author: PER CURIAM.

text:
    In re the Marriage of: Elaine Marie Ziebell, Petitioner-Respondent, v. Richard Gerald Ziebell, Respondent-Appellant.

    Court of Appeals

      No. 02-2552.

      Submitted on memoranda May 13, 2003.—

      Decided May 28, 2003.

    2003 WI App 127
    (Also reported in 666 N.W.2d 107.)

      On behalf of the respondent-appellant, the cause was submitted on the memorandum of Christopher S. Carson of Carson Law Offices, Greenfield.
    On behalf of the petitioner-respondent, the cause was submitted on the memorandum of Kevin G. Keane of Host & Keane, S.C., Brookfield.

      Before Nettesheim, RJ., Anderson and Snyder, JJ.

       Petition to review denied 11-17-03.

   PER CURIAM.

¶ 1. In this appeal, we apply Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 418 N.W.2d 14 (Ct. App. 1987), and hold that an attorney who is sanctioned by the circuit court for misconduct in a client's case must file his or her own notice of appeal in order to challenge the sanction and may not intervene in the client's appeal if the notice of appeal deadline has been missed. Because the attorney in this case did not file his own notice of appeal and the time for doing so has passed, we lack jurisdiction to consider his challenge to the attorney's fees imposed on him as a sanction for his misconduct. We also deny counsel's motion to intervene in this appeal.

¶ 2. Attorney Christopher Carson represented Richard Gerald Ziebell in his divorce. In its June 26, 2002 findings of fact, conclusions of law and judgment of divorce, the circuit court divided the parties' property and awarded maintenance. The court found that Richard failed to disclose assets during the proceedings and that Attorney Carson had an obligation to obtain information regarding those assets. The court blamed Richard and his counsel for the difficulties in the discovery process and found that these difficulties "were in part due to the misconduct of [Attorney Carson]." As a sanction for his misconduct, the circuit court imposed $5000 in attorney's fees upon Attorney Carson, payable to counsel for Elaine Marie Ziebell.

¶ 3. The September 24, 2002 notice of appeal filed by Attorney Carson states: "Notice is hereby given that Richard G. Ziebell, respondent in the trial of this case, appeals to the Court of Appeals, District II, from the entire final judgment entered on June 26, 2002 . . . ." The notice further states that the appeal is taken from the June 26 judgment addressing property division and maintenance, making a "[finding that [Richard Gerald Ziebell] and his attorney. . . committed overtrial and ordering compensation from each to [Elaine Marié Ziebell]," and "[e]xercising the court's 'inherent authority' to sanction [Attorney Carson]." The notice of appeal is signed "Carson Law Offices, Attorneys for the Respondent, By Christopher S. Carson."

¶ 4. Counsel filed the notice of appeal on behalf of Richard. However, the text of the notice of appeal also suggested that Attorney Carson intended to challenge the sanction against him. We questioned whether we had jurisdiction to review the sanction because counsel did not appeal in his own name or on his own behalf. We ordered the parties to file memoranda addressing our jurisdiction over Attorney Carson's challenge to the sanction. The parties have responded to the order. Additionally, Attorney Carson has moved to intervene in the appeal if we conclude that we do not have jurisdiction to review the sanction imposed against him.

¶ 5. We first address whether the notice of appeal filed on behalf of Richard gives us jurisdiction to review the sanction against Attorney Carson. Elaine Marie Ziebell argues that Attorney Carson was required to file a notice of appeal in his own name in order to challenge the sanction against him, and counsel cannot amend the notice of appeal to remedy this defect. Attorney Carson argues that his client may challenge the sanction imposed on counsel and attempts to distinguish Ford Motor Credit.

¶ 6. We apply Ford Motor Credit and conclude that the notice of appeal does not give us jurisdiction to review the sanction imposed on Attorney Carson. In Ford Motor Credit, the circuit court held that a defense was frivolous and assessed attorney's fees and costs against the attorney personally. Id. at 217. The notice of appeal was filed in the name of the client, not the attorney. Id. The client was not aggrieved by the fees assessed against his attorney. Id. at 218-20.

¶ 7. The analysis in Ford Motor Credit turns on whether the-attorney was aggrieved by the judgment. "A person is aggrieved if the judgment bears directly and injuriously upon his or her interests; the person must be adversely affected in some appreciable manner." Id. at 217-18. Even though a person is not a named party to the suit, he or she may nevertheless be an aggrieved party entitled to appeal from a judgment "if he or she has a substantial interest adverse to the judgment either directly or by privity." Id. at 218. The court concluded that counsel was "aggrieved by the assessment of costs and fees against him, and would have standing to appeal even though he was not a named party to the suit." Id. The court held that a notice of appeal, filed in the client's name, did not bring before the court that part of the judgment that was adverse to the client's attorney, and the notice of appeal did not suffer from a mere technical defect. Id. at 220-21. The court declined to permit an amendment of the notice of appeal to make counsel the appellant. Id. at 221. Because counsel did not file a timely notice of appeal, the court did not have jurisdiction to review counsel's challenge to the sanction. Id.

¶ 8. In this case, Attorney Carson was sanctioned, and he is aggrieved by the judgment of divorce for that reason. The notice of appeal was not filed in counsel's name, and it did not specify that counsel was also an appellant. The time for appealing has expired. See Wis. Stat. § 808.04(1) (2001-02). We lack jurisdiction to consider counsel's challenge to the sanction against him.

¶ 9. We turn to Attorney Carson's motion to intervene in this appeal to challenge the sanction against him. Attorney Carson argues that he may intervene because he is a nonparty in the circuit court proceeding and meets the requirements of Wis. Stat. § 803.09, the intervention statute. Elaine Marie Ziebell opposes intervention because counsel does not satisfy the statutory requirements for intervention.

¶ 10. We need not consider the statutory requirements for intervention because we conclude that Attorney Carson may not intervene in this appeal as a matter of law. As an aggrieved person, Attorney Carson could have filed a notice of appeal, as discussed above, and Weina v. Atlantic Mutual Insurance Co., 177 Wis. 2d 341, 501 N.W.2d 465 (Ct. App. 1993), bars intervention when a notice of appeal could have been filed.

¶ 11. In Weina, the court held that a named party in the circuit court proceedings who could have filed a notice of appeal cannot intervene in an appeal as a means of circumventing the requirement of a timely notice of appeal. Id. at 347. In Weina, a minor was struck in the head by a softball during a softball game, and she and her parents sued the sponsoring entity, Mt. Pleasant Lutheran Church, and its insurer, Atlantic Mutual Insurance Company, and the batter, John Lovdahl, and his insurer, Safeco Insurance Company. Id. at 344. Lovdahl and Safeco did not file a cross-claim against their codefendants, Mt. Pleasant and Atlantic Mutual. Id. The circuit court granted summary judgment in favor of Mt. Pleasant and Atlantic Mutual on the grounds that the church was immune from suit under the recreational immunity statute. Id. The minor and her parents appealed; Lovdahl and Safeco did not, but later sought to intervene based upon their "real and direct interest" in the appeal because the appeal might impact their contribution claim. Id. at 344-45.

¶ 12. The Weina court first addressed whether Lovdahl and Safeco had a right to appeal the judgment dismissing their codefendants, Mt. Pleasant and Atlantic Mutual. Id. at 345. The court concluded that Lovdahl and Safeco were aggrieved because the dismissal of these parties diminished the pool of resources available to satisfy any judgment entered in favor of the minor and her parents. Id. at 345-46. Lovdahl and Safeco were aggrieved by the judgment because it increased their potential liability. Id. Because Lovdahl and Safeco were aggrieved by the judgment, they could have appealed it. Id. at 347.

¶ 13. The Weina court then addressed Lovdahl's and Safeco's attempt to intervene in the appeal. The court concluded that by intervening, Lovdahl and Safeco would become full parties to the appeal, thereby circumventing the jurisdictional time limit for commencing the appeal. Id. The court declined to permit Lovdahl and Safeco "to do indirectly what they cannot do directly." Id.

¶ 14. Attorney Carson, while not a named party, was aggrieved by the judgment of divorce and had standing to file a notice of appeal under Ford Motor Credit. Therefore, even though Attorney Carson was not a named party in the circuit court, permitting .him to intervene contravenes Weina.

¶ 15. Attorney Carson argues that he is a non-party and may intervene under City of Madison v. WERC, 2000 WI 39, 234 Wis. 2d 550, 610 N.W.2d 94. This case does not aid Attorney Carson. In City of Madison, the employment circumstances of a fire department employee became a source of dispute between the union and the City of Madison. Id., ¶¶ 2-3. The City of Madison Police and Fire Commission (PFC) declined to provide a hearing at the union's request, and the union then filed a grievance with the City under its collective bargaining agreement. Id., ¶¶ 3-4. The City declined the union's request to arbitrate under the collective bargaining agreement, and the union filed a complaint with the Wisconsin Employment Relations Commission (WERC). Id., ¶ 4. The City lost, and appealed to the circuit court and court of appeals. Id. at ¶¶ 4-5. At the court of appeals level, the PFC sought to intervene after the time for filing a notice of appeal had expired. Id., ¶ 5. The court of appeals denied the intervention request because the time for filing a notice of appeal had expired. Id.

¶ 16. The supreme court held that the PFC, as a nonparty, could seek to intervene if it satisfied the requirements of the intervention statute, Wis. Stat. § 803.09. City of Madison, 234 Wis. 2d 550, ¶ 8. In reaching this conclusion, the court referred to the derivation of the term "intervenor" as signifying a process whereby "a third person is allowed to interpose for the assertion of some collateral, implicit or ulterior right adverse to that of either or both of the parties." Id., ¶ 11 n.7 (citation omitted).

¶ 17. In contrast to the PFC's collateral interest in City of Madison, Attorney Carson's right in this case is not collateral. Counsel is aggrieved by the judgment of divorce which requires him to pay $5000 in attorney's fees for his misconduct. Counsel's level of interest far exceeds that of the nonparty PFC. Furthermore, the City of Madison court recognized Weina and reaffirmed the distinction between parties and nonparties in the context of intervention. City of Madison, 234 Wis. 2d 550, ¶¶ 9-10. Attorney Cars on cannot avail himself of nonparty intervention under City of Madison.

¶ 18. In sum, we conclude that Attorney Carson could have filed a notice of appeal in his own name to challenge the sanction imposed on him for his misconduct. Because he did not, we lack jurisdiction to review the sanction. As an aggrieved person who could have filed a notice of appeal, Attorney Carson may not intervene in his client's appeal to challenge the sanction imposed against him for his misconduct.

By the Court. — Jurisdiction determined; motion denied.

       Richard is aggrieved by the assessment of attorney's fees against him, and he can raise that issue in this appeal. However, Richard.is not aggrieved by the assessment of fees against Attorney Carson, and he cannot appeal that aspect of the judgment of divorce. See Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 218-20, 418 N.W.2d 14 (Ct. App. 1987).

       Wisconsin Stat. Rule 809.10(l)(f) (2001-02) states that "[a]n inconsequential error in the content of the notice of appeal is not a jurisdictional defect." The cases addressing inconsequential error focus on the description of the document appealed from. See Rhyner v. Sauk County, 118 Wis. 2d 324, 326, 348 N.W.2d 588 (Ct. App. 1984). This is not the case here. When the notice of appeal is not signed by the proper party, the notice of appeal is fatally flawed, and this court is deprived of jurisdiction. Jadair Inc. v. U.S. Fire Ins. Co., 209 Wis. 2d 187, 211-12, 562 N.W.2d 401 (1997). In State v. Seay, 2002 WI App 37, ¶¶ 9-10, 250 Wis. 2d 761, 641 N.W.2d 437, review denied by State v. Tillman, 2002 WI 121, 257 Wis. 2d 116, 653 N.W.2d 889 (Wis. Sept. 3, 2002) (No. 00-3530), we held that the failure of a pro se appellant to sign a notice of appeal is not a fatal defect as long as a signature is later supplied. Seay does not apply in this case because the notice of appeal was signed.

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


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Siu Wing Leung, Plaintiff-Appellant, v. City of Lake Geneva, Cathleen M. Ahlgren and Anthony Saia, Defendants-Respondents.
    Court of Appeals

      No. 02-2747.

      Submitted on briefs April 9, 2003.

    — Decided May 28, 2003.

    2003 WI App 129
    (Also reported in 666 N.W.2d 104.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of David C. Williams of Allen, Harrison, Williams, McDonell & Swatek, LLP, Lake Geneva.
    On behalf of the defendants-respondents, the cause was submitted on the brief of John M. Bruce of Whyte Hirschboeck Dudek S.C., Manitowoc.
    Before Brown, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. Siu Wing Leung appeals from a judgment of the circuit court dismissing his complaint of a violation of the open meetings law as barred by the two-year statute of limitations, Wis. Stat. § 893.93(2)(a) (2001-02). He argues that he sought relief in equity and that there is no statute of limitations in equity; and that if a statute of limitations does apply, it is one of six years rather than two. He also argues that the discovery rule should apply. We hold that the applicable statute is § 893.93(2) and so affirm.

¶ 2. Leung filed a complaint on January 3, 2002, alleging violation(s) of the open meetings law by the City of Lake Geneva, Cathleen M. Ahlgren and Anthony Saia on or before June 14, 1999. The complaint requested judgment:

a) For monetary penalties against the Defendants Ahl-gren and Saia pursuant to § 19.96, Wis. Stats.
b) For a declaratory judgment determining and adjudicating the action of the Lake Geneva City Council on June 14, 1999, denying the proposed transfer of the liquor license from D'Agostino's on the Lake, Inc. to Su Wings Corporation to be void pursuant to § 19.97(3) and (4), Wis. Stats.
c) For the costs of prosecution of this action, including reasonable attorney's fees, upon the failure of the District Attorney to so prosecute.
d) For such other and further relief as the Court deems just and equitable.

¶ 3. This case presents a very narrow legal issue: what statute of limitations applies to actions claiming a violation of the open meetings law? Because this is an issue of statutory interpretation, our standard of review is de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). Although our standard of review is de novo, we value the written decision of the trial court. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993). Since the statute is clear, we need not look beyond its plain language in order to ascertain its meaning. J.A.L. v. State, 162 Wis. 2d 940, 962, 471 N.W.2d 493 (1991).

¶ 4. The first question is whether Leung has brought either an equity action or a declaratory judgment action. Leung claims that he is bringing this action as a "private attorney general" under Wis. Stat. § 19.97(4), and that as such he can seek equitable relief under § 19.97(2). However, merely mentioning the word "equity" or a variant thereof is not sufficient to invoke the equity jurisdiction of the court. The appellant must at least alert the court as to what form of equitable relief (injunction, mandamus, etc.) he or she is seeking. The court must liberally construe pleadings, United Capitol Ins. Co. v. Bartolotta's Fireworks Co., 200 Wis. 2d 284, 298, 546 N.W.2d 198 (Ct. App. 1996), but that does not mean we must construe them so as to create a form of relief that the appellant has not even pled. Accordingly, Leung did not bring this action in equity.

¶ 5. Leung requests declaratory relief under Wis. Stat. § 806.04, but the Supreme Court of Wisconsin has held declaratory judgment to be reserved for those without other adequate recourse available. See State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 671, 239 N.W.2d 313 (1976) (superceded by statute/rule as stated in State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987). In this case, the available recourse is the relief set forth in Wis. Stat. § 19.97. We are not persuaded by Leung's argument that the court's concerns in Conta are not present in this case.

¶ 6. The second question is whether Wis. Stat. § 893.93(2) is applicable to violations of the open meetings law. Section 893.93(2)(a) provides:

The following actions shall be commenced within 2 years after the cause of action accrues or be barred:
(a) An action by a private party upon a statute penalty, or forfeiture when the action is given to the party prosecuting therefor and the state, except when the statute imposing it provides a different limitation.

The Wisconsin Supreme Court has held that the two-year statute of limitations applies where the action by a private party upon a statute penalty is for the benefit of the public, while the six-year statute of limitations applies when private individuals seek private relief. See Erdman v. Jovoco, Inc., 181 Wis. 2d 736, 760-62, 512 N.W.2d 487 (1994). Complaints under the open meetings law are not brought in the individual capacity of the plaintiff but on behalf of the state. Cf. Fabyan v. Achtenhagen, 2002 WI App 214, ¶¶ 10-13, 257 Wis. 2d 310, 652 N.W.2d 649 (If a complaint under Wis. Stat. § 19.97 is not brought in the name of, and on behalf of, the state, the error is fatal and deprives the court of competency to proceed.). Thus, an action brought under the open meetings law falls squarely under § 893.93(2).

¶ 7. Finally, Leung argues that the discovery rule should apply to violations of the open meetings law. The Wisconsin Supreme Court has declined to extend the discovery rule to causes of action not sounding in tort. State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 148, 580 N.W.2d 203 (1998). Leung's argument that the discovery rule should apply on grounds of public policy was effectively answered by the court in Chrysler Outboard Corp. when it held "the decision to adopt an open-ended discovery rule of this sort is a course of action that should be undertaken only after substantial review by the legislature." Id. at 156.

¶ 8. Because Leung brought this action as a private attorney general under Wis. Stat. § 19.97, and therefore acted on behalf of the public, the applicable statute of limitations is Wis. Stat. § 893.93(2). We affirm.

By the Court — Judgment affirmed.

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


author: PETERSON, J.

text:
    In the Matter of the Guardianship of Emma W.: Family Services, Inc. of Barron County, Appellant, v. Gary W. and Paul W., Respondents.
    Court of Appeals

      No. 02-3139-FT

      Submitted on briefs March 26,2003.

    — Decided May 28, 2003.

    2003 WI App 132
    (Also reported in 666 N.W.2d 84.)

      On behalf of the appellant, the cause was submitted on the briefs of Peter E. Grosskopf of Grosskopf & Black, LLC, Eau Claire.
    On behalf of the respondents, the cause was submitted on the brief of Alan L. Sykes of Sykes Law Office, Rice Lake.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Family Services, Inc. of Barron County, guardian of Emma W, appeals an order denying its request to recover funds that had been held in joint accounts by Emma and her sons, and ordering the sale of her real estate. Family Services argues: (1) the appointment of a guardian precludes the co-owners of joint accounts from removing the ward's funds; (2) it should have been allowed to present evidence of Emma's intent to prohibit withdrawal by the co-owners; and (3) the court should have permitted Family Services to mortgage Emma's home rather than requiring it to sell the home. We reject Family Service's first argument. However, we agree with its second argument and remand to the trial court for a hearing regarding Emma's intent with respect to the joint accounts. The trial court may at that time reconsider the sale of the real estate depending on the outcome of the hearing. We therefore reverse the order for sale for later reconsideration.

BACKGROUND

¶ 2. Family Services was appointed Emma's guardian in January 2002. It submitted a general inventory, which listed certificates of deposit (CDs) held jointly by Emma and her sons, Paul and Gary. The combined amount of the CDs was $103,590. In June 2002, Family Services received notice through the sons' attorney that the sons had cashed the CDs. Emma's remaining assets consisted of a solely owned account with less than $12,000 and her home, valued at $161,700.

¶ 3. Family Services filed a petition requesting return of the funds, from the CDs. At the hearing, Family Services produced Emma's will, which provided a specific bequest of her home to Paul Wilson, a family friend, with the residue to be divided between Emma's sons, Paul and Gary. Family Services argued that removing the funds altered Emma's estate plan and constituted a divestment for medical assistance purposes. Family Services also showed that Paul Wilson was currently living in Emma's home and paying rent, and requested that he be permitted to continue renting the home. Family Services asked to be allowed to mortgage the home to pay for Emma's nursing home care. This request was supported by Emma's guardian ad litem.

¶ 4. The trial court held that, as joint owners, Emma's sons, Paul and Gary had full authority to withdraw the funds. The court took no evidence of Emma's intent regarding the joint accounts at the hearing. The court also ordered Emma's home sold to pay for her care, rather than allow it to be mortgaged. Family Services appeals.

STANDARD OF REVIEW

¶ 5. Resolution of the issues in this appeal turns on the interpretation of statute, which presents a question of law we review independently. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). If the terms of a statute are clear and unambiguous, we apply them as written, without any further inquiry into their meaning. State v. Charles R.P., 223 Wis. 2d 768, 771-72, 590 N.W.2d 21 (Ct. App. 1998).

DISCUSSION

¶ 6. Wisconsin Stat. § 880.19 requires a guardian to protect and preserve the ward's funds, while Wis. Stat. § 705.03 permits the joint owner of a bank account to withdraw all the funds in the account. Family Services contends these statutes conflict because a guardian cannot protect and preserve a ward's funds if joint owners are able to remove funds from the accounts. Family Services also argues that public policy supports preserving the ward's assets over enforcing a joint owner's ability to withdraw funds.

¶ 7. However, Family Services cites no authority stating that imposing a guardianship supercedes the rights of a joint owner of an account. In fact, Wis. Stat. § 705.03 clearly states otherwise. The statute provides that unless there is evidence of different intent, "The application of any sum withdrawn from a joint account by a party thereto shall not be subject to inquiry by any person, including any other party to the account and notwithstanding such other party's minority or other disability...." First, a guardianship is an "other disability." Second, and more importantly, Wis. Stat. § 705.01 defines a "party" as including a guardian "unless the context indicates otherwise." A guardian, therefore, steps into the shoes of the ward and cannot prevent another party from withdrawing funds from a joint account. As a result, the mere fact that a guardianship is established does not preclude a joint owner of an account from removing the funds.

¶ 8. Family Services also argues that the court erred by not allowing it to present evidence of Emma's intent not to permit her sons to withdraw funds from the accounts. It relies on Wis. Stat. § 705.03, which provides that co-owners may remove funds from a joint account "[ujnless there is clear and convincing evidence of a different intent."

¶ 9. Paul and Gary do not appear to argue that a guardian should not be allowed to present evidence of contrary intent. Instead, they contend that Family Services had the opportunity to introduce evidence of intent but did not. They state: "The Guardian can not on appeal, now complain that the trial court erred because the Guardian neglected to call witnesses at its own motion." They also argue the facts regarding creation and termination of the joint accounts and guardianship are not contested.

¶ 10. At the hearing, however, Family Services asserted there were some factual issues that would require an evidentiary hearing. The trial court was not prepared to hold the hearing at that time, stating, "I don't think there is anything else we can do today." Family Services did not neglect to present evidence of intent. Instead, the court was not prepared to conduct an evidentiary hearing at the time of the hearing. We conclude Family Services should be given the opportunity to present evidence. We therefore remand to the trial court for an evidentiary hearing on Emma's intent.

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

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 880.19(1) provides:

        General duties. The guardian of the estate shall take possession of all of the ward's real and personal property, and of rents, income, issues and benefits therefrom, whether accruing before or after the guardian's appointment, and of the proceeds arising from the sale, mortgage, lease or exchange thereof. Subject to such possession the title of all such estate and to the increment and proceeds thereof shall be in the ward and not in the guardian. It is the duty of the guardian of the estate to protect and preserve it, to retain, sell and invest it as hereinafter provided, to account for it faithfully, to perform all other duties required of the guardian by law and at the termination of the guardianship to deliver the assets of the ward to the persons entitled thereto.

       Wisconsin Stat. § 705.03 provides:
      Unless there is clear and convincing evidence of a different intent:
      (1) A joint account belongs, during the lifetime of all parties, to the parties without regard to the proportion of their respective contributions to the sums on deposit and without regard to the number of signatures required for payment. The application of any sum withdrawn from a joint account by a party thereto shall not be subject to inquiry by any person, including any other party to the account and notwithstanding such other party's minority or other disability, except that the spouse of one of the parties may recover under s. 766.70. No financial institution is liable to the spouse of a married person who is a party to a joint account for any sum withdrawn by any party to the account unless the financial institution violates a court order.

       This issue was also discussed in Randall v. Felt, 2002 WI App 157, ¶¶ 14-15, 256 Wis. 2d 563, 647 N.W.2d 157 (citing Wachniak v. Frank, 140 Wis. 2d 429, 410 N.W.2d 621 (Ct. App. 1987)).


author: HOOVER, EJ.

text:
    James R. Welch and Linda L. Welch, Plaintiffs-Appellants, v. City of Appleton and ABC Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 02-3259-FT.

      Submitted on briefs March 28,2003.

    — Decided May 28, 2003.

    2003 WI App 133
    (Also reported in 666 N.W.2d 511.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Charles D. Koehler and Herrling, Clark, Hartzheim & Siddall Ltd., of Appleton.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Christopher R. Behrens, assistant city attorney, of the City of Appleton.

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

       Petition to review denied 10-1-03.

   HOOVER, EJ.

¶ 1. James and Linda Welch appeal a summary judgment granted to the City of Appleton. The trial court concluded that the City was entitled to governmental immunity under Wis. Stat. § 893.80(4) after an overflowing sewer caused the Welches' home to collapse to a point requiring total demolition. The Welches contend that the City created a nuisance and was negligent, breaching its ministerial duty to maintain the sewer. Both of the Welches' theories, if correct, preclude applying the immunity doctrine. The Welches also claim there are genuine issues of material fact to be resolved. While we sympathize with the Welches' situation, we reject their arguments and affirm the judgment.

Background

¶ 2. The Welches owned a home in Appleton. A City storm sewer runs under their property and at the time of this incident, a vertical drain pipe with an open grate was located approximately fifteen feet from the house's rear foundation. Sometime in 1995, the City extended the height of the pipe at the Welches' request.

¶ 3. On June 11, 2001, the City experienced an extraordinary rainstorm. At the peak of the storm's intensity, two inches of rain fell in ten minutes. There was so much water in the system that the resulting pressure created a twenty-foot geyser from the City's pipe in the Welches' yard. The geyser lasted about thirty minutes. Because the ground sloped downward from the pipe toward the house, the water naturally pooled against the foundation causing it to collapse, and bringing down most of the house as well. The collapsed home was irreparable and had to be demolished, although the site was re-excavated and the house rebuilt.

¶ 4. Following the event, the City sealed the pipe with concrete and relocated the drain on the property to an area of lower elevation than the home. The sewer system was also evaluated, but the City found no obstructions and all mechanical components were in working order.

¶ 5. The Welches sued the City, claiming that the City maintained a nuisance and that it was negligent. The City moved for summary judgment on grounds of governmental immunity in Wis. Stat. § 893.80(4). The court determined that the City was not liable for damages caused if the sewer "lacks the capacities under a single-event storm. ... The single-event episode is an exceeding-the-capacity case. The law says that governmental immunity applies to such a case." The court accordingly granted the City summary judgment. The Welches appeal.

Discussion

¶ 6. We review a summary judgment decision using the well-known methodology that the circuit court also employs. See Policemen's Annuity & Benefit Fund v. City of Milwaukee, 2001 WI App 44, ¶ 9, 246 Wis. 2d 200, 630 N.W.2d 236; Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Whether immunity applies is a question of law that we resolve without deference to the trial court. Caraher v. City of Menomonie, 2002 WI App 184, ¶ 9, 256 Wis. 2d 605, 649 N.W.2d 344.

¶ 7. Wisconsin Stat. § 893.80(4) states:

No suit may be brought against any .. . political corporation, governmental subdivision or any agency thereof for ... intentional torts . .. nor may any suit be brought against such corporation, subdivision or agency... for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions!]

I. Maintaining a Private Nuisance

¶ 8. The Welches first point out that the immunity doctrine is not a shield against a nuisance claim. This is correct — no statutory or common law immunity doctrine empowers a public body to maintain a private nuisance. Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 441, 400 N.W.2d 493 (Ct. App. 1986). However, the Welches' argument assumes that the sewer was a private nuisance. We conclude that it was not.

¶ 9. The legal basis for a nuisance claim is a question of law we review without deference to the trial court. Stunkel v. Price Elec. Co-op., 229 Wis. 2d 664, 668, 599 N.W.2d 919 (Ct. App. 1999). In Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), we repeated the criteria for a private nuisance claim. A plaintiff must demonstrate that the "actor's conduct is a legal cause of the invasion [by] showing that: (1) the invasion is intentional and unreasonable, or (2) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ul-trahazardous conduct." Id. at 747 (citation omitted). In Menick, as here, there is no allegation that the City's conduct was intentional.

¶ 10. We therefore turn to the second prong of the nuisance test. The Welches argue that under this standard, they can maintain a nuisance claim against the City if they can show the City (1) negligently operated and failed to maintain an adequate sewer system or (2) by its actions unreasonably and substantially interfered with the Welches' comfortable life, health, or safety. See Anhalt v. Cities & Villages Mut. Ins. Co., 2001 WI App 271, ¶¶ 26-27, 249 Wis. 2d 62, 637 N.W.2d 422.

A. Negligent Operation and Maintenance

¶ 11. Establishing negligence requires proof of causation. Menick, 200 Wis. 2d at 747. The plaintiff in Menick could not meet that burden, id. at 748, hut the Welches claim they have. Regarding the operation and maintenance of the sewer, the Welches contend their expert, engineer John Davel, has offered proof of several ways in which the city was negligent. Davel contends that: (1) the ponding in the Welches' backyard was foreseeable; (2) flooding was foreseeable because the system was designed for a ten-year event at best; (3) the pipe in the Welches' yard could have been capped or relocated in 1995; (4) the lack of a safety valve may have contributed to the flood; and (5) the City should have done an evaluation of the water's escape plan in 1995.

¶ 12. In Anhalt, however, we clarified the proof required, stating that to prevail on the negligent operation and maintenance theory, the plaintiffs "must show that the system itself failed due to negligence." Id., ¶ 26. There we concluded that the record did not so demonstrate but, rather, "The city engineer. .. confirmed that the sewer and the pumps were working." Id. We have the same situation in this case. The City's engineer averred that the system's components were functioning normally both before and after the storm. The system's problem was not mechanical. Rather, it was simply unable to keep pace with the extraordinary rainfall.

¶ 13. The Welches do not dispute that the sewers tested in working order. Moreover, they acknowledge that "during a heavy rainstorm, the storm sewer became surcharged with pressure causing storm water to exit the manhole drain. . . ." (Emphasis added.) Yet they argue that Davel's opinions constitute "conflicting evidence regarding the cause of the problem. . . ." Davel, however, has not proven that the existing system failed. He has only provided different design specifications. Approval of the design and construction of a sewer system are generally discretionary acts. See Menick, 200 Wis. 2d at 745. But, cf., Bratonja v. City of Milwaukee, 3 Wis. 2d 120, 123-24, 87 N.W.2d 775 (1958). Even if the system is poorly designed, a municipal government is immune for this discretionary act. See Anhalt, 249 Wis. 2d 62, ¶ 12 (city installed one-year storm sewer and knew that it was likely to flood annually, hut still had immunity) (quoting Allstate Ins. Co. v. Metropolitan Sewerage Comm'n, 80 Wis. 2d 10, 15-16, 258 N.W.2d 148 (1977)).

B. Unreasonable or Substantial Interference

¶ 14. Absent a showing of negligence, a plaintiff could still allege nuisance by claiming the City engaged in an unreasonable activity that substantially interfered with the comfortable enjoyment of the life, health, or safety of the plaintiffs. Anhalt, 249 Wis. 2d 62, ¶ 27. To prevail in the context of this case, the Welches would have to show that this is a collected water case; in other words, that the flood waters were diverted from the sewer system onto their private property. See id.

¶ 15. Here, the trial court concluded that this was not a collected water case, but an "exceeding-the-capaeity" case. While such a determination may generally be viewed as a factual issue, and potentially inappropriately determined on a summary judgment motion, we conclude as a matter of law that this case is an "exceeding-the-capacity" case and not a collected water case. Because of the sparse jurisprudence defining "collected water" and "exceeding-the-capacity" cases, we deem it appropriate to further discuss the issue.

¶ 16. The Welches emphasize that the sewer system collected the surface water and then diverted or discharged it onto their property. Their argument appears to be that any time a sewer gathers water and discharges it elsewhere it is a collected water case. An exceeding-the-capacity case, however, is one where the sewer is simply incapable of draining all the water from the ground surface, leaving the surface water to cause damage.

¶ 17. There are no formal definitions for either collected water or exceeding-the-capacity cases. However, our review of the case law leads us to conclude that collected water cases involve an element of the sewer's design, either intentionally or negligently included, that regularly diverts the sewer's water load to a resident's private property. There is no evidence that this design element exists in this case.

¶ 18. In Bratonja, the supreme court held that a "city is not obligated to build a sewer at all, or to build one large enough to carry away all the water in the street as a result of even ordinary rainfall." Bratonja, 3 Wis. 2d at 123. However, if the City first collects the water in the sewer and thereafter, by negligent construction or maintenance allows it to escape onto adjacent land, the City may be liable. Id. at 124. Thus, Bratonja created an exception to the general rule of immunity for sewer design.

¶ 19. We recently summarized this holding in Anhalt, where we wrote: "the City is under no obligation to collect the rainwater that may accumulate in the street, but if it takes possession of the water and assumes responsibility for it, the City may be liable in nuisance for subsequently discharging the water onto adjoining property." Anhalt, 249 Wis. 2d 62, ¶ 24 (emphasis added). Both cases state that the City may be liable, not that it will be liable, so we must determine under what circumstances the City is liable; that is, when may a case be termed a collected water case.

¶ 20. In Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W 668 (1901), the City's sewer system emptied into a river that passed Winchell's property. As the volume of sewage increased, the stench caused illness. Thus, we concluded in Anhalt that Winchell involved the intentional and unreasonable discharge of sewage into the river, not the capacity of the system. See Anhalt, 249 Wis. 2d 62, ¶ 25. More recently, in Hill-crest, the city system collected rainwater, discharging it through a culvert onto the club's property causing erosion. Hillcrest, 135 Wis. 2d at 434. Both cases fit into the Bratonja exception — collecting water and allowing it to escape with regularity, intentionally or negligently, onto adjacent land permits the trial court to find liability for the system design.

¶ 21. By contrast, in Menick, one of the plaintiffs arguments was that she should be allowed to proceed under the theory of res ipsa loquitur because it was undisputed that the City's sewer was the conduit through which her home flooded. Menick, 200 Wis. 2d at 748. Essentially, the Welches argue the same thing. We declined to allow Menick to proceed on that theory because she could not show the city had done anything to constitute the legal cause of the flood. Id.

¶ 22. In both Winchell and Hillcrest, the design of each city's system perpetually moved the water from the system and past or through the plaintiffs land, not just during a heavy rain or flood event. In Menick, as here, the sewer water would not, under normal circumstances, invade the private property. The Welches do not contend otherwise. The cities took care in designing their sewers to avoid creating such a nuisance and invasion. Indeed, as the trial court noted, "this was the only time that the [Welches] had ever experienced drainage problems." The fact that during an unforeseen and irregular rainstorm, the otherwise fully operational sewer could not process the falling water fast enough resulting in a back-up within the system does not make this a collected water case.

II. Negligent Performance of a Ministerial Duty

¶ 23. The Welches alternatively argue that the City is not entitled to immunity because it failed to fulfill a ministerial duty. Wisconsin Stat. § 893.80(4) only immunizes against actions done in fulfilling discretionary duties. A duty is ministerial "only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Lister v. Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976). Or, as clarified in C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988), a public officer's duty is ministerial only where "the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act."

¶ 24. The Welches contend that after the City elevated the pipe in their yard in 1995, it had a ministerial duty to maintain the pipe so it would not discharge water onto the Welches' property. Maintenance of sewers so as not to cause injury is generally considered ministerial compared to the discretionary decision relating to design or implementation of a system. See Menick, 200 Wis. 2d at 745.

¶ 25. Here, there was no required pipe "maintenance." Webster's Third New Int'l Dictionary 1362 (un-abr. 1993) defines the verb "maintain" as, most appropriately, "to keep in a state of repair." It is undisputed that both before and after the storm the system was working.

¶ 26. Moreover, the "maintenance" of lengthening the pipe in 1995 was done at the Welches' request. They wanted to create a more gradual slope to their yard, and the pipe apparently had to be extended to fit into the slope. We decline to hold that the City's discretionary act of accommodating the Welches' landscaping concerns subsequently bound the City to a ministerial duty.

¶ 27. While the Welches suggest the City had a duty to maintain the system só as not to discharge onto their property, they are essentially arguing that the City poorly designed the sewer. That is not a question of maintenance: Design of a sewer is discretionary, subject only to the Bratonja exception that is inapplicable here. Tragic as the circumstances are, a party cannot work backward from an adverse consequence to create a duty that is "absolute, certain and imperative." Kimps v. Hill, 200 Wis. 2d 1, 12, 546 N.W.2d 151 (1996).

¶ 28. The Welches further argue that there is the same factual dispute underlying this negligence claim as there was in the nuisance claim. Relying on the same argument — Davel's opinions — they write, "As addressed supra, the Welchs have provided expert testimony which indicates that the Defendant's conduct was the cause of. . . their injuries." We may decline to address arguments that simply incorporate earlier portions of a brief. See Calaway v. Brown County, 202 Wis. 2d 736, 750-51, 553 N.W.2d 809 (Ct. App. 1996). However, we rejected the argument above on its merits and reject it here on the merits as well. Davel's testimony only provides suggestions for better designs, not proof that the City caused the loss.

¶ 29. As indicated, we sympathize with the damages the Welches suffered. However, there is nothing in the record to show that the City maintained a nuisance in the sewer or failed to perform a ministerial duty in maintaining the sewer.

By the Court. — Judgment affirmed.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       There were also allegations before the trial court that the City was maintaining the sewer without a valid easement and that the City had engaged in a taking. However, those issues are not before us on appeal.

       Legislative, quasi-legislative, judicial, and quasi-judicial functions are collectively termed "discretionary acts." See Anhalt v. Cities & Villages Mut. Ins. Co., 2001 WI App 271, ¶ 11, 249 Wis. 2d 62, 637 N.W.2d 422. Discretionary acts are the opposite of ministerial acts, discussed later in this opinion.

       As to the contention that the ponding was foreseeable, we are persuaded by the City's argument that ponding is always foreseeable if one contemplates the appropriate circumstances, such as a 100-year storm event. Moreover, suggesting the City should have installed a system to handle more than a ten-year event is akin to suggesting a new design.

       Assuming we might conclude that the Welches made an inadequate showing, they invite us to remand to allow Davel to complete his analysis of the information he obtained. However, the Welches should have asked the trial court to postpone its summary judgment hearing if they needed more time to analyze evidence. By not requesting an extension, they have not preserved the right to request one now.

       The City submitted an affidavit from a worker affirming that the Welches made this request. The Welches did not file a reply brief to rebut this assertion by the City, and thus they have admitted the extension was done at their request. See Charolais Breeding Ranches v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (An opponent's argument not refuted is deemed admitted.).