second subdivision. New Age argues it was an error to find, based on analogies between the co-tenants' fractional interest in Outlot 1 and non-exclusive easements, that traffic from the new subdivision would overburden the common property. New Age also argues the circuit court erred when it determined that the Rice Creek Declaration of Covenants, Conditions and Restrictions bars the use of Outlot 1 for access to the new development because the covenants do not explicitly restrict road use to Rice Creek lot owners. Finally, New Age contends that even if we agree its right to convey its property in Outlot 1 is limited by a need to avoid overburdening the road, the circuit court should not have granted summary judgment to the Nettesheims because material facts are still at issue.

¶ 3. We reject all New Age's arguments and affirm the judgment and order of the circuit court.

BACKGROUND

¶ 4. In the mid-1990s, Taylor Investment Company created a subdivision in rural Vilas County near Rice Creek. The subdivision, named for that landmark, consisted of fourteen lots and the sixty-six-foot private road, known as Outlot 1 that provided access to the lots. Outlot 1 is roughly T-shaped. The trunk of the T connects the subdivision to a public road. The two arms of the T run north and south, dead-ending near the boundaries of the subdivision. All deeds to the Rice Creek lots included an undivided l/14th interest in Outlot 1 and the lot owners were to share equally in maintaining the road.

¶ 5. Some time later, New Age purchased thirty-three acres north of, and immediately adjacent to, Rice Creek subdivision, which it planned to develop as a second subdivision. At the same time, it also bought Lot 9 in Rice Creek, located in the far northwest corner of the older subdivision. The new subdivision, Balsam Rapids, was to be divided into nine lots. To provide access to Balsam Rapids, New Age built a road across Lot 9, extending to Outlot 1. Buyers in Balsam Ridge would thus receive, in addition to their lots, a l/9th interest in the road that ran over Lot 9 and l/9th interest in New Age's l/14th interest in Outlot 1.

¶ 6. In October 2004, after the Vilas County Zoning Committee approved the Balsam Rapids plat, the Nettesheims sued New Age, requesting injunctive and declaratory relief. New Age moved for summary judgment on the grounds that its ownership of an undivided fee interest in Outlot 1 gave it the right to convey that interest either wholly or in smaller fractions. The Nettesheims countered that the proposed use violated both their rights as tenants in common and the subdivision's restrictive covenant; they also moved for summary judgment.

¶ 7. In January 2005, in a written decision, the circuit court determined that the practice of conveying fractional interests in private roads was consonant with the law of co-tenancy. If a disagreement arose among co-tenants, the remedy of partition was ordinarily available. Here, however, the court reasoned, that remedy was illogical because ownership interest in Outlet 1 could not be severed from lot ownership. Based on equitable considerations, the court thus declared that New Age's proposed use of Outlot 1 would overburden the private road that was the common property at issue. It also concluded the use was barred by the restrictive covenants. The circuit court then permanently enjoined New Age from "passing unwanted Balsam Rapids subdivision traffic over Outlot 1 by conveying additional fractional interests" unless it obtained the permission of two-thirds of Rice Creek lot owners. New Age now appeals.

DISCUSSION

Standard of Review

¶ 8. We review summary judgment decisions without deference, applying the same standards and methodology as the circuit court. See Smith v. Dodegeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). We look at the complaint first to see whether it states a claim, and then ask whether the answer raises a material issue of fact or law. See id. If the complaint and answer are sufficient, we turn to the moving party's affidavits. See id. at 232-33. If the affidavits establish a prima facie case for summary judgment, we examine the opposing party's affidavits to determine whether there are material facts in dispute that entitle the opposing party to a trial. See id. at 233.

¶ 9. Whether to grant injunctive relief is, by contrast, addressed to the sound discretion of the circuit court. See Pure Milk Prods. Coop. v. National Farmer's Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979). When we review the circuit court's exercise of discretion, we examine the record to determine whether the court logically interpreted the facts, applied the proper legal standard, and used a demonstrated rational process to reach a conclusion that a reasonable judge could reach. See State v. Keith, 216 Wis. 2d 61, 69, 573 N.W.2d 888 (Ct. App. 1997).

Overburdening the Common Estate

¶ 10. When the original developer deeded a l/14th interest in Outlot 1 to each Rice Creek lot buyer, it created a tenancy in common. A tenancy in common is defined as a "tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship." Black's Law Dictionary 1507 (8th ed. 2004). As tenants in common, the owners of Outlot 1 have the right to sell their interests outright. See, e.g., Elfelt v. Cooper, 168 Wis. 2d 1008, 1023, 485 N.W.2d 56 (1992). They also, as New Age asserts, have the right to sell or convey fractional parts of their undivided interest in the whole property. See id. Based on that right, New Age apparently argues that the circuit court, acting in equity, erred when it found that New Age's proposed use of Outlot 1 would overburden the common estate. We are not persuaded.

¶ 11. Although no Wisconsin case law explicitly addresses this question, New Age suggests that Butler v. Craft Eng. Constr., Inc., 843 P.2d 1071 (Wash. Ct. App. 1992), provides persuasive authority for its argument. We disagree. Butler also involved a private road in a subdivision and tenancy in common, but the Washington Court of Appeals' decision does not suggest that tenants in common have an unlimited right to sell or convey fractional shares in a private roadway. Rather, according to Butler, a co-tenant's right to lease, sell, or otherwise dispose of its interest in the common property without the consent of co-tenants is limited by an obligation not "to interfere with the coequal rights of other tenants." Id. at 1078. The court went on to explain "it would be possible, by virtue of sheer volume of traffic, to so congest a commonly owned roadway that the right of any given tenant to possess, use and enjoy the road would be impermissibly interfered with." Id. at 1079. While the court did not find that degree of interference in the facts before it, where use was being expanded from two lots to three, it noted that under more extreme circumstances a request for injunctive relief could provide an adequate remedy. See id.

¶ 12. New Age suggests the circuit court placed new meaning on tenancy in common when it found that such tenancy "implies some commonality of interest," a finding "unsupported by any appellate court holding." New Age both overstates the circuit court's holding and misreads Wisconsin law.

¶ 13. The phrase cited by New Age comes from a portion of the circuit court's decision distinguishing New Age's motives for purchasing a lot in Rice Creek from those of the Nettesheims and their neighbors. The court observed that, unlike the other lot owners, New Age "never intended to establish a residence in Rice Creek or share the roadway as a neighbor." In that context, it concluded, New Age did not buy as an ordinary tenant in common, which "implies some commonality of interest." As a characterization of New Age's motives, this conclusion seems unassailable, particularly because New Age admits it bought Lot 9 for the sole purpose of putting a road across it.

¶ 14. But even if New Age were correct in its characterization of the circuit court's statement, both the principles of co-tenancy and Wisconsin law provide support for that statement. Numerous treatises characterize tenancy in common as a relation that ordinarily entails a community of interest, giving rise to a peculiar relationship of mutual trust and confidence in respect of the common estate. See, e.g., 20 Am. Jur 2d Cotenancy and Joint Ownership § 2 (1995). And Wisconsin law recognizes that because a tenancy in common involves shared interest in a common title, it creates a community of interest among a group of owners that would make "it inequitable to permit one of them to do anything to the prejudice of the others." Hunter v. Bosworth, 43 Wis. 583, 593 (1878).

¶ 15. Thus while the circuit court explicitly adopts the reasoning of a Texas Court of Appeals case, Barstow v. State, 742 S.W.2d 495 (Tex. App. 1987), to explain its decision that New Age's rights to convey fractional interests in Outlot 1 cannot prejudice the rights of its co-tenants, that decision reflects a principle firmly established in Wisconsin law. We therefore agree that, under these circumstances, New Age could not convey so many fractional interests in Outlot 1 that it overburdened the common estate.

¶ 16. Affidavits and other evidence offered by the Nettesheims asserted that conveying an additional nine fractional interests in Outlot 1 would increase traffic on the road — and thus also increase maintenance costs, decrease privacy, and diminish property values. New Age offered no evidence to the contrary, apparently relying solely on the claim that a co-tenant's right to convey fractional interests in his or her property is unlimited. The record thus provides a reasonable basis for the circuit court's conclusion that conveying nine more fractional shares in Outlot 1 would burden the common estate so heavily it would prejudice the Nettesheims' rights as co-tenants.

The Restrictive Covenants

¶ 17. Alternatively, we also agree with the trial court's conclusion that such use was barred by the restrictive covenants. The interpretation of written covenants affecting land is a question of law we review independently. See Zinda v. Krause, 191 Wis. 2d 154, 165, 528 N.W.2d 55 (Ct. App. 1995). Whether the language of a restrictive covenant is ambiguous is also a question of law. See id.

¶ 18. New Age's argument with respect to the restrictive covenants is short and largely conclusory. New Age correctly contends "it is axiomatic" that covenants intended to limit property use must be clearly stated and strictly construed because public policy favors the "unencumbered and free use of property." Crowley v. Knapp, 94 Wis. 2d 421, 434, 288 N.W.2d 815 (1980). New Age then asserts that the absence of any language explicitly restricting the use of Outlot 1 to Rice Creek lot owners is sufficient to establish that the original developers did not intend such a restriction.

¶ 19. The Nettesheims counter that where "the intent of the restrictive covenant can be clearly ascertained from the covenant itself, the restrictions will be enforced." Zinda, 191 Wis. 2d at 166. They argue that Article I, the General Purpose section of the restrictive covenant document, and Article II, barring anything "which may become an annoyance or nuisance to the neighborhood," expresses intentions that are contravened by New Age's proposed use of Outlot 1. We agree.

¶ 20. According to Article I, the purpose of the Rice Creek Declaration is to

insure the best use and the most appropriate development and improvement of the [s]ubject [p]roperty; to protect owners ... against such use of surrounding property as will detract from the value of their property; to preserve, so far as practicable, the natural beauty of [s]ubject [p]roperty; to insure the highest and best development of [s]ubject [pjroperty ....

As the circuit court observed, when Rice Creek lot owners purchased property, they did so knowing that Outlot 1 was a private road that served only the fourteen lots in the subdivision and knowing that they would be equally responsible with their neighbors for maintaining that road. The intent of the original developer was, as Article I makes clear, to preserve the "natural beauty" of a rural forested development whose only means of access was a dead-end road. According to evidence submitted by the Nettesheims, New Age's proposed use of Outlot 1 could add between 108 and 180 extra vehicle drive-bys a day, particularly affecting the properties on the dead-end of Outlot 1 nearest Lot 9. Additional traffic would add to the costs of maintaining Outlot 1. Increased traffic, including the traffic associated with building homes in Balsam Rapids, would also be detrimental to the "natural beauty" of the area. Because those who choose to live on dead-end roads in rural seclusion value their property, at least in part, because of its "natural beauty," use that destroys that character will "detract from" their property's value. We thus agree with the circuit court that Rice Creek's restrictive covenants would bar New Age's proposed use of Outlot 1.

The Permanent Injunction

¶ 21. To obtain an injunction, the moving party must show there is a sufficient probability that the future conduct of the opposing party will violate a right of the movant. See Pure Milk Prods., 90 Wis. 2d at 800. The movant must also establish that the injury would be irreparable — not adequately compensable by money damages — and that, on balance, equity favors issuing the injunction. See id. Whether the movant has met that burden is a decision left to the sound discretion of the circuit court. Zinda, 191 Wis. 2d at 174-75.

¶ 22. As we have already discussed, the circuit court's decision indicates that it applied the appropriate law and principles of equity to conclude that the Nettesheims had rights, under Rice Creek's restrictive covenants and as co-tenants, that New Age's proposed use of Outlot 1 would violate. The court found, albeit somewhat obliquely, that an increased flow of traffic through Outlot 1 would irreparably injure the Nettesheims' peace of mind and their residential seclusion, injuries not adequately compensable by money, and that, on balance, equity favored issuing the injunction. Those findings were based on a record that consisted of affidavits and other papers filed by the plaintiffs. The court thus applied the appropriate legal principles to effectively undisputed facts, and used a demonstrated rational process to reach a conclusion that a reasonable judge might have reached. We discern no error in that process.

¶ 23. New Age argues finally that, even if we accept the circuit court's premise that additional users could overburden Outlot 1, the circuit court erred by granting summary judgment because material facts are still at issue. New Age does not identify which material facts in particular it contests. It rather objects to the fact that four of the Nettesheims' affidavits were filed one day before the hearing on summary judgment and two more were filed after the hearing, concluding that "[I]f the trial court felt that over-burdening... was truly an issue, it... had the option to .. . set the matter for trial."

¶ 24. It was New Age's choice, however, not to submit affidavits or otherwise contest the facts presented by the Nettesheims. The circuit court noted at the summary judgment hearing that the "only facts in the record" were "those submitted by the plaintiffs." New Age did not object to the admission of the Nettesheims' affidavits nor is there any indication that it objected to the court's characterization of the record before it. New Age cannot now claim that the circuit court erred by granting summary judgment because it might have contested facts but chose not to. See Wis. Stat. § 802.08(3).

By the Court. — Judgment and order affirmed.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The standard to be applied to such claims is established by statute, Wis. Stat. § 802.08(3).

        When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.

       Wisconsin Stat. § 842.02 codifies the common law of partition, an equitable action. See, e.g., Klawitter v. Klawitter, 2001 WI App 16, ¶ 7, 240 Wis. 2d 685, 623 N.W.2d 169; Rubina v. Nichols, 241 Wis. 644, 648, 6 N.W.2d 657 (1942). Under the partition statute, a party "having an interest in real property jointly or in common with others" may sue for judgment partitioning that interest unless such an action is prohibited by statute or by agreement between the parties. Wis. Stat. § 842.02(1). When physical partition is impossible, the court may order the land sold and the proceeds of that sale divided. See Wis. Stat. § 842.02(2).


author: LUNDSTEN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Patrick J. Fahey, Defendant-Appellant.

    Court of Appeals

      No. 2004AP102-CR.

      Submitted on briefs November 8, 2004.

      Decided June 30, 2005.

    2005 WI App 171
    (Also reported in 702 N.W.2d 400.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Tracey A. Wood of Van Wagner & Wood, S.C., Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jonathon G. Kaiser, assistant district attorney for Dane County.
    Before Deininger, EJ., Vergeront and Lundsten, JJ.

       Petition to review denied 9-8-05.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. § 809.41(3) (2003-04). All further references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

   LUNDSTEN, J.

¶ 1. Patrick J. Fahey appeals a judgment of the circuit court finding him guilty of operating a motor vehicle while intoxicated. Fahey was arrested for driving while intoxicated and transported to a police station where police informed Fahey of his right to an alternative test at agency expense and then administered a police-requested breathalyzer test. While at the police department, Fahey did not request an alternative test. Instead, Fahey returned to the police department after he was released and then, for the first time, requested an alternative test at agency expense. Fahey argues that the police violated Wis. Stat. § 343.305(5)(a) by failing to honor his request for an alternative test and that the circuit court erred by denying his motion to suppress the result of his breathalyzer test. We affirm the circuit court. We hold that, where police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of § 343.305(5)(a).

Background

¶ 2. No evidentiary hearing was held because the parties stipulated to the facts in a police report. Those undisputed facts are as follows.

¶ 3. In January 2003, at 12:40 a.m., Fahey was stopped by a police officer for speeding. Fahey's speech was slurred and he had a strong odor of intoxicants on his breath. Fahey admitted that he had been drinking beer, and he performed poorly on field sobriety tests. Fahey was arrested and transported to the Cottage Grove Police Department. At the police department, the officer issued Fahey a ticket for operating a motor vehicle while intoxicated. The officer read Fahey an "Informing the Accused" form, thereby informing Fahey that, if he took the test requested by the police, he could take an alternative test provided by the law enforcement agency free of charge. Fahey did not request such a test.

¶ 4. A breathalyzer test was administered beginning at 1:25 a.m. The test measured Fahey's blood alcohol level at .20. At some point during Fahey's time in custody, he called his wife to come and pick him up. At 1:55 a.m., Fahey was released from police custody and left the police station with his wife. Approximately fifteen minutes later, Fahey returned to the station and, for the first time, told police he wanted an alternative test. The arresting officer declined to provide a test at government expense. The officer informed Fahey that Fahey could go to the hospital and get a blood test done at his own expense. Fahey indicated that he would do that and he left.

¶ 5. Fahey subsequently moved the circuit court to suppress the results of his breathalyzer test, alleging that the arresting officer failed to abide by Wisconsin's implied consent law, Wis. Stat. § 343.305, when the officer declined Fahey's request for an alternative chemical test of Fahey's blood at agency expense. The circuit court denied the suppression motion, concluding that "a request for a free second test which is first made after the defendant has been released from custody comes too late."

Discussion

¶ 6. Wisconsin's implied consent law permits arrestees, upon submitting to the police agency's primary test, the right to request an alternative chemical test at the police agency's expense. Wisconsin Stat. § 343.305(5)(a) states, in part:

If the person submits to a test under this section, the officer shall direct the administering of the test. A blood test is subject to par. (b). The person who submits to the test is permitted, upon his or her request, the alternative test provided by the agency under sub. (2) or, at his or her own expense, reasonable opportunity to have any qualified person of his or her own choosing administer a chemical test for the purpose specified under sub. (2).... The agency shall comply with a request made in accordance with this paragraph.

(Emphasis added.) The requirements regarding an alternative test at agency expense are twofold: the accused must be told of the alternative test and, if the accused makes a "request" for an alternative test at agency expense, police must make a "diligent effort... to comply with the demand." See State v. Renard, 123 Wis. 2d 458, 461, 367 N.W.2d 237 (Ct. App. 1985).

¶ 7. In this case, it is undisputed that Fahey was informed of his right to an alternative test free of charge. Fahey did not, however, request such a test when so informed. Indeed, Fahey did not request an alternative test at agency expense during the next half hour or so while police administered a breathalyzer test and before Fahey left the police station with his wife, Fahey first requested an alternative test at agency expense after he was released from custody, left the police department, and then returned about fifteen minutes later. The question here is whether, under these circumstances, Fahey made a "request" within the meaning of Wis. Stat. § 343.305(5)(a).

¶ 8. Fahey contends that the question here should be decided by determining "how diligent the police were in offering the second test and in ensuring there was an unequivocal refusal [to take that second test]." Fahey argues that, under State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994), this is a question answered case by case by weighing various factors, such as whether the accused affirmatively refused the alternative test, whether the officer was still available to honor the request, and whether the request was made within three hours of the stop. Looking at the particular facts in this case, Fahey argues that he requested an alternative test at agency expense and the officer failed to exercise reasonable diligence in honoring that request. Fahey agrees that his release from custody is a relevant consideration, but asserts that his release and his act of leaving the police department do not constitute a cutoff point for purposes of making a request for an alternative test at agency expense. Fahey asserts that the "point of the Stary case was that there is no bright line rule with respect to the timing of requests for second tests" because the Stary court "explicitly held that courts should look at the totality of circumstances in an individual case to determine whether the officer exercised reasonable diligence in ensuring the arrestee received the requested second test."

¶ 9. The State frames its argument in terms of waiver. In the State's view, Fahey waived his right to an alternative test at agency expense by waiting until after his release to make that request. But, as Fahey points out, the State does not provide legal support for its waiver theory. At the same time, the State also looks to Stary for guidance. In the State's view, this case is like Stary because here, as in Stary, the request for an alternative test at agency expense was made after the accused was released from custody.

¶ 10. Because both parties place primary reliance on Stary, we pause to address that case. The defendant in Stary, while in custody at a police department, submitted to a police-requested test and repeatedly declined an officer's offer of an alternative test at the agency's expense. Id. at 268. Thirty-five minutes after his release, the defendant, by means of a phone call placed by a nurse at a medical center, requested an alternative test at agency expense. The police declined the request. Id. Although our analysis in Stary may be susceptible to differing interpretations, at least one rule from Stary is clear: When police advise a suspect of his or her right to an alternative test at agency expense and repeatedly offer such a test, when the suspect affirmatively refuses the offer, and when the suspect then leaves police custody, police have no obligation to honor a subsequent request for an alternative test at agency expense. Id. at 271-72. More to the point, we did not say in Stary that police may deny a post-release request for an alternative test at agency expense only if the defendant expressly refuses an affirmative offer of an alternative test while in custody.

¶ 11. As we did in Stary, we conclude that this case requires interpretation of Wxs. Stat. § 343.305(5)(a). See Stary, 187 Wis. 2d at 269. The question here is whether a request is a "request" within the meaning of § 343.305(5)(a) under the following circumstances: when police have informed a suspect of his or her right to an alternative test at agency expense, when the suspect has ample opportunity to make a request, when the suspect makes no request, when the suspect is released from custody and leaves the presence of custodial police, and when the suspect later requests an alternative test at agency expense.

¶ 12. In Peterson v. Volkswagen of America, Inc., 2005 WI 61, 281 Wis. 2d 39, 697 N.W.2d 61, the supreme court summarized the rules of statutory construction:

"When interpreting statutes, our goal is to give effect to the language of the statute. We begin by looking to the language of the statute because we 'assume that the legislature's intent is expressed in the statutory language.' Technical terms or legal terms of art appearing in the statute are given their accepted technical or legal definitions while nontechnical words and phrases are given their common, everyday meaning. Wis. Stat. § 990.01(1). Terms that are specifically defined in a statute are accorded the definition the legislature provided. In addition, we read the language of a specific statutory section in the context of the entire statute. Thus, we interpret a statute in light of its textually manifest scope, context, and purpose."
As such, extrinsic sources, such as legislative history, are not consulted unless the statute is ambiguous. A statute is ambiguous if it is susceptible to more than one reasonable understanding.

Id., ¶ 19 (citations omitted).

¶ 13. The implied consent statutes do not define a "request" for an alternative test at agency expense. The pertinent subsection simply states that, if a suspect submits to a primary test selected by the police, the suspect is entitled to an alternative test at agency expense "upon his or her request" and that the "agency shall comply with a request made in accordance with this paragraph." Wxs. Stat. § 343.305(5)(a). We conclude that it is unreasonable to suppose that the legislature meant to impose a requirement that police honor all requests, no matter when made and no matter what the circumstances. Thus, the question becomes whether the request in this case was a "request" within the meaning of § 343.305(5)(a).

¶ 14. Although the parties frame the question differently, they essentially offer competing interpretations of the statute. Fahey takes the position that courts must always decide whether a request is one the legislature intended to be honored on a case-by-case basis. Applying that approach here — and emphasizing that his request was well within three hours of the stop — Fahey contends his request was a request within the meaning of the statute. The State, in keeping with the circuit court's decision, argues that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.

¶ 15. We conclude that the State's interpretation is more reasonable, primarily because Fahey's proposal is unworkable. If a case-by-case approach is used for requests made after release, does that mean police must make themselves available for some time period after a release? Does that mean that a test is required if the processing officer is still available when the suspect returns, but not required if the officer happens to have left or is otherwise occupied? Or, must an officer unfamiliar with the case investigate and decide whether to honor the request? Is fifteen minutes soon enough, but an hour too late?

¶ 16. Fahey emphasizes that there was ample time to administer an alternative test within three hours of the time he was stopped. As noted earlier, three hours has significance because of the favorable admissibility rules for results of tests administered "within 3 hours after the event to be proved." See Wis. Stat. § 885.235 (1g) and (3); see generally State v. Fonte, 2005 WI 77, ¶¶ 14-17, 281 Wis. 2d 654, 698 N.W.2d 594. But it is not apparent why this statutory three-hour time limit, is relevant here. Both primary and alternative testing may occur after the three-hour time limit in § 885.235. It follows that valid requests for alternative testing at agency expense may be made after the statutory three-hour time limit. In isolating the three-hour time limit as a factor, Fahey does not explain why this factor should make it any more or less reasonable for police to grant or reject a request for an alternative test. In Stary, we noted that the defendant argued that the fact that his request was made within three hours of the stop weighed in favor of honoring his request. Stary, 187 Wis. 2d at 272. We did not, however, resolve whether this factor was relevant. Rather, we said that "however relevant" it might be, it did not affect our decision. Id. We conclude here that the statutory three-hour time limit is not relevant to whether police must honor a request for an alternative test.

¶ 17. In interpreting Wis. Stat. § 343.305(5)(a), we also take into account that the issue is not whether a suspect may have an alternative test, but whether a police agency must provide an alternative test at no charge. Our construction of the statute does not prevent suspects from obtaining evidence; rather, it places a reasonable limit on their ability to do so at taxpayer expense. Fahey was free to obtain an alternative test, but it was too late to ask for one provided at agency expense.

¶ 18. Our decision is narrow. We hold that, where police have informed a suspect of his or her right to an alternative test at agency expense, the suspect has ample opportunity to make a request, the suspect makes no request, and the suspect is released from custody and leaves the presence of custodial police, a subsequent request for an alternative test at agency expense is not a request within the meaning of Wis. Stat. § 343.305(5)(a). We do not hold that police must honor all requests made while a suspect remains in custody.

¶ 19. We conclude that the police here complied with the implied consent law. We affirm the circuit court.

By the Court. — Judgment affirmed.

       The parties agree that this was the content of the advisement, and we rely on that agreement, but note that the record does not contain the language of the particular advisement given to Fahey.

       Fahey argues that suppression of his breath test is required if the officer violated the implied consent law by improperly refusing Fahey's request for an alternative test at agency expense. He asserts that suppression has "invariably" been the result when courts conclude there has been a violation of the implied consent law. Fahey points to State v. McCrossen, 129 Wis. 2d 277, 385 N.W.2d 161 (1986), and State v. Renard, 123 Wis. 2d 458, 367 N.W.2d 237 (Ct. App. 1985), as examples. The State does not address the topic here, but it has in the past. See State v. Schmidt, 2004 WI App 235, ¶ 2 n.2, 277 Wis. 2d 561, 691 N.W.2d 379 (declining to address the State's argument that, even if a defendant makes a request for an additional test, the failure of police to provide an additional test does not require suppression). We choose not to resolve this issue, but note that the supreme court's decisions in State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, and State v. Zielke, 137 Wis. 2d 39, 403 N.W.2d 427 (1987), explain that a violation of the implied consent law does not necessarily lead to suppression of an otherwise lawfully obtained test result. See Piddington, 241 Wis. 2d 754, ¶¶ 34-36, 50-54; Zielke, 137 Wis. 2d at 51-56. In Piddington, the court discussed McCrossen and Renard. Pid-dington, 241 Wis. 2d 754, ¶¶ 50-54. The court stated: "Even if [the defendant] had requested but did not receive an alternative test, he would not be entitled to automatic suppression of the results of the test he did have, as he now contends .... [T]he implied consent law does not dictate that a violation thereof requires suppression of a blood test as a remedy." Id., ¶ 52. In Zielke, the court explained that there are sanctions for lack of compliance with the implied consent law, but suppression is not necessarily one of them. See Zielke, 137 Wis. 2d at 51 ("[E]ven though failure to advise the defendant as provided by the implied consent law affects the State’s position in a civil refusal proceeding and results in the loss of certain evidentiary benefits, e.g., automatic admissibility of results and use of the fact of refusal, nothing in the statute or its history permits the conclusion that failure to comply with sec. 343.305(3)(a), Stats., prevents the admissibility of legally obtained chemical test evidence in the separate and distinct criminal prosecution for offenses involving intoxicated use of a vehicle."); see also County of Dane v. Granum, 203 Wis. 2d 252, 551 N.W.2d 859 (Ct. App. 1996) (discussing Zielke and the effect of not informing a suspect of the benefits of an alternative test on the admissibility and favorable evidentiary treatment under Wis. Stat. § 885.235). In addition, we note that suppression of evidence is normally required only when evidence has been obtained in violation of a constitutional right or in violation of a statute that specifically requires suppression as a remedy. See State v. Repenshek, 2004 WI App 229, ¶ 23, 277 Wis. 2d 780, 691 N.W.2d 369, review denied, 2005 WI 60, 281 Wis. 2d 113, 697 N.W.2d 472 (No. 2003AP3089-CR); State v. Keith, 2003 WI App 47, ¶ 8, 260 Wis. 2d 592, 659 N.W.2d 403, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (No. 2002AP583-CR).

       Three hours has significance in drunk driving cases because of the favorable admissibility rules for results of tests administered "within 3 hours after the event to be proved." See Wis. Stat. § 885.235 (lg) and (3).


author: HIGGINBOTHAM, J. DYKMAN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Thomas R. Galecke, Defendant-Appellant.
    Court of Appeals

      No. 2004AP779-CR.

      Submitted on briefs September 7, 2004.

      Decided June 30, 2005.

    2005 WI App 172
    (Also reported in 702 N.W.2d 392.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of John P. Runde of Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí Michael C. Sanders, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Dykman, Lundsten and Higginbotham, JJ.
   HIGGINBOTHAM, J.

¶ 1. Thomas R. Galeeke appeals an order of the circuit court requiring him, as a condition of probation, to refuse electronic monitoring while incarcerated in the Outagamie County jail or, in the alternative, withdrawing the court's permission that Galeeke serve his jail time in a different county. Galeeke argues the circuit court was without the authority to impose such an order. We reverse the order of the circuit court.

FACTS

¶ 2. Galecke pled no contest to one count of forgery, in violation of Wis. Stat. § 943.38(1) (a) (2003-04), and one count of theft, in violation of Wis. Stat. § 943.20(l)(b). He had originally been charged with nine counts of theft by an employee and a single count of forgery, all stemming from his embezzlement from his former employer, Plover Trucking & Lime, Inc. As a result of plea negotiations, Galecke entered pleas to the aforementioned two counts; the maximum penalties for these counts totaled fifteen years, nine months in prison and $20,000 in fines.

¶ 3. At sentencing, the circuit court termed the crimes "serious" and determined the community needed protection from the "dishonest acts of an employee" and Galecke's rehabilitative needs included restitution. Nonetheless, while the circuit court concluded the seriousness of Galecke's crimes might warrant imprisonment, it further concluded a prison sentence was unnecessary.

¶ 4. However, the circuit court made clear some incarceration was appropriate:

I think there should be incarceration because you've got a serious crime, and if the Court did not impose some form of incarceration here, then I think the Court has neglected that first consideration of seriousness of the crime ....
So the Court does intend to impose some type of a county jail sentence with release for going to work and release for going to and attending counseling.

The circuit court withheld sentence on each conviction and ordered ten years' probation on the forgery charge and three years' concurrent probation on the theft charge. The court imposed numerous probation conditions, including that Galecke "serve 270 days in the county jail." The circuit court granted work release privileges so Galecke could attend work and counseling. The circuit court also allowed Galecke to serve his confinement "in Outagamie County or any other county jail that is close enough to his employment...." The circuit court further noted restitution would be set in a future order.

¶ 5. Shortly thereafter the circuit court learned, via a letter from the victims in this case, Galecke had been placed on home detention by the Outagamie County sheriff. The circuit court ordered a probation review and held a hearing. The circuit court expressed surprise at the Outagamie County sheriffs decision to place Galecke on home monitoring: "What this Court - what I'm concerned about here is that this Court did not authorize home detention." While the circuit court acknowledged the Outagamie County sheriff had the authority to place Galecke on home detention, the court indicated the Portage County sheriff "does not let persons out on home detention unless the Court directs that the person be released on home detention."

¶ 6. Galeeke pointed out, pursuant to State v. Schell, 2003 WI App 78, 261 Wis. 2d 841, 661 N.W.2d 503, the circuit court had no authority to "tell the sheriff or to tell the Probation and Parole whether they can or cannot put somebody on home detention... The circuit court agreed and ordered Galeeke, as a condition of probation, to refuse home detention. Alternatively, the circuit court stated in its oral decision it would "withdraw the permission to serve the sentence in another county." The circuit court memorialized this order in writing:

IT IS HEREBY ORDERED THAT the Judgment of Conviction in this matter be amended to reflect that the defendant shall report to the Outagamie County jail and refuse electronic monitoring or, continue his confinement in the Outagamie County jail as a condition of probation or, in the alternative, return to the Portage County jail to serve 270 days as a condition of probation.

The circuit court granted Galecke's request for a stay of this order. Galeeke appeals.

DISCUSSION

¶ 7. Galeeke makes two arguments: the circuit court erred by modifying the terms of his probation requiring him to refuse participation in the home detention program and the circuit court lacked the authority to transfer Galeeke from the Outagamie County jail to the Portage County jail. The State claims the circuit court acted properly by requiring Galeeke to withdraw his consent to participation in the home detention program because the requirement was imposed as a condition of his probation, a requirement the circuit court is entitled to impose under Wis. Stat. § 973.09(3)(a). The State also contends the circuit court is not actually transferring Galecke from the Outag-amie County jail to the Portage County jail but rather the circuit court is merely withdrawing its permission for Galecke to serve his conditional jail time in a county other than Portage County. We conclude, under our holding in State v. Schell, the circuit court erred by ordering Galecke, as a condition of probation, to refuse participation in the home detention program. We also conclude that because the circuit court lacks the authority under Wis. Stat. § 302.45 to order the intrastate transfer of a jail inmate, the circuit court erred by ordering, in the alternative, the transfer of Galecke from the Outagamie County jail to the Portage County jail.

Circuit Court's Order Requiring Galecke to Refuse Home Detention

¶ 8. Galecke argues that under Schell, the circuit court exceeded its authority by requiring Galecke to refuse participation in the home detention program as a condition of probation. We agree. In Schell, 261 Wis. 2d 841, we concluded the circuit court substantially interfered -with the sheriffs authority to manage the county jail by precluding Schell's placement on home monitoring, thereby violating the separation of powers doctrine. Id., ¶¶ 15-16. There, the sole issue on appeal was whether a circuit court possessed the power to prohibit a sheriff from ordering home monitoring for a probationer ordered to serve jail time as a probation condition. Id., ¶ 2. Similar to the instant case, Schell was placed on probation and ordered to serve jail time as a condition of probation. Id., ¶ 3. The sheriff released Schell on home monitoring. Id., ¶ 5. When the circuit court learned of her release, it amended the judgment of conviction precluding Schell's placement on home monitoring, saying it never intended for Schell to participate in the home detention program. Id., ¶¶ 1,5. We reversed the circuit court concluding, "By precluding the sheriff from releasing Schell on home monitoring, the trial court substantially interfered with the sheriffs [statutorily conferred] power" to manage the jail. Id., ¶ 16.

¶ 9. In this case, the circuit court acknowledged our holding in Schell. Then, in an effort to effectuate its sentencing goal that Galecke serve jail time, the circuit court attempted to accommodate Schell's prohibition by ordering Galecke to refuse home monitoring. Thus the appellate issue raised here is whether the circuit court can avoid the holding in Schell by modifying the conditions of probation ordering Galecke to refuse home monitoring. For the same reasons stated in Schell, we conclude the circuit court may not.

¶ 10. Wisconsin Stat. § 302.425(2) gives the county sheriff the discretion to place a defendant in the home detention program, including defendants ordered to serve jail time as a condition of probation. Schell, 261 Wis. 2d 841, ¶ 12. The statute plainly does not give any authority to the circuit court to determine which defendants are permitted to participate in the home detention program; the sheriff manages the jail, the court does not. See id., ¶ 16.

¶ 11. Although the circuit court in this case did not directly order the Outagamie County sheriff to terminate Galecke from the home monitoring program, which we concluded in Schell it could not do, the circuit court understandably sought to achieve its sentencing objectives by ordering Galecke to inform the sheriff he no longer wished to participate in the program. The circuit court was reasonably frustrated by the fact that Galecke was able to avoid an important aspect of the court's sentencing objectives by serving his conditional jail sentence on home monitoring rather than in jail as the circuit court intended. However, we conclude the circuit court may not accomplish indirectly that which it may not achieve directly. Here, the circuit court's mandate that Galecke refuse home monitoring had the same effect as the circuit court's erroneous decision in Schell-, nullification of the sheriffs decision. If the legislature intended to empower sheriffs with the decision-making authority regarding home monitoring, it cannot be that the legislature simultaneously intended to empower judges to override that authority by other means. Moreover, the public policy reasons we considered in Schell continue to apply where, although there is no direct order to the sheriff to prevent a defendant from being released on home monitoring, the sheriffs discretion as to who may be released on home monitoring is frustrated by an order to the defendant to refuse participation in home monitoring. See id., ¶ 19.

¶ 12. The State argues this case, while factually similar to Schell, is not governed by Schell because the circuit court's order here does not interfere with the Outagamie county sheriffs authority to manage the jail. Instead, according to the State, the circuit court imposed upon Galecke a condition of probation that he refuse home detention, which the State asserts the circuit court had the authority to do under the plain language of Wis. Stat. § 973.09(3)(a). Section 973.09(3)(a) grants circuit courts the authority to modify the terms and conditions of probation of an inmate, until the expiration of the probation period.

¶ 13. We agree Wis. Stat. § 973.09(3)(a) gives circuit courts the authority to modify the terms and conditions of probation; however, the exercise of the circuit court's authority in this case directly interfered with a sheriffs authority under Wis. Stat. § 302.425 to determine which inmates are placed in the home detention program. The clear effect of the circuit court's order to Galecke that he refuse to serve his conditional jail sentence on home monitoring is to direct that an inmate, housed in the Outagamie County jail, can not be placed in the home detention program. In this manner, the circuit court's order interferes with the sheriffs jail-oversight responsibilities, which we determined in Schell the circuit court could not do. Schell, 261 Wis. 2d 841, ¶ 19.

Intrastate Transfer of Jail Inmates

¶ 14. Galecke next argues, somewhat vaguely, the circuit court interfered with the Department of Corrections' right to control and supervise probationers by withdrawing its permission for him to serve his jail sentence in Outagamie County should Galecke refuse to withdraw from the home detention program. Galecke asserts Wis. Admin. Code § DOC 328.08 grants the Wisconsin Department of Corrections exclusive control over the intrastate transfer of jail inmates. The State argues the circuit court has the statutory authority to order confinement to a county jail as a condition of probation pursuant to Wis. Stat. § 973.09(4)(a); the State also argues the circuit court has the authority to modify conditions of probation pursuant to § 973.09(3)(a). Consequently, the State argues, the circuit court properly modified Galecke's condition of probation by requiring him to return to the Portage County jail should Galecke insist on staying in the home detention program in Outagamie County.

¶ 15. We believe the central question is, whether the sentencing court, once defendant is serving time in a county jail, have the authority to transfer that defendant to another county jail. We conclude the State has failed to identify a source of authority authorizing the circuit court to return Galecke to the Portage County jail.

¶ 16. Wisconsin Stat. § 302.45(1) governs the intrastate transfer of jail inmates. The statute provides, in part,

The department and any county or group of counties may contract for the cooperative establishment and use of state-local shared correctional facilities. Inmates sentenced to the Wisconsin state prisons, a county jail, a county reforestation camp or a county house of correction may be transferred to a shared facility by the department, sheriff or superintendent, respectively, under the agreement covering use of the facility ....

Wisconsin Stat. § 302.45 makes no reference to circuit courts transferring inmates from one county jail to another and thus, provides no authority for the circuit court's order in this case. A portion of the prefatory note to 1983 Wisconsin Act 332, which created what is now § 302.45, supports this interpretation:

Proposed changes: This proposal creates a statutory provision that gives specific authority to the department of health and social services (department) and to counties to contract for the establishment and joint use of correctional facilities to house offenders sentenced to prison, a county jail, a county reforestation camp or the Milwaukee county house of correction ....
Inmates may not be sentenced by a court directly to the shared facility. However, they may be transferred to the shared facility from the Wisconsin state prisons by the department; from a county jail, reforestation camp or rehabilitation facility by the sheriff or superintendent ....

¶ 17. The State argues the circuit court had the authority to order Galecke back to the Portage County jail as a change in the conditions of his probation under Wis. Stat. § 973.09(3)(a). We again recognize § 973.09(3)(a) authorizes a circuit court to change the conditions of probation. However, the State misconstrues the issue. What the circuit court did by ordering Galecke to return to the Portage County jail was to essentially issue an order to the sheriffs of Outagamie and Portage counties. Section 973.09(3)(a) provides no authority for issuing orders to county sheriffs to transfer prisoners from one county jail to another. We therefore conclude the circuit court erred by ordering Galecke transferred to the Portage County jail from the Outagamie County jail.

By the Court. — Order reversed.

DYKMAN, J.

¶ 18. 0dissenting). The legislature has given trial courts the authority to place convicted defendants on probation. Wis. Stat. § 973.09(l)(a) (2003-04). "The court may impose any conditions which appear to be reasonable and appropriate." Id. "Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof." Section 973.09(3)(a).

¶ 19. The legislature has given sheriffs the authority to release prisoners in the sheriffs care to home detention, if the prisoner agrees. Wis. Stat. § 302.425(2) and (3). The legislature has given trial courts similar authority. Wis. Stat. § 973.03(4)(a). The sheriff may transfer the prisoner between home detention and jail. Section 302.425(2).

¶ 20. The State has cited no authority permitting trial courts to impose a jail sentence which negates the sheriffs home detention determination other than the following in State v. Schell, 2003 WT App 78, ¶ 18, 261 Wis. 2d 841, 661 N.W.2d 503: "Here, the legislature has authorized sheriffs to release persons confined in county jails on home monitoring. Arguably, this undermines the court's authority to require, among other things, that a probationer's jail time actually be served in jail." Schell cites no authority for this assertion. The State , did not petition the supreme court to review Schell.

¶ 21. Schell examined a conflict between a court's authority to rescind its order placing a defendant on home detention and the sheriffs authority to place a defendant on home detention. In effect, the court ordered that Schell not be placed on home detention notwithstanding the sheriffs decision to place Schell on home detention. It was impossible to follow the instructions of both the sheriff and the trial court. We concluded that this situation required us to consider the doctrine of separation of powers. We held that the court's preclusion of Schell's placement on home monitoring substantially interfered with the sheriffs authority to place prisoners on home monitoring. As a result, the court's order violated the doctrine of separation of powers. Schell, 261 Wis. 2d 841, ¶ 15.

¶ 22. While we made the choice in Schell that the court invaded the sheriffs shared authority, the choice was simply that. We could have as easily concluded that the sheriffs authority unduly burdened or substantially interfered with the court's sentencing authority. However, Schell is written in stone, and I consider this issue no further. Cook v. Cook, 208 Wis. 2d 166, 189-190, 560 Wis. 2d 246 (1997). But the conflict between the executive and judicial branches that existed in Schell is not present here.

¶ 23. The legislature has given the sheriff the authority to place prisoners on home detention, but with a limitation: The prisoner must agree to being placed on home detention. Thus, the sheriffs authority is not absolute, and whatever other circumstances exist, the sheriff may not place an unwilling prisoner on home detention. The legislature has not placed restrictions on prisoner's decisions to withhold consent to home detention. There is nothing a sheriff can do to place an unwilling prisoner on home detention.

¶ 24. Trial courts' authority to make and rescind conditions of probation is broad; it includes "any condition which appears to be reasonable and appropriate." Wis. Stat. § 973.09(l)(a). The power to rescind those conditions is even broader, limited only by the requirement that the court have cause to do so. Section 973.09(3)(a). The legislature has not limited the court's power to those conditions approved by the sheriff.

¶ 25. The appropriate separation of powers inquiry here is, whether the powers of two branches of government overlap, and if they do, whether one branch has unduly burdened or substantially interfered with another branch. Flynn v. Department of Administration, 216 Wis. 2d 521, 546, 576 N.W.2d 245 (1998). Galecke does not meet the first requirement, let alone the second. The trial court did nothing to invade the sheriffs authority. It did not order the sheriff to do anything, and its order did not contravene a statutory authority of the sheriff as it did in Schell. Here, the two branches can exercise their given powers free of interference by the other branch. The sheriff had no expectation that he would be able to place Galecke in the home monitoring program if Galecke refused. Though the majority claims that the sheriff has "discretion to determine who participates in the home monitoring system," majority, ¶ 11 n.4, that is not the whole story. The sheriff cannot exercise discretion to force an unwilling prisoner into home detention. A court cannot interfere in discretion that a sheriff lacks. Indeed, by holding that the separation of powers doctrine prohibited the trial court from modifying the conditions of Galecke's probation, the majority has concluded that the executive branch may unduly burden and substantially interfere with the judicial branch's authority to modify a probationer's conditions of probation.

¶ 26. Nor do I agree with the majority's conclusion that the trial court lacked authority to transfer Galecke from the Outagamie County jail to the Portage County jail. As I read the majority's decision, it concludes that the State misconstrues the issue of the trial court's authority to transfer Galecke from the Outag-amie County jail to the Portage County jail as a modification of Galecke's conditions of probation. It is not the State that misconstrues the issue. The majority does not question the trial court's authority to sentence Galecke to jail as a condition of probation. Wisconsin Stat. § 973.09(4)(a) clearly gives trial courts that power. But the statute goes further: "The court may also require as a condition of probation that the probationer be confined during the period of the term of probation as the court prescribes, but not to exceed one year." (Emphasis added.)

¶ 27. The majority concludes that the court ordered two sheriffs to do something. The court did no such thing. It prescribed a condition of probation, something Wisconsin trial judges do every day.

¶ 28. This issue is too important to trial courts, sheriffs, and prosecution and defense attorneys to decide without the benefit of briefing as to the meaning of "as the court prescribes" as that phrase is used in Wis. Stat. § 973.09(4)(a). Does it mean that the trial court can sentence a defendant to any county jail? Does the court have inherent authority to sentence to jails outside the county in which the court sits? Are trial courts powerless to do more than sentence criminals to the jail of their county? Is there a difference in trial courts' authority depending on whether they are initially setting conditions of probation or amending conditions of probation? These are important questions that should be answered after briefing. Without adequate briefing, the majority has concluded that trial courts are issuing illegal orders to sheriffs when they order, as a modification of a condition of probation, a probationer to report to the jail of the county where the probationer was sentenced. Without briefing, I cannot join that conclusion. Before I would reach a result of this sort, I would order the parties to brief the issue.

¶ 29. I conclude that the majority's constitutional analysis arrives at an unnecessary conclusion, and that its statutory analysis should be undertaken with the benefit of further briefing. Accordingly, I respectfully dissent.

       Galecke has not provided any citations to the record to corroborate the facts set out in his briefs. Such failure is a direct violation of Wis. Stat. Rule 809.19(l)(d) (1999-2000) of the Rules of Appellate Procedure which requires parties to set out facts "relevant to the issues presented for review, with appropriate references to the record." (Emphasis added.) An appellate court is improperly burdened where briefs fail to properly cite to the record. See Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). In addition, Galecke failed to file a reply brief and supplied no explanation for said failure.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 302.425(2) states
      Sheriff's or superintendent's general authority. Subject to the limitations under sub. (3), a county sheriff or a superintendent of a house of correction may place in the home detention program any person confined in jail who has been arrested for, charged with, convicted of or sentenced for a crime. The sheriff or superintendent may transfer any prisoner in the home detention program to the jail.

       The dissent argues the separation of powers doctrine (which served as one of the underpinnings for our holding in State v. Schell, 2003 WI App 78, 261 Wis. 2d 841, 661 N.W.2d 503, that the circuit court may not interfere with the sheriffs authority under Wis. Stat. § 302.425(2) to place a defendant in the home detention program), is not implicated here because "the two branches [of government] can exercise their given powers free of interference by the other branch." Dissent at ¶ 25. The dissent continues that "[t]he sheriff had no expectation that he would be able to place Galecke in the home monitoring program if Galecke refused." Id. There is no dispute that under § 302.425(3) Galecke could refuse to participate in the home monitoring program. That is so because the legislature gives defendants such as Galecke the discretion to refuse participation in the program. However, the legislature has not given circuit courts the authority to interfere with the sheriffs discretion to determine who participates in the home monitoring program, as we recognized in Schell, 261 Wis. 2d 841, ¶ 16. Thus, while we agree the sheriff cannot expect to place Galecke in the home monitoring program should Galecke refuse, the sheriff could reasonably expect, under § 302.425(2), to place Galecke in the home monitoring program, if Galecke agreed, without direct or indirect interference by the circuit court, as the court did in the instant case.

       Wisconsin Stat. § 973.09(3)(a) states
      Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.

       Wisconsin Stat. § 973.09(4)(a) states, in relevant part:
      The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year. The court may grant the privilege of leaving the county jail, Huber facility, work camp, or tribal jail during the hours or periods of employment or other activity under s. 303.08(1) while confined under this subsection .... In those counties with a Huber facility-under s. 303.09, the sheriff shall determine whether confinement under this subsection is to be in that facility or in the county jail....

       This case suggests a more fundamendal question: Does the circuit court have the authority to sentence a defendant to an out-of-county jail? Neither party addresses this question. In general, circuit courts sentence defendants to the county jail located in the county where the crime was committed. As we explain, a circuit court may sentence a defendant to jails in other counties pursuant to the authority vested in them by Wis. Stat. §§ 973.03(1) and 302.34. However, neither statute vests the circuit court with the authority to directly sentence a defendant to a jail located in a different county when a "suitable" jail is located in the instant county nor do we find any clear statutory authority to do so. In any event, since the parties do not raise this question, we do not presume to answer it here.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       1 recognize that probation is not a sentence. See State Dept. of Corrections v. Schwarz, 2005 WI 34, ¶ 28, 279 Wis. 2d 223, 693 N.W.2d 703. I use the word "sentence" to avoid repeating the more accurate but cumbersome "order a probationer confined to the county jail."