author: NETTESHEIM, EJ.

text:
    Lake Country Racquet & Athletic Club, Inc., Plaintiff-Appellant, v. Village of Hartland, Defendant-Respondent, YMCA of Waukesha County, Defendant.
    Court of Appeals

      No. 02-0198.

      Submitted on briefs September 26,2002. —
    Decided November 13, 2002.

    2002 WI App 301
    (Also reported in 655 N.W.2d 189.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James W. Hammes of Cramer, Multhauf & Hammes, L.L.P. of Waukesha.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Raymond J. Pollen and Amy J. Doyle of Crivello, Carlson & Mentkowski, S.C. of Milwaukee.
    Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 1-21-03.

   NETTESHEIM, EJ.

¶ 1. Lake Country Racquet & Athletic Club, Inc. appeals from a summary judgment dismissing its declaratory judgment action against the Village of Hartland. Lake Country contended that a conveyance of land by the Village to the YMCA of Waukesha County was contrary to the village ordinances and state laws. The trial court determined that Lake Country lacked standing to pursue a declaratory judgment against the Village. Because Lake Country has failed to demonstrate any personal stake in the outcome of this action or that it is directly affected by the conveyance, we uphold the trial court's standing ruling. We therefore do not reach the merits of Lake Country's challenge and we affirm the judgment.

BACKGROUND

¶ 2. On September 14, 1998, the Hartland village board passed a resolution creating Tax Incremental Financing District No. 2 (TID No. 2) which included the approval of the project plan for that district. The Village placed all of the lands located within the boundaries of TID No. 2, which included Outlot 5, in the B-5 (light industrial zoning) classification of the Village of Hart-land Zoning Code. The Village and the YMCA then began discussions about the possible conveyance of Outlot 5 to the YMCA. If a sale was consummated, the YMCA proposed to construct a recreational facility on the site.

¶ 3. At this same time, an entity known as Wis-park was planning to develop the Cottonwood Commerce Center, which was located within TID No. 2. Outlot 5 was located in the proposed area of the Commerce Center. In December 1998, the Village and Wispark reached an agreement for the development of the Commerce Center. Besides the Commerce Center project, Wispark was also developing River Reserve, a residential development on land adjacent to the Commerce Center. In developing the River Reserve area, Wispark was obligated to pay impact fees to the Village. On December 14, 1998, the Village and Wispark agreed that, in partial satisfaction of its impact fees obligation, Wispark would transfer Outlot 5 to the Village. On April 20, 1999, in keeping with this agreement, the Village acquired ownership of Outlot 5 from Wispark.

¶ 4. According to the village administrator, Wallace Thiel, Outlot 5 had been mistakenly zoned as a B-5 classification at the time TID No. 2 was created. Therefore, in May 1999, the Village began taking steps to rezone the lot from a B-5 classification to a P-1 park district classification which allowed for recreational development. On September 13, 1999, the board formally approved this rezoning. Thereafter, the Village continued its discussions with the YMCA for the possible transfer of Outlot 5.

¶ 5. Learning of these developments, Lake Country filed a notice of claim with the Village on May 17, 1999, contending that the rezoning of Outlot 5 and the contemplated conveyance of the land to the YMCA violated the village ordinances and state law pertaining to the acceptance, dedication and use of park land. Lake Country subsequently filed an action seeking a declaratory judgment against the Village. The matter was assigned to Judge Katherine Foster.

¶ 6. At summary judgment, Judge Foster ruled that the rezoning of Outlot 5 was void because it violated the provisions of the TID Project Plan, which was adopted at the time TID No. 2 was created. In response to this ruling, the Village amended the project plan for TID No. 2 pursuant to Wis. Stat. § 66.0617 (1999-2000) to allow for either an amendment of the plan itself or an amendment of the B-5 zoning designation. In response, the plan commission opted for the latter — recommending that the B-5 zoning regulations be amended to allow public and private recreational uses and purposes consistent with the uses permitted under the P-1 (park district) regulations.

¶ 7. The village board approved this recommendation and, on December 11, 2000, the board enacted ordinance § 17.03(30)(d) 10 of the Village Zoning Code, which recognized public and private recreational uses as conditional uses in a B-5 zoning district. Under this amendment, private recreational use was permitted on Outlot 5 as an approved conditional use.

¶ 8. During the fall of 2000, the Village solicited offers for the purchase and development of Outlot 5. The only proposal submitted before the prescribed deadline was from the YMCA. On March 12, 2001, the Village agreed to sell Outlot 5 to the YMCA for $400,000 and the YMCA agreed to construct a recreational facility on the property.

¶ 9. Lake Country responded with this second declaratory judgment action. The case was assigned to Judge Donald J. Hassin. Lake Country contended that: (1) the conveyance of Outlot 5 was void because it violated the constraints and restrictions imposed upon the Village by acceptance of the dedication of the lot in accordance with Wis. Stat. § 236.29; (2) the conveyance was void because it had not been approved by the Village of Hartland Park Board; (3) the conveyance violated the terms, conditions and restrictions imposed by the impact fees ordinance and the enabling statute, Wis. Stat. § 66.0617; and (4) the issuance of a conditional use permit authorized under the Village zoning code was prohibited until TID No. 2 has been terminated pursuant to Wis. Stat. § 66.1105(4)(gm).

¶ 10. On September 12, 2001, the Village filed a motion for summary judgment challenging Lake Country's standing to bring a declaratory judgment action and, alternatively, asserting the legality of the agreement to convey Outlot 5 to the YMCA. Lake Country responded with its own motion for summary judgment. Following a hearing, Judge Hassin granted the Village's motion, ruling that Lake Country did not have standing to bring the action. The judge stated, "[AJbsent a specific grant of authority to challenge the zoning ordinance [,] . . . real estate owners cannot maintain a suit against the municipality unless there is some claim for individual pecuniary injury or pecuniary loss."

¶. 11. Lake Country appeals.

DISCUSSION

¶ 12. When reviewing a grant of summary judgment, we apply de novo the standards set forth in Wis. Stat. § 802.08. Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). Pursuant to § 802.08(2), summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

¶ 13. The dispositive issue in this case is Lake Country's standing to bring this declaratory judgment against the Village. Whether a party has standing to seek declaratory relief presents a question of law we review de novo. Town of Eagle v. Christensen, 191 Wis. 2d 301, 315, 529 N.W.2d 245 (Ct. App. 1995). We note that despite our de novo standard of review, we value a trial court's ruling on such a question. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).

¶ 14. Lake Country rests its standing claim squarely on its status as a property owner and taxpayer in the Village. It does not claim any pecuniary loss or other form of damage or injury. The Village responds that mere status as a taxpayer or property owner does not confer standing. Instead, the Village contends that Lake Country must demonstrate a pecuniary loss or other cognizable damage or injury in order to have standing.

¶ 15. In order to maintain a declaratory judgment action under Wis. Stat. § 806.04, a justiciable controversy must exist. See Loy v. Bunderson, 107 Wis. 2d 400, 409-410, 320 N.W.2d 175 (1982). A controversy is justiciable when the following factors are present:

(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy — that is to say, a legally protectible interest.
(4) The issue involved in the controversy must be ripe for judicial determination.

Putnam v. Time Warner Cable, 2002 WI 108, ¶ 41, 255 Wis. 2d 457, 649 N.W.2d 626. It is the third element of justiciability — often expressed in terms of standing— that is at issue in this case. See City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 228, 332 N.W.2d 782 (1983). In order to have standing to bring an action for declaratory judgment, a party must have a personal stake in the outcome and must be directly affected by the issues in controversy. Village of Slinger v. City of Hartford, 2002 WI App 187, ¶ 9, 256 Wis. 2d 859, 650 N.W.2d 81.

¶ 16. As noted, Lake Country contends that its status as a village taxpayer and property owner confers standing to prosecute this action. It argues that its rights, as well as those of other residents and taxpayers of the Village, are directly affected by the enactment of the zoning ordinances at issue and the creation and operation of TID No. 2. In support, Lake Country relies on Town of Eagle and Wis. Stat. § 806.04, the uniform declaratory judgments act.

¶ 17 Wisconsin Stat. § 806.04(2), provides in relevant part:

Any person... whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

Lake Country contends, consistent with § 806.04(2), that its rights are affected by the Village's amendment to the zoning ordinance and the creation of TID No. 2. We disagree. In Village ofSlinger, 2002 WI App 187, the court of appeals held that in order to have standing to bring a declaratory judgment action, a party must have a personal stake in the outcome and be directly affected by the issue in controversy. Id. at ¶ 9. This is measured by whether the claimant has sustained, or will sustain, some pecuniary loss or otherwise will sustain a substantial injury to his or her interests. Id. at ¶ 12. Here, Lake Country has failed to bring forth any facts demonstrating any pecuniary loss or the risk of any substantial injury to its interests.

¶ 18. Lake Country relies on Town of Eagle for the proposition that Wis. Stat. § 806.04(2) should be construed liberally so as to afford relief from an uncertain infringement on a party's rights. See Town of Eagle, 191 Wis. 2d at 315, 316. We fully accept this principle and apply it in this case. However, Lake Country still fails under this favorable test to illustrate how the Village's actions infringe upon its rights.

¶ 19. In Town of Eagle, the Town and certain individual litigants sought a judicial declaration that the property assessment method utilized by the Town of Palmyra and the Wisconsin Department of Revenue was unconstitutional because it resulted in an inequitable tax burden when property values were equalized. See id. at 309. The respondents argued that the Town of Eagle did not have standing to bring the action. The court of appeals disagreed, stating that the Town had standing "because inequitably equalized values affect [the Town's] allocation of state aid and its ability to borrow." Id. at 315. This demonstrated that the Town of Eagle was at risk for pecuniary loss, giving the Town a personal stake in the outcome. See Village of Slinger, 2002 WI App 187 at ¶ 12. Here, however, Lake Country fails to allege any facts even remotely suggesting that it is adversely affected, financially or otherwise, by the Village's actions. Rather than supporting Lake Country's argument, Town of Eagle supports the Village's argument.

¶ 20. Finally, Lake Country cites to Weber v. Town of Lincoln, 159 Wis. 2d 144, 148, 463 N.W.2d 869 (Ct. App. 1990), in support of its contention that declaratory judgment actions are frequently used to challenge the validity of land use regulations. We agree that Weber makes this statement. However, Weber does not stand for the further proposition that a party's mere status as a taxpayer or property owner is sufficient to confer standing in all instances.

¶ 21. In Weber, certain residents of the Town of Lincoln brought a declaratory judgment action against the Town challenging the town board's repeal of a town zoning ordinance. Id. at 146. The trial court ruled that the plaintiffs did not have standing to bring the action. Id. The court of appeals reversed, stating, "The Declaratory Judgments Act has been frequently used by municipal residents to test the validity of municipal legislation." Id. at 148.

¶ 22. This case is markedly different from Weber. Here, the Village has rezoned a single parcel of land to allow for certain conditional uses and has then conveyed the parcel to a private party for use consistent with one of those uses. That is a far cry from Weber where the Town's repeal of a zoning ordinance eliminated the universal protections provided by the ordinance to all Town residents. In fact, the Weber court observed that the lack of a zoning ordinance would "affectQ all town residents." Id. at 149. The Village's action in this case carries no such dimension. Indeed, the cases cited by Weber in discussing the use of declaratory judgments to challenge land use regulations confirm our reading of Weber. See Ramme v. City of Madison, 37 Wis. 2d 102, 112, 154 N.W.2d 296 (1967) (granting standing because "the tax [at issue in that appeal] is a direct tax to him for which he may be sued"); Boerschinger v. Elkay Enters., Inc., 32 Wis. 2d 168, 170-71, 145 N.W.2d 108 (1966) (property owners challenged the Town's rezoning of adjacent property to permit meat packing plant, alleging damages including depreciation of property).

¶ 23. Unlike the residents in Weber, Lake Country does not claim that the Village's actions affect any property owned by Lake Country. Nor do Lake Country's claims demonstrate any risk of pecuniary loss or substantial injury to Lake Country. As such, Lake Country has no personal stake in the outcome of this action; nor do the issues in controversy directly affect Lake Country. See Village of Slinger, 2002 WI App 187 at ¶ 9. Instead, Lake Country is simply registering its disagreement with legislative decisions of the Village. Such disagreement is insufficient to confer standing. See id. at ¶ 10.

CONCLUSION

¶ 24. We uphold the trial court's ruling that Lake Country lacked standing to prosecute its declaratory judgment action. We affirm the judgment dismissing Lake Country's action.

By the Court. — Judgment affirmed.

       The parties refer to this parcel of land interchangeably as "Outlot 5" and "Lot 3." In the interest of clarity, we will refer to it only as "Outlot 5."

       Pursuant to § 18.13 of the Village Code of Ordinances, "impact fees" are defined as "cash contributions, contributions of land or interests in land or any other items of value that are imposed on a Developer by the Village." Impact fees are imposed to reimburse the Village fof "legal, engineering and design costs which relate directly to the public improvement" and include fees for "library facilities, park and recreation facilities, water, sanitary sewer, public works facilities, and fire facilities."

       The parties dispute whether Outlot 5 was "dedicated" or "transferred" by warranty deed. However, we need not resolve this issue based on our conclusion that Lake Country lacks standing to challenge the conveyance of Outlot 5 — whether by dedication or transfer. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if decision on one point disposes of an appeal, we will not decide other issues raised).

       All statutory references are to the 1999-2000 version.

       Alternatively, Judge Hassin also addressed the merits of Lake Country's action against the Village. The judge rejected Lake Country's arguments that: (1) the land was "dedicated" and not transferred; and (2) the conditional use permit granted to the YMCA by the Village violated Wis. Stat. § 66.1105(4)(gm).

       We note that Lake Country makes reference on appeal to Judge Foster's rejection of the Village's challenge to Lake Country's standing in its initial trial court action. However, Lake Country does not further develop this argument and we will not address it further except to observe that Judge Hassin noted Judge Foster's decision and the existence of facts in that initial case which supported a claim of pecuniary loss to the taxpayers, Lake Country included.

       We note that Lake Country additionally relies on City of Waukesha v. Town Bd. of Waukesha, 198 Wis. 2d 592, 543 N.W.2d 515 (Ct. App. 1995), in arguing that if both the City of Waukesha and County of Waukesha had standing to challenge the Town's grant of conditional use permits, then taxpayers and property owners should have standing to do so as well. However, Lake Country's reliance on City of Waukesha is misplaced. Although the issue of standing was raised in that case, it was deemed moot and therefore not addressed by the court. Id. at 597 n.2. Further, the case suggests that the City claimed pecuniary losses in relation to the conditional use permit. Id. at 607-08 (the trial court noted in its findings of fact the potential for the City to annex the property in question and the subsequent loss of reimbursement).


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    Randy A. J., Petitioner-Respondent, v. Norma I. J., Respondent-Co-Appellant, Brendan B., Intervening-Respondent-Appellant.

    Court of Appeals

      No. 02-0469.

      Submitted on briefs September 26,2002. —
    Decided November 13, 2002.

    2002 WI App 307
    (Also reported in 655 N.W.2d 195.)

      On behalf of the intervening-respondent-appellant, the cause was submitted on the briefs of Jennifer Weber of Zick & Weber Law Offices, LLP, of Johnson Creek.
    On behalf of the respondent-co-appellant, the cause was submitted on the briefs of Robert J. Welcenbach of Welcenbach & Widmann of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Virginia M. Stutter of Carr, Kulkoski & Stutter, S.C., of New Berlin.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review granted 3-13-03.

   BROWN, J.

¶ 1. This divorce case presents an unusual factual scenario. Randy A. J. is willing to continue supporting and providing care for a child that is not biologically his own. He seeks to maintain the parent-child relationship he established with a child born during his marriage to the natural mother, Norma I. J., despite the fact that genetic tests have established to a 99.99% degree of certainty that Brendan B. is the child's father. Norma and Brendan argue that because the genetic tests showed that Brendan is the biological father of the child, the trial court had no authority to determine that establishing Randy as the legal father and awarding him custody were in the best interests of the child. We conclude that Randy is the equitable parent of the minor child and affirm the trial court's decision that otherwise awarded Randy custody of the child.

¶ 2. The following facts are relevant to this appeal. In 1997, during her marriage to Randy, Norma began a relationship with Brendan, a resident of Illinois. In January 1998, while she was still married to Randy, Norma gave birth to a child. In May 1999, Norma was sentenced to eight years in prison. For the fifteen months prior to Norma's incarceration, Norma and the child would visit Brendan on a weekly basis. Since Norma's incarceration, the child has resided with Randy. In August 1999, Brendan commenced a paternity action regarding the child in Illinois; the action was later dismissed for lack of subject matter jurisdiction.

¶ 3. In September and October 1999, Randy filed a petition for divorce and obtained a temporary order prohibiting Brendan from having any contact with the child. Brendan was served with notice of the temporary order hearing, but did not appear. In December, Norma filed a counterclaim in the divorce action alleging that Brendan was the biological father of the child.

¶ 4. In August 2000, Randy filed a motion to dismiss Norma's counterclaim with respect to the paternity of the child, seeking to preclude blood tests from being taken before a best interests hearing took place. Shortly thereafter, however, Randy inexplicably withdrew his opposition to the genetic testing. Norma, Brendan and the child submitted to genetic testing and the test results established to a 99.99% degree of certainty that Brendan was the biological father of the child.

¶ 5. In February 2001, Brendan filed a motion to intervene in the divorce action. Brendan sought to be adjudicated the natural father and requested legal custody and primary physical placement of the child. The parties stipulated to his intervention. The court held four days of hearings concerning whether it was in the best interests of the child for Brendan to be named the father. Following the hearings, Randy filed a motion to dismiss Brendan's motion to intervene.

¶ 6. The trial court concluded that while Norma was equitably estopped from raising the issue of the child's paternity, estoppel did not bar Brendan from raising the issue of the child's paternity. The court then determined that although genetic tests showed Brendan to be the child's biological father, it had the ability pursuant to Wis. Stat. §§ 767.463 and 767.458(lm) (1999-2000), the statutes governing the trial court's authority to dismiss paternity actions before a genetic test is taken, to hold a hearing to determine whether it was in the best interests of the child for the court to establish Brendan as the father.

¶ 7. Based upon the four days of testimony, the court concluded that it was not in the best interests of the child for Brendan to be named .the father. The court then dismissed Brendan's motion to intervene and Norma's counterclaim as it related to the paternity adjudication and declared that Randy was the legal father and awarded him custody. Brendan and Norma appeal this decision.

¶ 8. On appeal, Brendan and Norma assert that once the parties submitted to genetic testing and the tests showed Brendan to be the biological father, the trial court erred in concluding that Wis. Stat. §§ 767.463 and 767.458(lm) granted it the authority to conduct a best interests of the child hearing and dismiss the paternity actions. Brendan and Norma further contend that once the genetic tests demonstrated that Brendan was the biological father of the minor child born during Randy and Norma's marriage, he overcame the marital presumption contained in Wis. Stat. § 891.41. These two issues present questions of statutory interpretation. The proper construction of statutes is a question of law that we review de novo. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997). 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.E, 223 Wis. 2d 768, 771-72, 590 N.W.2d 21 (Ct. App. 1998).

¶ 9. The language of both Wis. Stat. §§ 767.463 and 767.458(lm) is plain and unambiguous. Section 767.458(lm) provides:

In an action to establish the paternity of a child who was born to a woman while she was married, where a man other than the woman's husband alleges that he, not the husband, is the child's father, a party may allege that a judicial determination that a man other than the husband is the father is not in the best interest of the child. If the court or court commissioner under s. 757.69(3)(g) determines that a judicial determination of whether a man other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.

The statute is specific. It is clearly intended to grant the court the authority to prevent the parties from taking genetic tests where a child would be harmed by a determination that someone other than the husband is his or her father. If the court determines that it is not in the marital child's best interests to have a judicial determination of paternity, genetic tests may not be performed under court order and the court is authorized to dismiss the paternity action. But once the parties have submitted to genetic tests, § 767.458(lm) is inapplicable and the trial court cannot dismiss the action on these grounds.

¶ 10. Similarly, Wis. Stat. § 767.463 is relevant in a paternity action only if the parties have not submitted to genetic tests. Section 767.463 reads as follows:

Except as provided in s. 767.458(lm), at any time in an action to establish the paternity of a child, upon the motion of a party or guardian ad litem, the court or court commissioner under s. 757.69(3)(g) may, with respect to a man, refuse to order genetic tests, if genetic tests have not yet been taken, and dismiss the action if the court or court commissioner determines that a judicial determination of whether the man is the father of the child is not in the best interest of the child. (Emphasis added.)

The statute explicitly permits the court to dismiss an action to establish the paternity of a child based upon the best interests of the child only if genetic tests have not yet been taken. The trial court concluded that it could remove the phrase, "if genetic tests have not yet been taken," without altering the reading of the balance of the statute. Ordinarily, the court must construe a statute so that no part of it is rendered surplusage and if possible give every word effect. Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980). Our conclusion that the court has the authority to dismiss the action on best interests of the child grounds only if genetic tests have not yet been taken is the single construction that gives effect to all of the words in the statute. We therefore hold that a court may dismiss an action to establish the paternity of a child pursuant to § 767.463 only if the court has not yet ordered the parties to submit to genetic testing.

¶ 11. Here, Randy stipulated to genetic testing. Norma, Brendan and the minor child submitted to the genetic tests, which established to a 99.99% degree of certainty that Brendan was the minor child's father. Because the court ordered the genetic tests upon the request of the parties and the parties submitted to the testing, Wis. Stat. §§ 767.458(lm) and 767.463 do not apply to this case and the trial court erred when it concluded that it had the authority to dismiss Brendan's motion to intervene based upon a best interests of the child determination pursuant to § 767.463.

¶ 12. The trial court next concluded that despite the fact that the genetic tests had established Brendan's parentage to a 99.99% degree of certainty, Brendan had not rebutted the marital presumption contained in Wis. Stat. § 891.41(1). Section 891.41(l)(a) provides that a man is presumed to be the natural father of a child if he and the child's natural mother have been married to each other and the child is born during the marriage. This presumption of paternity is rebuttable. J.F. v. R.B. & T.B., 154 Wis. 2d 637, 640, 454 N.W.2d 561 (Ct. App. 1990). The presumption is rebutted by the results of a genetic test establishing by a statistical probability of 99.0% or higher the parentage of a man other than the man presumed to be the father under subsec. (1). Sec. 891.41(2). If genetic tests show that the alleged father is not excluded and the statistical probability of the alleged father's parentage is 99.0% or higher, the alleged father is rebuttably presumed to be the child's parent. Wis. Stat. § 767.48(lm).

¶ 13. Norma gave birth to the child while married to Randy and thus by statute Randy was the child's presumptive father. However, once the genetic tests demonstrated that Brendan was the father to a 99.99% degree of certainty, Brendan had rebutted this marital presumption according to the plain language of the statute and is rebuttably presumed to be the child's father according to Wis. Stat. § 767.48(lm). We, therefore, conclude the trial court erred when it determined that Brendan had not rebutted the presumption of paternity set forth in Wis. Stat. § 891.41(1) with the genetic tests establishing his parentage to the requisite degree of certainty.

¶ 14. Brendan and Norma next seem to argue that because Wis. Stat. § 891.41(2) establishes that he is rebuttably presumed to be the father, we should reverse the decision of the trial court declaring Randy the legal father of the child and granting him custody. Norma also argues that the trial court erred when it estopped her from asserting the child's parentage.

¶ 15. While the trial court may have used the incorrect vehicle in the law, the court clearly felt compelled by the evidence to declare that Randy, not Brendan, should be the child's father. The trial court made unmistakable, but implicit, findings that Brendan should not be entitled to whatever foothold he had gained by reason of the genetic tests. In B.L.J. v. Polk County DSS, 163 Wis. 2d 90, 109, 103-05, 470 N.W.2d 914 (1991), our supreme court was faced with a similar situation where the trial court was wrong on the law, but its factual findings supported the correct result, had the proper legal standard been applied. With B.L.J. as our authority, we do the same here. We will hereafter establish the correct law and, after having so established it, will explain why the trial court's findings support an affirmance under the proper legal standard.

¶ 16. We first reiterate what we have already written — that the marital father is presumed to be the natural father unless rebutted. A genetic test showing another man to be the natural father rebuts that presumption. But that does not end the matter. Under Wis. Stat. § 767.48(lm), the natural father then only gains a rebuttable presumption that he is the child's parent. Thus, it is evident from the law that even if a test shows a man to be the natural father, his legal fatherhood is only presumed. Next, we must consider "how" such a presumption may be overcome. In our view, the presumption may be overcome by evidence that the marital father has so bonded with the child as to be considered the "equitable parent." Therefore, we see the real issue in this case to be whether the evidence supports affirmance on grounds that Randy is the equitable parent, thus overcoming Brendan's rebut-table presumption that he, as the natural parent, is the legal parent. We begin our analysis with a discussion of what the "equitable parent" doctrine is and where it came from.

¶ 17. Wisconsin has recognized the equitable parent doctrine. See J.J. v. R.J., 162 Wis. 2d 420, 426-30, 469 N.W.2d 877 (Ct. App. 1991). The equitable parent doctrine extends the rights and responsibilities of a natural parent to a nonbiological parent seeking custody or visitation. See id.-, see also Atkinson v. Atkinson, 408 N.W.2d 516, 519 (Mich. Ct. App. 1987). Once a court determines that a party is an equitable parent, there is no distinction between the equitable parent and any other parent; each is endowed with the same rights and responsibilities of parenthood. York v. Morofsky, 571 N.W.2d 524, 526 (Mich. Ct. App. 1997). We have permitted a mother in a divorce action to estop a nonbiological father from denying paternity in order to avoid child support obligations. See A.M.N. v. A.J.N., 141 Wis. 2d 99, 105-06, 414 N.W.2d 68 (Ct. App. 1987). We have also held that for the purposes of establishing a right to a relationship with the child born to his wife but fathered by another man, the husband may utilize the status of "equitable parent" to assert an equitable estoppel defense against the child's mother instituting paternity proceedings against him. J.J., 162 Wis. 2d at 429-30. Here, we face the unusual situation where the mother is in prison, the child does not recognize the biological father as being her parent, and the nonbiological father not only wants to continue the parent-child relationship, but also wishes to support the child emotionally and financially by maintaining custody of the child.

¶ 18. The Michigan Court of Appeals faced a somewhat similar situation in Atkinson. In Atkinson, the child was conceived and born during the marriage of the parties in the divorce action and the father and child had maintained a close and affectionate father-child relationship. Atkinson, 408 N.W.2d at 520. Blood tests, however, excluded the husband as the child's biological father. Id. at 517. The father desired to have the relationship continue and to have the rights and responsibilities accorded to fatherhood. Id. at 519. The mother acknowledged that the husband related to the child as a father and that she had waited until answering a question in interrogatories before asserting that the husband was not the biological father. Id. at 520.

¶ 19. Based upon these facts, the court concluded that the husband was entitled to be treated as a natural father under the equitable parent doctrine. Id. Thus, the custody dispute between the husband and the wife would be settled as if it were between two natural parents, based upon the child's best interests. The court observed that it was established that a man who is not the biological father of a child could be considered a parent against his will and consequently burdened with the responsibility for child support, and that in such a case the man may also receive the right of custody or visitation. Id. at 519-20. The court concluded that it was a logical extension of this view to recognize that under certain circumstances a person who is not the biological father of a child may be considered a parent when he desires such recognition and is willing to support the child in addition to wanting the reciprocal rights of custody or visitation afforded to a parent. Id. at 520. The court held the equitable parent doctrine would permit a husband who is not the biological father of a child born during a marriage to be considered the natural parent of the child where: (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce; (2) the husband desires to have the rights afforded to a parent; and (3) the husband is willing to take on the responsibility of paying child support. Id. at 519.

¶ 20. While we acknowledge that the equitable parent doctrine has not been invoked in Wisconsin against a natural parent for the purpose of awarding custody to a nonparent, we have invoked the doctrine set forth in Atkinson against a natural parent for the purpose of awarding visitation to a nonparent in a situation that bears some factual similarity to this case. See J.J., 162 Wis. 2d at 428-30. In J.J., a child was born while the parties to a divorce proceeding were married. Id. at 428. The husband and the child had developed a close parent-child relationship. Id. The mother waited until after the husband filed a motion for custody of the child to move the family court commissioner to order the husband to submit to blood tests. Id. at 423, 429. The blood tests excluded the husband as the father and the family court commissioner terminated visitation between the husband and the minor child. Id. at 423-24. We held that the husband had the status of "equitable parent," and that the mother was equitably estopped from seeking a declaration that the husband was not the child's natural parent for the purposes of the proceedings. Id. at 429-30. We recognized, however, that the "child's interest is separate and distinct from the interest of the mother and husband," and thus upon further inquiry and the recommendation of the guardian ad litem, subsequently determined that granting the husband equitable parent status was in the best interests of the child. Id.

¶ 21. In Atkinson and J.J. the courts used the equitable parent doctrine to support a nonbiological father in his efforts to maintain a parent-child relationship when that was in the child's best interests. In this case, the trial court held several days of hearings concerning the best interests of the child in which all of the parties participated. Again, we acknowledge that in exercising its equitable powers, the trial court did not expressly use the equitable parent doctrine to declare Randy the legal father and otherwise award him custody. However, during the hearings, the trial court made substantial and careful findings of fact regarding the relationship each party had established with the child and the conduct of the parties concerning the child's paternity and we use these findings in our analysis of the equitable parent doctrine as applied to this case. Whether the facts as found permit the application of equitable estoppel is a question of law that we review independently of the trial court's determination. J.J., 162 Wis. 2d at 429.

¶ 22. During the pregnancy and up until Norma's incarceration, Randy, Norma and the child lived together. After Norma's incarceration, Randy became the sole custodian of the minor child and has continued to assume responsibility for her. The child considers Randy to be her only father and, up until the divorce proceedings, Randy believed her to be his biological daughter. The trial court found that "there clearly is a — what would otherwise be viewed as a normal parent-child relationship and bond between [Randy] and [the child], and, in fact, he has been her only parent from the standpoint of regular and daily contact and custodial care since May of 1999." The trial court also determined that Randy had taken significant responsibility for raising the child and had requested that he be able to continue to assume that responsibility and maintain the relationship he established with the child.

¶ 23. Prior to the divorce proceeding, and with Norma's cooperation, Randy believed he held the status of a natural parent and assumed the rights and responsibilities of fatherhood. Norma and Brendan never took any steps to change Randy's belief despite the fact that they had suspected Brendan was the father of the child. The trial court found it was in both Norma's and Brendan's best interests not to take any action concerning the child's paternity. Norma was involved in significant criminal legal difficulties at the time and needed Randy's financial backing. During legal proceedings, Randy supported Norma and funded the costs of her legal representation, using all of the family's cash and equity in their home. It was not until Norma was incarcerated and Randy filed for divorce that Norma raised the paternity issue.

¶ 24. The trial court also found that Brendan had the opportunity and ability to assume parental responsibility for the child and chose not to do so. The court determined that while Brendan saw the child on a weekly basis prior to Norma's incarceration, the relationship established between the two was not that of father and daughter. The relationship arose simply upon the event of Norma's relationship with Brendan. The trial court further determined that Brendan, having to purchase such things as diapers, formula, and some clothing for the child during her extended weekend stays prior to Norma's incarceration, in no way constituted support of the child either emotionally or financially. Finally, the court noted that Brendan did not raise the issue of his paternity in this state until the child was well over three years old. We further observe that although by virtue, of the temporary order Brendan was later prohibited from establishing contact with the child, he could have offered to pay for medical expenses or otherwise established a financial relationship with the child, but once again chose not to do so.

¶ 25. The trial court also relied upon the testimony and recommendations of the psychologist, Dr. Cathy J. Crandall, who evaluated the child, Randy, Norma and Brendan. Dr. Crandall determined that the child related to Randy as her father and it would be harmful to the child to remove her from Randy's care. She recommended that Randy remain the father of the child. We note that Dr. Crandall further recommended that Randy and Norma have joint custody of the child, but that she continue to be primarily placed with Randy at least until Norma is released from prison. Finally, the court also gave due consideration to the substance abuse problems of the parties.

¶ 26. Prior to the divorce proceedings, Randy believed he was the child's natural parent. Indeed, he is the only father the child has ever known. Randy has established that he is willing to continue assuming responsibility for support obligations and further desires the rights accorded to parenthood. Brendan and Norma chose not to take any action regarding Brendan's paternity until long after they suspected he was the father of the child, and as a result, Randy formed a bond with the child and Brendan has no relationship with the child. We therefore conclude that Randy is the child's equitable father.

¶ 27. We have just determined that Brendan may not assert his parentage based on the facts as found by the trial court and the applicable law. The question remaining is whether Norma still may assert the child's parentage. The trial court equitably estopped Norma from raising the issue of the child's paternity. As the trial court noted, and as we have just stated, Norma chose not to take any action regarding Brendan's paternity until well after she and Brendan suspected that Randy was not the father of the child. Norma's actions allowed Randy and the child to form a close bond. We affirm the trial court's determination that it was in the child's best interests that the court estop Norma from asserting the child's parentage. We hold that Randy is the legal father and affirm the trial court in that regard. We also hold that Randy is entitled to custody and affirm the trial court's determination on that issue.

By the Court. — Order affirmed.

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

       Although the trial court did not explicitly consider the correct law, we may affirm an order supported by the record even though the trial court may have reached the same result for different reasons. See State v. Gaines, 197 Wis. 2d 102, 109. n.5, 539 N.W.2d 723 (Ct. App. 1995).


author: NETTESHEIM, PJ.

text:
    Gerald F. Weiland and Carol Ann Weiland, Plaintiffs-Respondents, v. Daniel G. Paulin and Joan E. Paulin, Defendants-Appellants.

    Court of Appeals

      No. 02-0826.

      Submitted on briefs October 10, 2002. —
    Decided November 13, 2002.

    2002 WI App 311
    (Also reported in 655 N.W.2d 204.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Joseph J. Kroening of Stevens & Kroening, LLC of Menomonee Falls.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gerald H. Antoine of Huirás, Farrell & Antoine, S.C. of Port Washington.
    Before Nettesheim, PJ., Brown and Anderson, JJ. .

       Petition to review granted 4-24-03.

   NETTESHEIM, PJ.

¶ 1. Daniel G. and Joan E. Paulin appeal from a summary judgment in favor of Gerald F. and Carol Ann Weiland. The Paulins purchased a lot in a subdivision developed by the Weilands. The Weilands commenced this action against the Pau-lins for erecting a manufactured structure on their lot in violation of the Declaration of Restrictions governing the subdivision. The trial court granted summary judgment in favor of the Weilands, permanently enjoining the Paulins from placing a manufactured structure on their lot and ordering them to remove or raze the structure already existing.

¶ 2. The summary judgment record demonstrates that there is no genuine issue of material fact on the question of whether the Paulins violated the deed restrictions placed on the property they purchased from the Weilands. We therefore affirm the trial court's grant of summary judgment to the Weilands. On our own motion, we further conclude that this appeal is frivolous. We remand to the trial court for a hearing to determine the Weilands' reasonable fees, costs and attorney fees in responding to this appeal. All costs assessed shall be paid solely by the Paulins' appellate counsel.

FACTS

¶ 3. The Weilands are the developers of Meadow-view Estates, a subdivision located in the village of Fredonia. The Weilands also reside in Meadowview Estates and are the sole members of the Architectural Control Committee. In conjunction with their development of "Addition No. 2" to the Meadowview Estates, the Weilands recorded a "Declaration of Restrictions for Meadowview Estates Addition No. 2" in the office of the Register of Deeds for Ozaukee County. These deed restrictions provided that no building or structure could be placed on a lot until complete plans and specifications had been submitted to and approved by the Architectural Control Committee. In addition, the restrictions provided that no manufactured home or structure shall be placed upon any lot.

¶ 4. In May 1999, the Paulins purchased Lot 13 in Meadowview Estates Addition No. 2. The Weilands listing real estate agent, James L. Lippe, prepared the Offer to Purchase for the Paulins. Prior to preparing the Offer to Purchase, Lippe showed and explained to the Paulins the Declaration of Restrictions, including provisions requiring the submission of building plans and specifications to the Architectural Control Committee and the need to obtain written approval from the Committee prior to construction. Lippe also explained a provision in the Declaration that prohibited the construction or placement of manufactured structures or homes on any lot within the subdivision.

¶ 5. Prior to closing the sale of Lot 13, Lippe provided the Paulins with a title insurance commitment, which noted the existence of and contained a complete copy of the Declaration of Restrictions. The Paulins closed on Lot 13 on May 28,1999. At the closing they submitted to the Weilands, and the Weilands approved, plans and specifications for a two-story "stick-built" home. The Paulins never built that home.

¶ 6. On June 22, 1999, the Paulins entered into a Vacant Land Listing Contract with Lippe to sell Lot 13. The Listing Contract specifically referred to the Declaration of Restrictions. The Paulins did not receive any offers on Lot 13. Between October and December 2000, the Paulins constructed a basement foundation on Lot 13, and on January 31, 2001, they placed a manufactured dwelling on the foundation. Prior to this, the Paulins did not submit plans and specifications to the Weilands for approval of the manufactured dwelling. When Gerald Weiland became aware of the structure, he approached Daniel Paulin who provided him with a drawing and floor plan of the manufactured dwelling.

¶ 7. On February 5, 2001, the Weilands directed their attorney to send a letter to the Paulins advising them that the dwelling was in violation of the Declaration of Restrictions and directing them to remove it. After further communications through their attorneys, the Weilands filed this action on April 5, 2001, to enforce the Declaration of Restrictions. The Weilands requested an injunction barring the Paulins from erecting or continuing to erect a structure on Lot 13 without prior written approval from the Architectural Control Committee and for an order compelling the removal of the manufactured structure on Lot 13.

¶ 8. On April 24, 2001, the trial court granted the Weilands' request for a temporary injunction. The Weilands thereafter filed a motion for summary judgment based on the Paulins' violation of the Declaration of Restrictions. The trial court granted judgment in favor of the Weilands on January 24, 2002. The court determined that the restrictive covenants contained in the Declaration of Restrictions were unambiguous and reasonable and that the Paulins "proceeded at their peril when they failed to get architectural approval as required in the deed restrictions." Based on this determination, the trial court permanently enjoined the Paulins from erecting a structure or continuing to erect a structure on Lot 13 without first receiving approval from the Architectural Control Committee. The court further ordered the Paulins to remove or raze the manufactured structure presently located on Lot 13.

¶ 9. The Paulins appeal.

DISCUSSION

Summary Judgment

¶ 10. When reviewing a grant of summary judgment, we apply de novo the standards set forth in Wis. Stat. § 802.08 (1999-2000). Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). Pursuant to § 802.08(2), summary judgment must be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

¶ 11. We first address the Paulins1 claim that they were unaware of the deed restriction requiring them to obtain prior approval of their manufactured dwelling. However, they provide no citation to the record to support this or any other fact. Such failure is a clear violation of Wis. Stat. Rule 809.19(l)(d) and (3) of the rules of appellate procedure, which requires the party to set out facts "relevant to the issues presented for review, with appropriate references to the record." An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Moreover, the Paulins' claim lack's credibility. They obviously knew of the "prior approval" provision because they had previously complied with it when they obtained approval of their proposed "stick-built" home.

¶ 12. Next, the Paulins contend that the trial court erred in determining that the restrictions contained in the Declaration of Restrictions applied to their manufactured dwelling. The Paulins' argument is premised upon the distinction between a "manufactured home" and a "manufactured dwelling." However, the Paulins misrepresent the trial court's summary-judgment ruling. The trial court did not rule that the Paulins' structure violated the deed restrictions against manufactured homes or structures. Instead, the trial court determined that the Paulins violated the deed restriction requiring Architectural Control Committee approval of proposed building plans and specifications before any construction. In fact, the trial court expressly declined to address the distinction between manufactured homes and dwellings, deeming it irrelevant in light of the Paulins' failure to comply with the deed restriction requiring prior submission and approval of any proposed building plans and specifications. We therefore limit our consideration of this case to the grounds upon which the trial court actually awarded summary judgment to the Weilands.

¶ 13. We begin by observing that the interpretation of a restrictive covenant is a question of law that we review independently of the trial court. 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. Id. The language in a restrictive covenant is ambiguous if it is susceptible to more than one reasonable interpretation. Id. at 165-66. However, if the intent of a restrictive covenant can be clearly ascertained from the covenant itself, the restrictions will be enforced. Id. at 166.

¶ 14. The restriction at issue provides in relevant part:

11. PLAN APPROVAL. In order to maintain harmony and appearance, and to protect the owners of all lots in this subdivision, and whether or not specifically stated in any conveyance of a lot, it is hereby declared, and the owner or occupant of each and every lot by acceptance of title or by taking possession covenants and agrees, that no building, wall, or other structure shall be placed upon any lot in this subdivision unless and until complete plans and specifications therefore, together with the intended grade, a plot plan and a sketch or view thereof, have been submitted to and approved in writing by a member of the Architectural Control Committee .... The Architectural Control Committee may refuse to approve any plans or specifications on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Committee shall seem sufficient. No manufactured home or structure shall be constructed or placed upon any lot in this subdivision. (Emphasis added.)

¶ 15. As noted, the trial court granted summary judgment to the Weilands because the Paulins failed to submit the plans and specifications for the manufactured dwelling to the Architectural Control Committee for approval. The ruling is unassailable because the Paulins themselves admitted that they did not comply with this requirement of the deed restrictions.

¶ 16. That determined, we next turn to the reasonableness of the deed restrictions. The Paulins represent that the trial court "failed to consider whether the restriction was reasonable under the facts and circumstances" of this case. Here again the Paulins misrepresent the trial court's ruling. The trial court specifically addressed the reasonableness of the deed restriction, stating:

It is the finding of this Court that the covenant that ban structures such as those erected by the [Paulins] are neither arbitrary nor ambiguous and clearly state the requirements that must be fulfilled before a home can be constructed on the subject premises. When considering all the pleadings, papers and filings in this matter, in the light most favorable to the [Paulins], it is this Court's opinion that from all the facts presented, the restrictions that are the subject of this action are reasonable and were enacted for a legitimate purpose.

¶ 17. In determining whether a deed restriction is reasonable, a court must inquire (1) whether it is reasonable under all the facts and circumstance of the transaction in light of the situation, business, and objects of the parties; and (2) whether it is for a just and honest purpose, for the protection of the legitimate interest of the party in whose favor it is imposed. Dodge v. Carauna, 127 Wis. 2d 62, 65, 377 N.W.2d 208 (Ct. App. 1985).

¶ 18. The Declaration of Restrictions states its purpose is to "maintain harmony and appearance, and to protect the owners of all lots in this subdivision." The history of the subdivision demonstrates that the restrictions have been applied uniformly and have been relied upon by other homeowners in the subdivision. In fact, the Paulins do not challenge the reasonableness of the restrictions except as the Weilands seek to apply them to the manufactured dwelling after the fact. They contend that the court failed to consider whether it was reasonable to enforce the restrictions given the facts and circumstances of this case, "i.e., now that the home is built, does it degrade the appearance of the neighborhood or reduce the value of surrounding homes." However, by its very terms, the restriction is to be applied prior to a home being constructed. The inquiry set forth in Dodge is not whether it is reasonable to enforce the restriction after it has been violated but whether the restriction is reasonable at the time it is intended to be applied. See id. at 65.

¶ 19. We conclude that the restriction, imposed by the Weilands in an effort to maintain the appearance and continuity of the subdivision, is reasonable and we uphold the trial court's ruling to the same effect.

¶ 20. Moreover, the reasonableness requirement for a deed restriction is grounded in principles of equity. McKinnon v. Benedict, 38 Wis. 2d 607, 619, 157 N.W.2d 665 (1968). A fundamental principle of equity is that equitable relief will be denied to a party when "the things from which [a party] seeks relief are the fruit of its own wrongful or unlawful course of conduct." Lake Bluff Housing Partners v. City of S. Milwaukee, 2001 WI App 150, ¶ 13, 246 Wis. 2d 785, 632 N.W.2d 485 (citation omitted), review denied, 2002 WI 23, 250 Wis. 2d 556, 643 N.W.2d 93 (Wis. Jan. 31, 2002) (No. 00-1958); see also Zinda, 191 Wis. 2d at 174 ("One of the fundamental tenets of equity is that a person seeking equitable relief must come to the court with clean hands."). Here, the Paulins have the temerity to demand relief from the very deed restriction that they have admittedly and patently violated. Had they complied with the restrictions, the Paulins would not be in their self-created dilemma of having to remove the illegal structure from their lot.

Frivolousness

¶ 21. On our own motion, we declare the Paulins' appeal frivolous under Wis. Stat. Rule 809.25(3)(c)2. This Rule provides that an appeal is frivolous when "[t]he party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." When an appellant's attorney should have known that the assertion of trial court error was without any reasonable basis in law or equity, the appellate court may conclude the appeal is frivolous without the necessity of a remand for fact-finding. Vierck v. Richardson, 119 Wis. 2d 394, 399, 351 N.W.2d 169 (Ct. App. 1984).

¶ 22. We declare the Paulins' appeal frivolous based on a number of transgressions, all of which we lay at the feet of the Paulins' counsel. First, counsel failed to fulfill his professional duty to provide this court with all of the facts relevant to the appeal with appropriate references to the record. See Wis. Stat. Rule 809.19(l)(d).

¶ 23. Second, counsel's presentation of the facts regarding the Paulins' claimed ignorance of the deed restriction borders on outright deceit because the record demonstrates that the Paulins had previously complied with the restriction.

¶ 24. Third, and most disturbingly, counsel has misrepresented the trial court's rulings. Based on the appellant's brief, we were led to believe that the trial court had ruled that the Paulins' structure violated the prohibition against manufactured homes or structures and that the court had not addressed the reasonableness of the deed restrictions. Only after reading the Weilands' respondent's brief and the trial court's decision did we learn that the court had actually based its decision on the Paulins' failure to submit their plans and specifications for the manufactured home to the Architectural Control Committee for approval and that the court had also addressed the reasonableness of the deed restrictions.

¶ 25. A forthright and professional lawyer will reveal and address on appeal the full extent of the relevant facts and the trial court's reasoning. As a reviewing court, we are entitled to be apprised of all grounds for a trial court's ruling, not just those grounds that appellate counsel chooses, or, more alarmingly, fabricates.

¶ 26. The Rules of Professional Conduct at SCR 20:3.3(a), entitled "Candor toward the tribunal," state that "[a] lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal." In addition, the "Standards of Courtesy and Decorum for the Courts of Wisconsin" at SCR 62.02(3) provide that "Lawyers shall do all of the following: ... (e) Abstain from knowingly deceiving or misleading another lawyer or the court." Here, counsel had an obligation to present us with an accurate and truthful account of the trial court proceedings. He failed to discharge this duty. In Geneva National Community Ass'n., Inc. v. Friedman, 228 Wis. 2d 572, 598 N.W.2d 600 (Ct. App. 1999), we relied upon violations of both the Rules of Professional Conduct and the Standards of Courtesy and Decorum for the Courts of Wisconsin in upholding sanctions imposed by the trial court. Id. at 583-86. In Aspen Services, Inc. v. IT Corp., 220 Wis. 2d 491, 497-98, 583 N.W.2d 849 (Ct. App. 1998), we also relied, in part, on the courtesy and decorum standards in upholding a sanction-based reduction in attorney fees. We rely on the same authorities here in declaring the Paulins1 appeal frivolous.

¶ 27. Fourth, we are troubled by counsel's challenge to the reasonableness of the deed restrictions. As we have noted, such a challenge is grounded in equity. McKinnon, 38 Wis. 2d at 619. In the face of the Paulins' clear and admitted violation of the deed restrictions, and in the face of the fundamental principle that one who seeks equity must do equity, counsel's argument that the Paulins were nonetheless entitled to equitable relief is a nonstarter. A minimally competent and informed lawyer would not make such a worthless argument.

¶ 28. Our supreme court has said that it will "support sanctions directed personally at those attorneys whose slipshod practices abuse the system, create unnecessary work, and delay speedy justice for others." State v. Smythe, 225 Wis. 2d 456, 472, 592 N.W.2d 628 (1999). Our time on this case would have been better directed to the numerous meritorious appeals pending in this court. Similarly, the Weilands and their attorney should also have been spared the time, expense and aggravation resulting from this appeal.

¶ 29. This case is so far beyond the pale that we, on our own motion, declare the appeal frivolous. We conclude that the Weilands are entitled to the costs, fees and reasonable attorney fees incurred as a result of this appeal pursuant to Wis. Stat. Rule 809.25(3)(a), and that those fees and costs shall be assessed solely against the Paulins1 appellate counsel pursuant to Rule 809.25(3)(b).

CONCLUSION

¶ 30. We conclude that there is no genuine issue of material fact and that the Weilands are entitled to judgment as a matter of law. We declare the Paulins' appeal frivolous and we remand to the trial court for a hearing and determination as to the reasonable costs, fees and attorney fees incurred by the Weilands in defending against the Paulins1 appeal. Such costs and fees shall be assessed solely against the Paulins' appellate counsel.

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

       The parties use the term "stick-built" to refer to a home constructed on site.

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

       In making this argument, the Paulins seem to assume that their claimed ignorance of the deed restrictions would provide a defense. We seriously question that assumption given that the deed restrictions were properly recorded and the Paulins complied with the restrictions when they submitted the plans for the "stick-built" dwelling for approval.

       In making this argument, the Paulins rely on the Wisconsin Administrative Code which defines "manufactured home" as a "structure, transportable in one or more sections . .. which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation." Wis. Admin. Code § COMM 27.10(3). Because the Paulins' manufactured dwelling is not built on a permanent chassis, they argue that it is not covered by the deed restrictions. Although this issue is not dispositive, we nevertheless note that we are unpersuaded by the Paulins' argument. While we acknowledge that the administrative code distinguishes between "manufactured homes" and "manufactured dwellings," Wis. Admin. Code § COMM 27.001 (Note), the deed restrictions prohibit any manufactured structure. The home delivered to the Paulins' lot clearly falls under this restriction.

       It is undisputed, as it was before the trial court, that the Paulins contracted to place the manufactured dwelling on Lot 13 prior to obtaining approval from the Architectural Control Committee. At his deposition, Daniel Paulin testified that he did not submit any plans to the Weilands, the sole members of the Architectural Control Committee, for the home that was delivered to Lot 13. He stated that he "overlooked" doing so. He additionally stated that he had no discussions with the Weilands from the time of the closing on Lot 13, when he submitted plans for a "stick-built" home, and the time of the delivery of the manufactured dwelling in January 2001. By proceeding with the delivery and assembly of the manufactured dwelling on Lot 13 without prior approval from the Architectural Control Committee, the Paulins clearly violated the deed restrictions on their property.

       Daniel Weiland stated in his affidavit that the Architectural Control Committee had refused to approve plans for a manufactured home or dwelling on two other occasions. Those lot owners had complied with the restrictions and constructed "stick-built" homes.


author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Louis J. Thornton, Defendant-Appellant.
    Court of Appeals

      Nos. 01-0726-CR, 01-0727-CR.

      Submitted on briefs May 13, 2002. —
    Decided November 14, 2002.

    2002 WI App 294
    (Also reported in 656 N.W.2d 45.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Louis J. Thornton.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lara M. Herman, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Louis Thornton appeals a judgment of conviction for robbery and forgery and an order denying his motion for postconviction relief. He claims he was denied his constitutional right to postconviction/appellate counsel in this, his "matter of right" postconviction proceedings and appeal. We conclude, however, that the record establishes that he knowingly and voluntarily waived his right to postcon-viction counsel. We also conclude that Thornton's second claim of error, that the ineffective assistance of his trial counsel rendered his no contest pleas invalid, is also devoid of merit. Accordingly, we affirm the appealed judgment and order.

BACKGROUND

¶ 2. In the circuit court cases underlying this consolidated appeal, the State charged Thornton with seven felonies, all carrying repeater enhancements. The parties entered into a plea agreement calling for the dismissal of all repeater allegations and all but two unenhanced counts, one each of robbery by use of force and uttering a forged writing. In return for Thornton's no contest pleas to the two offenses, the State joined Thornton's counsel in recommending a four-year prison term and five years of concurrent probation. The trial court accepted Thornton's pleas and imposed the jointly recommended sentence.

¶ 3. Thornton's trial counsel filed a notice of his intent to seek postconviction relief, and the State Public Defender appointed postconviction counsel for him. Counsel, however, after obtaining two extensions of time for filing a postconviction motion or notice of appeal, moved this court to withdraw. Counsel stated in the motion that he had informed Thornton of his conclusion that "there were no meritorious issues to raise on appeal," and told Thornton of "his options." After taking some time to consider his course of action, and after receiving a letter and two form documents from counsel, Thornton signed and returned the following to his attorney:

REQUEST TO PROCEED PRO SE
I, Louis J. Thornton, hereby requests [sic] that my appointed appellate counsel, [name of counsel], seek to withdraw as my attorney in Dane County Cases #99 CF 399 and 99 CF 1436.
I understand that by proceeding as a pro-se (unrepresented) litigant, I will be solely responsible for complying with the rules of appellate procedure and will be solely responsible for the timely filing of briefs and motions. I understand that postconviction motions will have to comply with Rule 809.36(2), Stats, and that my briefs will have to conform to the content, form, and length requirements of Rule 809.19, Stats. I further understand that I cannot expect successor appellate counsel to he appointed, even if I later decide that proceeding pro-se was a mistake.
In making this decision to proceed pro-se, I have decided against the alternative of advising Attorney [name] to file a no-merit report. I realize that if Attorney [name] filed a no-merit report pursuant to Rule 809.32, Stats., I would have the opportunity to respond to the no-merit report and that the court would consider both the no-merit and my response in determining whether my case presented issues of merit.
I have carefully considered the situation, and it is my expressed desire that I be allowed to proceed pro-se. I make this decision freely, voluntarily, and intelligently.
/s/ Louis J. Thornton
Louis J. Thornton
05-11-63 Date of Birth
March 10, 2000 Date
OPTIONS
_ I hereby give my appellate counsel [name] permission to close my cases in regards to Dane County Case Nos. 99 CF 399 and 99 CF 1436.
I hereby request that my appellate counsel [name] file a no-merit brief in my cases, Dane County Case Nos. 99 CF 399 and 99 CF 1436.
L.T V I hereby request that my appellate counsel [name] seek permission to withdraw as my appellate counsel in Dane County Case Nos. 99 CF 399-and 99 CF 1436 in order that I may proceed pro-se.
I have checked the appropriate option above. I make this decision freely, voluntarily, and intelligently.
/s/ Louis J. Thornton
Louis J. Thornton
05-11-63 Date of Birth
March 10, 2000 Date

¶ 4. Counsel also stated in his withdrawal motion his belief that Thornton "freely and voluntarily desires to proceed pro-se," and he requested on Thornton's behalf that additional time be granted for Thornton to move for postconviction relief or to commence an appeal. In an order granting the motion to withdraw and a sixty-day extension of time, we concluded that "[t]he documents submitted satisfy us that [Thornton] is waiving his constitutional right to appellate counsel knowingly and voluntarily."

¶ 5. Thornton subsequently wrote to the trial court requesting the court to appoint him an attorney for postconviction proceedings. The record does not indicate what action, if any, was taken on this request, other than the forwarding of copies to the office of the State Public Defender and to the assistant district attorney who had prosecuted Thornton. Thornton next filed a pro se postconviction motion in the circuit court requesting that he be permitted to withdraw his no contest pleas. In it, he claimed, among other things, that his trial counsel had withheld certain information from him, thereby rendering his pleas unknowing and involuntary.

¶ 6. After filing his motion, Thornton again requested the trial court to appoint counsel for him. He forwarded with his request a copy of a letter from the office of the State Public Defender stating that it would not appoint counsel for Thornton because he "has waived his constitutional right to appellate counsel," citing this court's order to that effect.

¶ 7. The circuit court entered an order scheduling Thornton's motion to withdraw his plea for an eviden-tiary hearing. The order also stated that Thornton "should contact" the State Public Defender "and/or" the Legal Assistance for Inmates Program at the University of Wisconsin Law School "for legal assistance." Thornton apparently contacted the latter as there is correspondence in the record from the director of the program to the court indicating that, after speaking to a program attorney, "Mr. Thornton declined LAIP representation." Another letter from the State Public Defender reiterated to Thornton that because he had chosen "to dismiss the lawyer that this office appointed to handle your appeal, we will not appoint another lawyer for you on this matter."

¶ 8. Thornton renewed his request for court-appointed counsel several more times prior to and at the commencement of the hearing on his motion. The trial court denied Thornton's request and conducted the hearing. Thornton was the lone witness, and the following summary by the prosecutor accurately characterizes his testimony:

In effect, your Honor .. . [a]ll of Mr. Thornton's claims, incoherent as they are, boil down to claims that [trial counsel] was ineffective. She didn't meet with him, she didn't talk with him, she didn't discuss, she didn't separate these two cases in her mind, she didn't provide him with discovery, and that, therefore, his pleas were involuntary because he was confused by inadequate counsel.

The court denied Thornton's motion, concluding that he had not satisfied his burden to establish grounds for withdrawing his pleas. The court stated that it remembered and had reviewed the transcript of Thornton's plea hearing, where "we took a lot of time ... to make sure that you understood everything, that you asked questions, that you had a chance to communicate."

¶ 9. Thornton appeals, pro se, the subsequently entered order denying his postconviction motion, as well as the judgment of conviction which preceded it.

ANALYSIS

¶ 10. In its response brief, the State has "reassembled" Thornton's arguments on appeal into two distinct claims of error: "(1) [violation of his right to counsel in his direct appeal"; and "(2) [p]lea withdrawal on grounds of ineffective assistance of trial counsel." Thornton did not file a reply brief, and he has therefore not objected to the foregoing statement of the issues raised in his appeal. We accept the State's framing of the issues as a fair characterization of the claims Thornton has presented for review. We address them in the order stated.

¶ 11. Whether Thornton was wrongly deprived of his constitutional right to counsel is a question of constitutional fact which we review de novo. See State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 647-48, 579 N.W.2d 698 (1998). Questions of "constitutional fact" are not actually "facts" in themselves, but are questions which require the " 'application of constitutional principles to the facts as found.'" See State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984) (citation omitted). The facts relating to Thornton's claim that he was wrongfully denied counsel during postconviction proceedings are not disputed, leaving only the legal question of whether his constitutional rights were violated.

¶ 12. A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal his or her conviction to this court. Wis. Const. art. I, § 21(1); State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). The right to an appeal includes the right that "the appeal be a meaningful one." Id. at 99. An indigent defendant is constitutionally entitled to the appointment of counsel at public expense for the purpose of prosecuting his or her "one and only appeal. . . as of right" from a criminal conviction. Douglas v. California, 372 U.S. 353, 357-58 (1963); State ex rel. Warren, 219 Wis. 2d at 648.

¶ 13. The State does not dispute that Thornton is indigent, and it concedes that the instant appeal, including the postconviction proceedings in the trial court which preceded it, constitutes Thornton's first effort to obtain relief from his conviction under Wis. Stat. Rule 809.30 (1999-2000). Thus, there is no dispute that Thornton was constitutionally entitled to he represented by counsel at public expense, unless he lawfully waived or for some reason forfeited that right.

¶ 14. The State argues that Thornton knowingly and voluntarily waived his right to postconviction counsel. A criminal defendant may waive his or her right to counsel in criminal trial court proceedings, provided the record reflects that the waiver is knowingly, intelligently and voluntarily made, and that the defendant is competent to proceed pro se. State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997). Appellate or postconviction counsel appointed by the State Public Defender may move to withdraw from representation of a client, and in determining the motion, the court "shall consider ... whether the defendant waives the right to counsel." Wis. Stat. Rule 809.30(4)(c). Although several Wisconsin appellate opinions address the requirements for effecting a valid waiver of trial counsel, there appears to be no state precedent which squarely addresses the requirements for a proper waiver of post-conviction or appellate counsel.

¶ 15. The United States Court of Appeals for the Seventh Circuit, however, has addressed the issue in a case involving a Wisconsin state court conviction and appeal. See Oimen v. McCaughtry, 130 F.3d 809 (7th Cir. 1997). Oimen was convicted of felony murder and he appealed to this court. Id. at 810. The State Public Defender appointed postconviction/appellate counsel, who filed a postconviction motion in the circuit court on Oimen's behalf. Id. After the motion was denied, counsel filed a notice of appeal and an opening brief with this court, and the State responded. Id. At that point, Oimen moved pro se for his appellate counsel to withdraw because he "refused to raise a claim of ineffective assistance of trial counsel" that Oimen wanted counsel to pursue. Id. Counsel responded by requesting permission to withdraw, citing Oimen's claim that he was providing ineffective representation and the resulting conflict of interest which that claim created for counsel. Id. at 810-11.

¶ 16. We "advised Oimen in writing that he might not be granted new appellate counsel if [his present appellate counsel] were allowed to withdraw," and we ordered him to "advise the court whether, knowing that he may be forced to proceed pro se, he still wanted" his counsel removed. Id. at 811. Oimen responded in writing that he wanted to proceed in that fashion, and we granted his motion and his counsel's request. Id. We also decided not to consider the brief counsel had filed on Oimen's behalf, and both we and the State Public Defender declined to appoint Oimen successor counsel. Id. Oimen filed a pro se brief and we affirmed his conviction, as did the Wisconsin Supreme Court, where Oimen was represented by a state public defender on the petition for review. Id.

¶ 17. The Seventh Circuit noted that Oimen was constitutionally entitled to counsel during proceedings in this court, and also when he was asked to decide whether to return to the circuit court for a Machner hearing. Id. The court also pointed out that Oimen did not have to show that he suffered prejudice from his lack of counsel at that stage of the appeal process because it constituted a complete denial of representation. Id. The court determined that the dispositive inquiry was "whether the letters between Oimen and the court of appeals constitute a valid waiver of the right to counsel." Id. It concluded that they did:

But what exactly does it take to effectuate a valid waiver of counsel on appeal? For reasons that are too clear to us to require explanation, appellate courts do not engage in face-to-face dialog with defendants. So a waiver on appeal must be accomplished through written communication. Here the court of appeals told Oimen that if he insisted on having [his counsel] withdraw he might not get a second attorney. It was clear that Oimen wanted substitute counsel, but he also clearly signaled his willingness to proceed pro se if [his present counsel] was his only other choice. Especially given that [counsel]'s only perceived deficiency was that he would not do something which Oimen had no right to insist on, we find that Oimen validly waived his right to counsel.

Id. at 812.

¶ 18. The United States District Court for the Eastern District of Wisconsin has distinguished Oimen in a case where it concluded a defendant's right to postconviction/appellate counsel was violated. Wisconsin ex rel. Toliver v. McCaughtry, 72 E Supp. 2d 960, 977 (E.D. Wis. 1999). The District Court explained that United States "Supreme Court precedent does not require . . . any specific court procedure — such as a court hearing — for finding waiver," and that the Seventh Circuit's opinion in Oimen acknowledged the validity of written communications in establishing waiver in the appellate counsel context. Id. at 974. The court concluded in Toliver, however, that this court had "failed to use any means to provide Toliver with a warning or confirm that he was knowingly seeking to proceed pro se and had no misconceptions about whether substitute counsel would be appointed." Id. at 977.

¶ 19. The court also contrasted our actions in Toliver with the waiver of counsel procedure described in an unpublished decision of this court. The District Court's comments suggest that our actions in the unpublished case would pass constitutional muster:

[CJounsel informed the court [of appeals] that his client wished to proceed pro se. In a five-page order the court noted its independent responsibility to determine that a waiver of counsel is made "knowingly, voluntarily and intelligently, as a deliberate choice to proceed pro se with an awareness of the difficulties such self-representation entails"; provided the appellant with information on how counsel could be valuable to him; informed him about his right to a no merit report; and, importantly, warned the appellant twice that it would not appoint successor counsel. The court allowed [the defendant] an opportunity to advise the clerk whether he still wished to discharge his attorney and indicated ■ that if [his] response left the court "in doubt as to his understanding of the consequences of proceeding pro se," the court would not authorize counsel's withdrawal.

Id. at 978 (citations omitted).

¶ 20. On a distinct but related issue of how appointed counsel, after concluding there is no merit to further postconviction or appellate proceedings on behalf of a client, should document the client's decision to waive an appeal, the Wisconsin Supreme Court has declined "to make any particular method of documentation mandatory." State ex rel. Flores v. State, 183 Wis. 2d 587, 624, 516 N.W.2d 362 (1994). The court explained that the record must reflect that the defendant was informed of the right to appeal and of the right to counsel, as well as of the "No Merit report option" under Anders v. California, 386 U.S. 738 (1967) and Wis. Stat. Rule 809.32. Id. at 603-07. However, "[i]t does not matter how or in what manner the defendant is so informed." Id. at 610.

We conclude that a criminal defendant may be informed about appellate rights through the use of written materials. Once so informed, the information need not be repeated verbally. Again, all that is required is that the proper information be conveyed.

Id. at 614.

¶ 21. The State offers the following synthesis of the foregoing decisions. Before a court may conclude that a criminal defendant has knowingly and voluntarily waived his or her right to counsel on direct appeal, it must satisfy itself that the defendant is aware: (1) of the Flores rights (to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report); (2) of the dangers and disadvantages of proceeding pro se; and (3) of the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed to represent the defendant in the appeal. We agree with the State that ensuring a defendant has received and understands the listed information is both necessary and sufficient to support a determination that the defendant's tendered waiver of counsel is knowing and voluntary.

¶ 22. We also conclude that, given the nature of proceedings in this court, the necessary "colloquy" may be accomplished via written communications with the defendant, initiated either by the court or by counsel seeking to withdraw. In the latter case, however, the court must satisfy itself as to the sufficiency of the content of counsel's documents and to their voluntary execution by the defendant. If counsel moves to withdraw prior to the filing of a notice of appeal, the motion must be directed to the circuit court (see footnotes 1 and 4), and a more traditional oral colloquy between defendant and the court should be employed. See Klessig, 211 Wis. 2d at 206.

¶ 23. To the foregoing requirements for a valid waiver in all cases, we add the following which may apply in some. If a waiver of appellate counsel is tendered to this court, and we determine that the correspondence among counsel, the defendant and the court (or anything in the record, if it has been filed) raises a question regarding the defendant's understanding of the necessary information, we may either deny the waiver or refer the matter to the circuit court to conduct a hearing on the matter. The same would apply if we have reason to doubt the defendant's competency for self-representation. See id. at 212. On this latter point, we note that "persons of average ability and intelligence" should be permitted to represent themselves, and that we should only deny or delay the acceptance of an otherwise proper waiver if" 'a specific problem or disability can be identified'" in the submissions before us. Id. (citation omitted).

¶ 24. We are satisfied that these requirements for a valid waiver of appellate counsel are met on the present record. The documents prepared by counsel and executed by Thornton, together with the statements in counsel's motion to withdraw (see ¶¶ 3-4), establish that Thornton received and acknowledged his understanding of the necessary information to render his waiver knowing and intelligent. Nothing in these materials calls into question the voluntariness of Thornton's decision to proceed pro se or his competence to represent himself. Soon after we accepted his waiver and permitted his counsel to withdraw, Thornton had a change of heart and actively pursued the appointment of successor counsel in the circuit court. That fact, however, does not undermine the validity of his initial, knowing and voluntary decision to represent himself in postconviction and appellate proceedings.

¶ 25. We turn next to Thornton's claim that the trial court erred in denying his request to withdraw his pleas on the grounds that his trial counsel rendered ineffective assistance prior to his pleading no contest. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that his trial counsel's performance was deficient and that this performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In analyzing an ineffective assistance claim, this court may choose to address either the "deficient performance" component or the "prejudice" component first. See id. at 697. If we determine that the defendant has made an inadequate showing on either component, we need not address the other. See id. To establish prejudice, Thornton must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

¶ 26. Although the circuit court conducted an "evidentiary. hearing," the only testimony Thornton presented was his own. We must first decide, therefore, if the trial court properly denied Thornton's motion without hearing from Thornton's trial counsel regarding the events which preceded Thornton's plea. (See footnote 5.) In effect, the dispositive question is: Did the trial court err in denying Thornton's postconviction motion without a (complete) evidentiary hearing? We conclude the court did not err.

¶ 27. A circuit court may deny a postconviction motion alleging ineffective assistance of counsel as a basis for plea withdrawal without conducting a Mach-ner hearing if the motion fails to allege sufficient facts which, if proven, would entitle the defendant to relief. See State v. Bentley, 201 Wis. 2d 303, 318, 548 N.W.2d 50 (1996). Thornton's motion alleges, in conclusory fashion, that his trial counsel did not inform him of certain facts, and had she done so, he would not have pled no contest. Lacking, however, is any" 'explanation of why the defendant alleges he would have gone to trial,'" id. at 314 (citation omitted), or objective facts which would "allow the court to meaningfully assess his claim of prejudice," id. at 318.

¶ 28. Moreover, as the State points out, the plea bargain which Thornton and his counsel struck with the State reduced his potential maximum exposure from 102 years of imprisonment to twenty, and obtained for him a joint sentencing recommendation (which the court accepted) of only four years imprisonment with five years concurrent probation. Thornton's chief complaint against his trial counsel is that he lacked full knowledge of a possible defense against one or more of the forgery counts. He offers no explanation in his motion, however, as to why this knowledge (or longer discussions with his counsel) would have prompted him to reject an extremely favorable plea agreement which resolved all pending charges, and which he had apparently instructed his counsel to propose. (See footnote 10.)

¶ 29. Finally, as we have noted, Thornton testified at the postconviction hearing. His testimony essentially replicated the allegations in his motion. Just prior to the court's ruling, the prosecutor asked Thornton the following:

Q Your basic claim, if I'm understanding, Mr. Thornton, is that [trial counsel] did not pass on to you information about your case and that had you had that information at the time to think about it, to digest it, that you would not have entered your pleas. Have I got that essentially right?

Rather than agreeing with the prosecutor's potentially helpful summary, however, Thornton replied: "Essentially, no. My basic thing is that my attorney knew I wasn't guilty. You knew I wasn't guilty. Why would you convict an innocent man?"

¶ 30. Thornton's response arguably negates any claim of prejudice stemming from his counsel's alleged omissions because it disavows a causal connection between the omissions and Thornton's plea. His protestation of innocence, although a factor to be considered in certain plea withdrawal contexts, does not cure Thornton's failure to allege objective facts from which a court could conclude that he had suffered prejudice on account of his trial counsel's performance. In short, we agree with the trial court's conclusion that Thornton did not meet his burden to put forward sufficient factual allegations, which if true, would support withdrawal of his no contest pleas.

CONCLUSION

¶ 31. For the reasons discussed above, we affirm the appealed judgment and order.

By the Court. — Judgment and order affirmed.

       At the time (January 2000), motions for withdrawal by postconviction or appellate counsel were routinely filed in this court regardless of whether a notice of appeal had been filed. Effective July 1, 2001, however, Wis. Stat. Rule 809.30(4)(a) directs that prior to the filing of a notice of appeal, withdrawal motions are to be filed in the circuit court, and after the filing of a notice of appeal, in this court. Additionally, we note that all references in this opinion to provisions of Wis. Stat. Rule ch. 809 are to the version effective on and after July 1, 2001.

       The right in dispute in this appeal, that of an indigent defendant to have counsel provided at public expense for purposes of a first appeal as of right from a state criminal conviction, appears to be grounded in the due process clause of the Fourteenth Amendment, rather than in the Sixth Amendment, which applies to "criminal prosecutions." See Douglas v. California, 372 U.S. 353, 357-58 (1963); but see McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436 (1988) ("If a convicted defendant elects to appeal, he retains the Sixth Amendment right to representation by competent counsel.. . .").

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. As we have noted, however, our references to Wis. Stat. Rule ch. 809 are to the version effective as of July 1, 2001.

       Thornton's postconviction/appellate counsel filed a "motion to withdraw as counsel." In this appeal we decide only whether we correctly concluded that Thornton knowingly and voluntarily waived his right to counsel. We do not address, because the issue is not before us, whether Wis. Stat. Rule 809.30(4), or other law, requires that a motion to withdraw be filed any time an attorney appointed by the State Public Defender terminates his or her postconviction/appellate representation of a defendant.

        State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (holding that a postconviction, evidentiary hearing at which trial counsel explains "the reasons underlying his handling of a case" is "a prerequisite to a claim of ineffective representation on appeal").

        State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994), addressed a circumstance where appointed counsel, after conferring with her client, determined that the client had agreed to abandon an appeal. Counsel then simply "closed the file" without moving to withdraw or filing a no merit report. See Wis. Stat. Rule 809.32(l)(b)l.b. The supreme court discussed, among other things, whether the defendant had validly "waived his right to appeal," Flores, 183 Wis. 2d at 615, and whether counsel had rendered effective assistance prior to the waiver, id. at 600-01. Here, Thornton opted to proceed pro se in filing a postconviction motion and an appeal, another result that may follow a determination by postconviction/appellate counsel that further proceedings would lack merit. See Wis. Stat. Rule 809.32(l)(b)l.c. The issue before us is whether Thornton knowingly and voluntarily waived his right to counsel, a question that was not before the court in Flores.

       For example, a defendant might be advised "that there are established rules governing the manner in which a case is ... [appealed and argued on appeal] and that [the defendant] would be bound by them, despite his lack of formal training in the law." See Pickens v. State, 96 Wis. 2d 549, 565, 292 N.W.2d 601 (1980), overruled on other grounds by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997).

       This court does not engage in factual inquiries, but we may refer questions to the circuit court for the purpose of making factual determinations. See Wis. Stat. § 808.075(6) ("appellate court may remand the record to the circuit court for additional proceedings while the appeal is pending"); Wis. Stat. § 752.39; State v. Knight, 168 Wis. 2d 509, 521, 484 N.W.2d 540 (1992) (in writ proceedings, court of appeals may refer issues of fact to circuit court or a referee).

       Prior to his withdrawal, Thornton's postconviction counsel requested that we extend the time for filing a postconviction motion or notice of appeal, in part because of counsel's need to investigate Thornton's then recent claim "that he is suffering from a mental illness." We granted the request. Counsel's next submission to us was the motion to withdraw, which recited, among other things, that counsel had informed Thornton of counsel's "final conclusion ... that there were no meritorious issues to raise on appeal," and that counsel believed "that defendant freely and voluntarily desires to proceed pro-se." We conclude from this that counsel could not substantiate Thornton's mental illness claim.
      After we granted the withdrawal motion, Thornton communicated with this court on several occasions regarding his need for extensions of filing deadlines and his request for a fee waiver. In these communications Thornton neither raised any claim of mental illness nor gave any other indications that he was not competent to represent himself in the appeal.
      Finally, we note that after the circuit court denied his postconviction motion and he filed his notice of appeal, Thornton moved this court for the appointment of counsel. The only grounds cited in Thornton's motion were the "inadequate law library" at his institution and his lack of legal training and experience. Absent from the motion was any claim of mental illness or other disability, or any indication that Thornton did not possess "average ability and intelligence." See Klessig, 211 Wis. 2d at 212. We denied the motion for appointment of counsel but granted Thornton additional time to file his opening brief.

       In addition to some vague assertions regarding trial counsel's failure to spend sufficient time discussing the plea agreement with him, and his consequent "loss [of] trust" in counsel and "panic," Thornton claims to not have been aware until after his plea that the victim of the forgery had written the prosecutor to acknowledge that she may have signed some of the checks thought to have been forged by Thornton. An attachment to his motion, however, which Thornton also subsequently proffered as evidence at the postconviction hearing, appears to be an excerpt from a letter to Thornton from his trial counsel in which counsel recites that she had discussed with Thornton (1) the State's proof problems on some of the forgery counts, and (2) her opinion that "a trial on the forgexy and vehicle charges had a reasonable chance of resulting in an acquittal." The excerpt also describes Thornton's active involvement in fashioning a plea bargain proposal which would greatly lessen his potential exposure to imprisonment, a proposal which was ultimately accepted by the State and the trial court.

       When a court considers whether to permit a defendant to withdraw a guilty or no contest plea prior to sentencing, "[a]n assertion of innocence is important, but not dispositive." State v. Leitner, 2001 WI App 172, ¶ 25, 247 Wis. 2d 195, 633 N.W.2d 207, aff'd, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341.