author: BROWN, P.J.

text:
    Mary Jane Lenhardt, Plaintiff-Appellant, v. Paul W. Lenhardt, Defendant-Respondent.
    Court of Appeals

      No. 99-2022.

      Submitted on briefs May 18, 2000.

    Decided August 2, 2000.

    2000 WI App 201
    (Also reported in 618 N.W.2d 218.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Thomas D. Kuehl of Bihler & Kuehl, S.C. of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Leonard G. Leverson and Karen L. Tidwall ofKravit, Gass, Hovel & Leitner, S.C. of Milwaukee.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   BROWN, P.J.

¶ 1. Mary Jane Lenhardt appeals from a judgment dismissing her complaint against her son, Paul W. Lenhardt, where she requested specific performance of an alleged agreement to transfer title to a vacant lot. The judgment also found her action frivolous and awarded attorneys' fees to Paul. We uphold the trial court's determination that Mary Jane failed to meet her burden of proof in establishing an oral contract to convey the lot. We further uphold the trial court's finding of frivolousness. We reverse, however, that portion of the judgment awarding fees and remand for a new calculation because the trial court erred when it included fees incurred in a separate proceeding.

¶ 2. Contested in this case is the ownership of a vacant lot. Paul bought the lot in September 1994 with the plan of building a duplex. At that time, Mary Jane, Paul's mother, was going through divorce proceedings and planned to live in the duplex with Paul once it was built. As it turned out, Mary Jane reconciled with her husband later that year. Still, in January 1995, Mary Jane paid off Paul's mortgage on the lot. Later in 1995, Paul began dating the woman who is now his wife. They became engaged in July 1996. About six months later, Mary Jane began demanding that Paul either give her the lot or pay her back for paying off his mortgage. Paid refused. When Mary Jane began calling him on the phone repeatedly to demand that he give her the lot, Paid obtained a harassment injunction against her.

¶ 3. Mary Jane, in turn, filed suit against Paul. In her complaint, she claimed that Paul bought the lot as her agent with the agreement that he would later turn the lot over to her. She requested specific performance of the alleged agreement. Paul answered that "[t]here was never any agreement to transfer the property to [Mary Jane], though [she] did gift... $61,000... to [Paul] to pay off the mortgage for [the] lot." The case was tried to the court. In its oral decision, the trial court noted that the alleged agreement had never been reduced to writing, despite the requirement of the statute of frauds. The trial court found Mary Jane's testimony incredible, noting that it was riddled with contradictions. For example, Mary Jane testified that she had not told anyone that Paul's wedding was can-celled. Then she acknowledged that a note stating, "The wedding is off," was in her own handwriting. At the hearing for reconsideration, the trial court stated that a substantial basis for its decision was the finding that Mary Jane "is a liar and lied continuously throughout this trial." Concerning the alleged agreement to transfer the land, the court stated: "I am satisfied that there absolutely was not such a contract. I, did not find credible evidence in that regard." The trial court also found that the $61,000 had been a conditional gift but that Mary Jane's actions had made it impossible for Paul to carry out the condition of building the duplex. In a written judgment, the trial court dismissed Mary Jane's complaint, adjudged Paul the sole owner of the vacant lot and dissolved the lis pendens Mary Jane had placed on the lot. Further, the trial court found that Mary Jane had pursued the action "solely for purposes of harassing or maliciously injuring another," Wis. Stat. § 814.025(3)(a) (1997-98), and thus the action was frivolous. It awarded Paul $40,864 in attorneys' fees, some of which were incurred in pursuing the harassment injunction.

¶ 4. On appeal, Mary Jane has seized upon the trial court's conditional gift discussion and used it as the basis of her argument. She claims the trial court erred: (1) in finding that Paul was excused from his performance of the gift conditions, (2) in applying the doctrine of laches, (3) in considering Mary Jane's actions in the divorce case and her alleged interference with Paul's wedding, (4) in finding that the action was frivolous, and (5) in awarding attorneys' fees for Paul's presuit consultation with his attorney and for services rendered in the harassment injunction. Paul responds that the court properly found that he is the owner of the lot and that Mary Jane's action was frivolous.

¶ 5. This case starts and ends with the ownership of the lot. There is no dispute that Paul's name is on the warranty deed. He owns the lot in fee simple. In her complaint, Mary Jane claimed that he bought it as her agent and had agreed to transfer it to her. The trial court found that there was no credible evidence showing the existence of such an agreement.

¶ 6. Our standard of review is mixed. The factual findings the trial court made must be upheld unless clearly erroneous. See Wis. Stat. § 805.17(2). However, whether Mary Jane met her burden of proof is a question of law we review de novo. Finally, we note that a request for specific performance "is an equitable remedy and rests in the discretion of the court," even when the contract is in writing. Anderson v. Onsager, 155 Wis. 2d 504, 513, 455 N.W.2d 885 (1990) (quoting Edlin v. Soderstrom, 83 Wis. 2d 58, 70, 264 N.W.2d 275 (1978)).

¶ 7. Under the statute of frauds, see Wis. Stat. § 706.02, a contract to convey land must be in writing. See Spensley Feeds, Inc. v. Livingston Feed & Lumber, Inc., 128 Wis. 2d 279, 285, 381 N.W.2d 601 (Ct. App. 1985). However, Wis. Stat. § 706.04 provides the conditions under which a trial court may use equitable doctrines to enforce a promise to convey real estate despite noncompliance with the statute of frauds. The first condition under that statute is that "all of the elements of the transaction are clearly and satisfactorily proved." Id.

¶ 8. Here, it was not an erroneous exercise of discretion for the trial court to deny specific performance. The trial court found Mary Jane's testimony incredible and the record supports that finding. Because her testimony was incredible, it was insufficient to prove the existence of an agreement to convey the lot. Thus, the trial court was correct in refusing to enforce the agreement. We need not examine the rest of the conditions allowing enforcement under WlS. Stat. § 706.04 because the existence of the agreement was not clearly and satisfactorily proved.

¶ 9. The trial court's recognition that there was no agreement to convey the land disposed of the case. That the trial court then went on to characterize Mary Jane's payment of the mortgage as a conditional gift is of no moment. The comments about a conditional gift were extraneous to the court's decision on Mary Jane's cause of action. The trial court determined that her cause of action failed for lack of proof and that is the end of it. We thus need not address Mary Jane's conditional gift arguments since she never pled a conditional gift as an alternative and the issue was never joined. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (reviewing court need not address all issues raised on appeal when deciding case on other grounds); 5 C.J.S. Appeal and Error § 714 (1993) (reviewing court will not overturn a judgment based on several grounds if one of those grounds will sustain the judgment).

¶ 10. We now turn to the trial court's finding that Mary Jane's action was frivolous and the trial court's resultant award of attorneys' fees to Paul. The trial court found Mary Jane's suit frivolous under Wis. Stat. § 814.025(3)(a), concluding that the action was commenced "in bad faith, solely for the purposes of harassing or maliciously injuring another." Id. Mary Jane argues that the trial court erroneously exercised its discretion when it considered other aspects of the parties' relationship not associated with the lot, for example, Mary Jane's attempts to disrupt Paul's wedding. Further, Mary Jane claims that her action could not have been commenced solely to harass because she sought specific performance of Paul's promise to convey the lot; her motive was at least in part pecuniary. Finally, Mary Jane argues that even if her action was frivolous, it was error to award fees arising from Paul's presuit consultation with his attorney and fees associated with the harassment injunction. Paul responds that the trial court's consideration of all of Mary Jane's actions was appropriate. He maintains that case law requires a trial court to look at the big picture because "[sjeldom indeed will a party's subjective intent to harass be apparent from the face of the pleadings." Paul also contends that all fees awarded were appropriate because his presuit consultation and his injunction were directly related to the subject matter of this suit, since they were prompted by Mary Jane's attempts to bully him into turning over the property.

¶ 11. Whether an action is frivolous because it was filed solely to harass is a mixed question of fact and law. See Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 236, 517 N.W.2d 658 (1994). The trial court's findings of fact regarding "what was said, what was done, [and] what was thought . . . will not be upset unless they are against the great weight and clear preponderance of the evidence." Id. (citation omitted). However, whether the facts are enough to support the legal conclusion that the action was frivolous is a question of law we review de novo. See id.

¶ 12. Here, the record supports the facts found by the trial court and those facts in turn support the conclusion that the action was frivolous. The trial court noted several factual bases for its conclusion that the action was frivolous: Mary Jane's incredible testimony, the events underpinning the lawsuit, the events leading up to the harassment injunction and Mary Jane's interference with Paul's wedding. Our de novo weighing of the facts of record leads us to the same conclusion as the trial court: this action was filed solely to harass Paul and thus was frivolous.

¶ 13. Next, we decide whether the trial court had authority, under WlS. Stat. § 814.025, to award attorney fees for presuit consultation and for the harassment injunction. Our review of an award of attorney fees is deferential. We will uphold the award as long- as the trial court properly exercised its discretion by applying the appropriate legal standards to the facts of record to reach a logical conclusion. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 987, 542 N.W.2d 148 (1996). On the other hand, whether fees incurred in presuit consultation and ancillary matters come within the purview of § 814.025 requires us to construe that statute. The construction of a statute presents a question of law we review de novo. See Tatum v. LIRC, 132 Wis. 2d 411, 421, 392 N.W.2d 840 (Ct. App. 1986).

¶ 14. We first consider Paul's presuit consultation. Before Mary Jane filed the present action, Paul met with an attorney to discuss the lot ownership controversy. The trial court ruled that the subject matter of that consultation was sufficiently related to this case to render those fees part of the cost of the frivolous action. Mary Jane points to the words "an action or special proceeding commenced or continued," Wis. Stat. § 814.025(1), to support her argument that only fees incurred after the filing of the complaint can be awarded. But that phrase defines at what stage of the proceedings, an action can become frivolous — either when it is filed or at a later stage. The cited language does not define the scope of awardable attorney fees. Rather, the extent of the fee. award is specified by a later phrase: "reasonable attorney fees." Id. (emphasis added). Thus, as long as fees are sufficiently related to the cause of action before the court, it is their reasonableness, not the time they were incurred, that determines whether the court has authority to use its discretion in awarding them. Here, Paul met with an attorney to discuss the very problem that eventually caused Mary Jane to file this frivolous lawsuit. That the discussion took place prior to the filing of Mary Jane's complaint does not render those fees unrecoverable under § 814.025.

¶ 15. We reach the opposite conclusion, however, regarding the attorneys' fees awarded for Paul's harassment injunction: the trial court was without authority to award those fees. Paul argues that we should include those fees because Mary Jane's harassment is what made her case frivolous and it was that same harassing behavior that led him to seek an injunction against her. But the harassment injunction was a completely separate, albeit related, proceeding. Wisconsin Stat. § 814.025 speaks to an action or special proceeding in the singular. The statute only gives the trial court authority to award attorney fees for the action or proceeding before it, not for all ancillary proceedings precipitated by the frivolous action but not before the court.

' ¶ 16. Finally, Paul argues that Mary Jane's appeal was frivolous and that we should award him •appellate attorney fees and costs. See Wis. Stat. Rule 809.25(3). We may not award fees under Rule 809.25(3) unless the entire appeal is frivolous. See Manor Enters., Inc. v. Vivid, Inc., 228 Wis. 2d 382, 403, 596 N.W.2d 828 (Ct. App. 1999), review denied, 230 Wis. 2d 273, 604 N.W.2d 571 (Wis. Sept. 28, 1999) (No. 98-1709). Mary Jane prevailed on part of the attorneys' fees argument. Thus, we do not award fees and costs for a. frivolous appeal.

¶ 17. We affirm those portions of the judgment dismissing Mary Jane's complaint, declaring Paul the sole owner in fee simple of the lot, dissolving the lis pendens Mary Jane placed on the property, finding the action frivolous and awarding attorneys' fees. We reverse, however, those portions awarding .attorneys' fees for Paul's pursuit of the harassment injunction. We remand for a determination of which attorneys' fees are authorized in accord with this opinion.

No costs to either party.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1997 — 98 version.

       In her brief, Mary Jane incorrectly quotes this court in Stoll v. Adriansen, 122 Wis. 2d 503, 514-15 n.5, 362 N.W.2d 182 (Ct. App. 1984), as saying, "Even an action motivated primarily by a desire to harass is not sanctionable where a money judgment is sought." That sentence does not appear in Stoll. In Stoll, we said the following: "Subsection (3)(a) requires a finding that the sole purpose of the lawsuit was to harass the other party. The trial court found that while harassment was the Stolls' primary purpose, they also sought a money judgment Therefore, sec. 814.025(3)(a) cannot be a basis for finding the Stolls' claims frivolous." Id. But the language Mary Jane quotes as being from Stoll is not in that opinion, or in any other Wisconsin case for that matter. Furthermore, Mary Jane failed to note that our supreme court, while not explicitly overruling Stoll, subsequently clarified the law in Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 239-40 n.6, 517 N.W.2d 658 (1994) ("[A] claim of frivolousness under sec. 814.025(3)(a), Stats., does not fail merely because a party happens to seek a monetary judgment.").


source: Caselaw Access Project

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Calvin E. Gibson, Defendant-Appellant.

    Court of Appeals

      No. 99-2612-CR.

      Submitted on briefs June 26, 2000.

    Decided August 2, 2000.

    2000 WI App 207
    (Also reported in 618 N.W.2d 248.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Margaret A. Maroney, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Anderson and Snyder, JJ.

      Petition to review denied.

   BROWN, P.J.

¶ 1. The question presented is whether the habitual criminality enhancer may be applied to a conviction for a second offense felony of firearm possession. Calvin E. Gibson, who was convicted of being a felon in possession of a firearm, second offense, with a repeater enhancer, argues that the application of both the criminal and repeater statutes is "double enhancement," which this court prohibited in State v. Ray, 166 Wis. 2d 855, 873, 481 N.W.2d 288 (Ct. App. 1992). We hold that WlS. STAT. § 941.29(2m) (1997-98), the "second offense felon in possession" statute, creates its own separate offense. Because it is a separate crime and not a penalty enhancer, it will support the application of the habitual criminality statute. We affirm.

¶ 2. The facts are not in dispute. Gibson was walking with a companion on August 26,1998. Because the police were familiar with the companion due to an earlier weapon violation, they ordered the two to stop. Gibson fled. As Gibson was climbing over a fence, an officer saw a handgun fall from his waistband. The State charged Gibson with second offense possession of a firearm by a felon as a repeater and with obstructing an officer. See Wis. Stat. §§ 941.29(2m), 939.62, 946.41(1). Gibson moved to dismiss the habitual offender allegation, arguing that its application is improper when repeater statutes are an element of the underlying offense. When the trial court denied his motion, Gibson pled no contest. After having his argument rejected yet again by an order denying postconviction relief, Gibson brings his argument to this court.

¶ 3. Whether the habitual criminality statute may be applied to second offense felon in possession of a firearm is a question of statutory interpretation we answer without deference to the trial court. See Ray, 166 Wis. 2d at 872.

¶ 4. Before discussing the parties' arguments and our analysis, we initially set forth the statutes at issue. Wisconsin Stat. § 941.29(2)(a) makes it a Class E felony for a person who has been convicted of a felony to possess a firearm. Subsection (2m) states: "Whoever violates this section after being convicted under this section is guilty of a Class D felony." Section 941.29(2m). Wisconsin Stat. § 939.62 is the general repeater statute, entitled 'Increased penalty for habitual criminality." The beginning of subsec. (1) explains: "If the actor is a repeater . . . the maximum term of imprisonment prescribed by law for that crime may be increased as follows." Section 939.62(1). The statute goes on to set forth the levels of enhancement for different maximum terms.

¶ 5. Gibson bases his argument on Ray and State v. Miles, 221 Wis. 2d 56, 584 N.W.2d 703 (Ct. App. 1998), review denied, 222 Wis. 2d 674, 589 N.W.2d 628 (Wis. Dec. 8, 1998) (No. 97-1364-CR). In Ray, the defendant was convicted of conspiracy to deliver cocaine. The trial court then doubled the maximum sentence pursuant to Wis. Stat. § 161.48(2) (1987 — 88). That statute specifies certain drug crimes for which the fines and terms of imprisonment are doubled if the person has been previously convicted under the chapter. Additionally, the trial court applied the general repeater statute, see Wis. Stat. § 939.62 (1987-88). We held that "both enhancement statutes may not be applied together for one conviction." Ray, 166 Wis. 2d at 873.

¶ 6. In Miles, the defendant was convicted of possession of marijuana. See Miles, 221 Wis. 2d at 57. Under the relevant statute, the maximum term of imprisonment was six months. See Wis. Stat. § 161.41(3r) (1993-94). Because it was Miles's second conviction, the State filed the action as a felony, using Wis. Stat. § 161.48(2) (1993-94) to double the maximum sentence and bump it up to one year. See id.; see also State v. Denter, 121 Wis. 2d 118, 121 n.6, 357 N.W.2d 555 (1984) (crimes punishable by imprisonment for one year or more are felonies). Miles argued that his prior conviction had to be proved at trial as an element of felony possession of marijuana. The court concluded that a penalty enhancer which does not "concern the factual circumstances surrounding the underlying crime" does not add an element to the offense which must be proved at trial. See Miles, 221 Wis. 2d at 65.

¶ 7. Gibson argues that Ray and Miles dictate that the general repeater statute cannot be applied to second-offense felon in possession. Here is his argument:' Ray says the trial court may not apply two enhancers — it is one or the other, not both. In the present case, according to Gibson, "[t]he circuit court ruled the Ray analysis was inapplicable because two enhancers were involved. The ’second offense’ is an element, the court ruled, not an enhancer." But, Gibson continues, Miles says that the prior offense is not an element. In sum, ”[T]he State cannot prevail in Miles because the repeater status was not an element and also prevail in this case because the repeater status is an element."

¶ 8. The flaw in Gibson's argument lies in the different nature of the statutes at issue. The enhancers in Ray and Miles did nothing but enhance another statute. Wisconsin Stat. § 961.48(2), the current and substantively unchanged version of the statute at issue in Ray and Miles, refers to the. doubling of fines and periods of confinement imposed by other statutes. Similarly, Wis. Stat. § 939.62 speaks to increasing the maximum term prescribed by other statutes. Neither creates a-crime in and of itself. In contrast, Wis. Stat. § 941.29(2m) defines a crime, one element of which is that the offender has been convicted under the same section before. True, we held the prior conviction not to be an element of the offense in Miles, but that is because the enhancer in Miles is a true enhancer, not a crime all on its own. Here, the prior conviction is written into the crime itself, just as a prior conviction is written into § 941.29(2), which criminalizes possession of a firearm by a felon. The elements of that crime are a prior felony conviction and possession of a firearm. See State v. Jones, 142 Wis. 2d 570, 576, 419 N.W.2d 263 (Ct. App. 1987). Subsection (2m) just adds one more element. Under that subsection, the elements are a prior felony conviction, possession of a firearm and a prior conviction of felon in possession. Our affirmance today conflicts with neither Miles nor Ray.

¶ 9. Nor does our holding conflict with State v. McAllister, 107 Wis. 2d 532, 538-39, 319 N.W.2d 865 (1982), where our supreme court held that prior violations of the operating while intoxicated statute need not be proved as elements for the purpose of applying Wis. Stat. § 346.65 to determine the penalty. In Wis. Stat. ch. 346, the legislature first, in Wis. Stat. § 346.63, defined operating while intoxicated. It then went on, in § 346.65, to prescribe a graduated penalty scheme. But, this "graduated penalty structure is nothing more than a penalty enhancer similar to a repeater statute which does not in any way alter the nature of the substantive offense, i.e., the prohibited conduct, but rather goes only to the question of punishment." McAllister, 107 Wis. 2d at 535. Like Wis. Stat. §§ 939.62 and 961.48, § 346.65 refers to a different statute altogether and defines penalties for that crime. Here, Wis. Stat. § 941.29(2m) adds one more element to the general crime described by § 941.29(2); it does not take another statute and build upon it, but rather it builds upon itself.

¶ 10. We are satisfied that the legislature meant for a prior conviction of possessing a firearm while being a felon under Wis. Stat. § 941.29(2m) to be an element of the crime. As pointed out by the State, when a felon is first convicted for possessing a firearm, the felon is subject to a maximum of two years' imprisonment for violating a Class E felony, along with repeater exposure of six years' imprisonment pursuant to Wis. Stat. § 939.62(l)(b). Thus, the total exposure for a first time offender, reading WlS. STAT. §§ 941.29(2) and 939.62(l)(b) together, would be eight years. However, if we were to accept Gibson's interpretation of the statute, a second offense — which brings a maximum of five years' imprisonment for violating a Class D felony — would not be subject to the repeater enhancer and the maximum exposure would remain at five years. Thus, a first-time offender would face three more years of maximum prison exposure than a second-time offender.

¶ 11. We cannot believe that this is what the legislature intended. Instead, we believe that the legislature meant to increase the exposure for those who had not learned their lesson the first time. Therefore, we are convinced that first-time offenders are exposed to two years plus six years for a total of eight years and that second-time offenders are exposed to five years plus six years for a total of eleven years. To read it any other way would be absurd; we will construe a statute so as to avoid an absurd or unreasonable result. See J.A.L. v. State, 162 Wis. 2d 940, 963, 471 N.W.2d 493 (1991).

¶ 12. In summary, WlS. STAT. § 941.29(2m) is not in the nature of a penalty enhancer. Rather, it defines an additional element of the crime described in § 941.29(2). Thus, it was proper for the trial court to apply the general repeater statute to Gibson in this case.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The current version of this statute is Wis. Stat. § 961.48(2).


author:
CURLEY, J.
      SCHUDSON, J.

text:
    Robert J. Baierl, d/b/a Supreme Builders, Plaintiff-Appellant, v. John McTaggart and Susan McTaggart, Defendants-Respondents.

    Court of Appeals

      No. 98-3329.

      Submitted on briefs February 1, 2000.

    Decided August 8, 2000.

    2000 WI App 193
    (Also reported in 618 N.W.2d 754.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Thomas L. Frenn and Roy H. Nelson oí Petrie & Stocking, S.C., of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Barry R. White of Weiss, Berzowski, Brady & Donahue, LLP, of Milwaukee.
    Before Wedemeyer, P. J., Schudson and Curley, JJ.

       Petition to review denied.

   CURLEY, J.

¶ 1. Robert J. Baierl, d/b/a Supreme Builders (Baierl), appeals from a judgment requiring Baierl to pay $4,484.94 to John and Susan McTaggart (McTaggarts). In this landlord-tenant dispute, the trial court granted summary judgment to the McTaggarts, the tenants, and after finding that the lease was void, ordered Baierl, the landlord, to pay twice the security deposit less some expenses to the McTaggarts. Baierl argues that the trial court erred in ruling that: (1) an addendum to Baierl's lease, which contained a prohibited clause under the Wisconsin Administrative Code, voided the entire lease; and (2) without a lease provision, Baierl unlawfully withheld the McTaggarts' security deposit. Baierl submits that, per the holding in Simenstad v. Hagen, 22 Wis. 2d 653, 126 N.W.2d 529 (1964), the trial court should have severed the prohibited clause from the lease as it was a non-essential clause which could be severed without defeating the primary purpose of the parties' agreement. Baierl argues that, after the trial court severed the offending lease provisions, it should have applied the security deposit to those items authorized by the remaining lease provisions. We agree and reverse.

I. Background.

¶ 2. On July 12, 1996, the McTaggarts signed a lease for an apartment owned by Baierl located in Oco-nomowoc, Wisconsin. The lease was to run from August 1, 1996, to July 31, 1997. The lease was lengthy, consisting of a two-page single-spaced standard residential lease plus several addenda. One of the terms of the lease required the McTaggarts to pay a security deposit of $1,790. In the longer addendum, the following language appeared at paragraph seventeen:

In the event that Supreme Builders shall be obliged to commence legal action in order to enforce the terms and conditions of any portion of this lease and amendment, the tenant shall be liable to Supreme Builders for all Supreme Builders' costs, disbursements and expenses incurred including, without limitation, reasonable attorney fees incurred.

Pursuant to the lease, the McTaggarts moved into the apartment. However, in a letter dated November 29, 1996, the McTaggarts wrote to Baierl advising that "we will be terminating our rental agreement as of February 1,1997." After receiving the letter, Baierl made an attempt to re-rent the apartment. When this task proved unsuccessful, Baierl then withheld the security deposit for unpaid rent and sued the McTaggarts to enforce the terms of the lease. Despite the wording found in paragraph seventeen, Baierl never sought reimbursement for all his "reasonably incurred" attorney fees. Instead, the complaint only sought the limited attorney fees authorized in WlS. STAT. § 799.25(10) and Wis. Stat. § 814.04(1).

¶ 3. The McTaggarts answered the complaint and counterclaimed seeking to rescind the lease. Later, they filed an amended answer in which they alleged that the entire lease was void because paragraph seventeen, found in the addendum, allowing Baierl to be reimbursed for all his reasonable attorney fees, was prohibited by an Agriculture, Trade and Consumer Protection provision of the Administrative Code, Wis. Admin. Code §ATCP 134.08(3). The McTaggarts brought a summary judgment motion claiming that the lease was void and, as a result, Baierl could not lawfully retain their security deposit and they sought double damages pursuant to Wis. Stat. § 100.20.

¶ 4. The trial court, while noting that the remedy suggested by the McTaggarts was drastic, adopted the McTaggarts' reasoning and granted the summary judgment motion. In doing so, the trial court found that because the clause in Baierl's addendum was prohibited, the entire lease was void. The trial court then concluded that, without a lease, Baierl unlawfully withheld the McTaggarts' security deposit and the trial court ordered Baierl to pay double damages to the McTaggarts, plus the McTaggarts' almost $3,000 in legal fees.

II. Analysis.

¶ 5. When the trial court granted the McTag-garts' summary judgment motion, it stated that "there is no clear statute on the subject, and there is no case law that is precisely on point." Baierl argues that the trial court erred because Simenstad v. Hagen clearly permits the severing of a prohibited clause from a contract and the enforcement of the remaining contract provisions. Baierl states that Simenstad's only restriction is that the removal of the offending clause must not defeat the primary purpose of the contract. Baierl contends that paragraph seventeen could easily have been severed from the lease provisions without destroying the primary purpose of the lease. Further, he asserts that equity clearly favors the enforcement of the other lease provisions as it was the McTaggarts who intentionally breached their duty by moving before the end of the lease period. Baierl also submits that it was unfair and harsh to require him to pay the McTaggarts' double damages on the security deposit and to pay their almost $3,000 in attorney fees generated by this litigation, when their breach of the lease resulted in a significant monetary loss for Baierl consisting of several months' rent plus additional expenses. We agree with all three of Baierl's arguments.

¶ 6. When reviewing a trial court's grant or denial of summary judgment de novo, we use the methodology set out in Wis. Stat. § 802.08(2). See Strassman v. Muranyi, 225 Wis. 2d 784, 787, 594 N.W.2d 398 (Ct. App. 1999). We need not repeat that methodology here, except to note that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. at 787-88.

¶ 7. Although decided on different facts, Simen-stad dealt with a shareholder agreement, the holding of the case authorized the severance of illegal provisions in the contract. See id. at 661. The case noted that the general rule on severability is that,

"A bargain that is illegal only because of a promise or a provision for a condition, disregard of which will not defeat the primary purpose of the bargain, can be enforced with the omission of the illegal portion by a party to the bargain who is not guilty of serious moral turpitude unless this result is prohibited by statute."

Id. at 661 (citation omitted). Further, the Simenstad court observed that: "[I]f the paragraph [in the shareholder agreement] were held to be invalid, the entire contract would not fail if that paragraph could be severed from the remainder of the agreement." Id.

¶ 8. In affirming the vitality of the rule severing offending clauses and enforcing the remaining contract, the Simenstad court relied on the holding found in Marshall v. Wittig, 213 Wis. 374, 251 N.W. 439 (1933):

The defendant contended on appeal that because of words in the portion of the note which provided for confession of judgment agreeing "to release the right of appeal," the agreement was contrary to public policy and therefore not enforceable. It was held on appeal that even if serious fault exists because of the use of such words, "they are so circumstanced that they are severable and may be ignored."

Simenstad, 22 Wis. 2d at 662 (quoting Marshall). In Marshall, the court directed that:

In no event can the words complained of have the effect insisted upon of rendering the note void in the absence of fraud or some undue advantage taken of the appellant, for there would still remain a lawful contract with valid and legal covenants to be enforced. In 3 Williston on Contracts, § 1779, it is said: "When some covenants of an indenture are legal and others illegal, the legal covenants may be enforced." In a contract containing a questionable provision which may be destroyed without defeating the primary purpose of the bargain, and where there is an absence of moral turpitude, a recovery would still be allowed.

Marshall, 213 Wis. at 379 (citation omitted) (quoted in Simenstad, 22 Wis. 2d at 662).

¶ 9. Although no Wisconsin case has applied the doctrine of severability to a landlord-tenant case, another jurisdiction has. In Campi v. Seven Haven Realty, 682 A.2d 281 (N.J. Super. L. 1996), the court construed a lease provision as being unenforceable that required the tenant to pay rent even though the tenant never took possession of the property and withdrew her application to rent the apartment. The court did, however, enforce another provision that required the tenant to pay the application fee.

¶ 10. Under the circumstances present here, applying the severability doctrine to the McTaggarts' lease is a reasonable extension of Simenstad. First, Baierl never attempted to enforce the illegal provision, despite its existence in the addendum; he only requested the limited attorney fees authorized in Chapters 799 and 814. Thus, it does not appear from the record that Baierl engaged in any "serious moral turpitude" which would prevent severance. As noted, while paragraph seventeen is prohibited, the lease is voluminous, consisting of a standard residential lease and three addenda, and the prohibited clause found in paragraph seventeen was tucked into an addendum, not the standard residential lease. Second, no statute forbids the severance of the clause from the lease. Third, severing paragraph seventeen from the remainder of the lease documents does not defeat the primary purpose of the lease. The primary purpose of the lease was to spell out the rights and duties between the landlord and tenant for the renting of the apartment. This primary purpose can easily be met by severing the offending clause and enforcing the remaining lease provisions.

¶ 11. Our review of the record also supports a finding that equity favors Baierl in this lawsuit. The McTaggarts entered into a lease for one year and then breached it several months later. It was disclosed at the hearing that the McTaggarts were building a new home in Ohio and, shortly after the home was completed, the McTaggarts gave Baierl notice of the termination. The McTaggarts originally gave no reason for terminating the lease, and the reason proposed after litigation began was that, at the time of the signing of the lease, they were unaware that train tracks were located some distance from the apartment. Their tardy contention that train noise forced them to move appears disingenuous. Had the McTaggarts' breach of the lease been motivated by the train noise, one would have expected them to have communicated that fact to Baierl at the time of the breach, rather than after litigation began. Regardless of the reason, it was the McTaggarts who breached the lease. Equity and public policy favor parties who uphold their contractual obligations.

¶ 12. Additionally, an unusual set of circumstances exists with regard to the security deposit. Baierl argues that the trial court erred when it found that, absent a valid lease, he unlawfully withheld the McTaggarts' security deposit. Originally, by way of the lease, the McTaggarts had authorized Baierl to withhold the security deposit for rent. Baierl's withholding the security deposit only became unlawful later, when the trial court determined that the lease which permitted the security deposit to be used in this fashion was void. Thus, at the time Baierl enforced the lease provision, applying the security deposit against rent owed was permissible. Consequently, Baierl properly applied the security deposit towards the McTaggarts' outstanding rent. Given our determination that the remaining lease provisions are valid and allow for the application of the security deposit towards unpaid rent and other expenses, the McTaggarts are not entitled to any damages under Wis. Stat. § 100.20.

¶ 13. We also conclude that the remedy fashioned by the trial court was unduly harsh and unjust. Not only were the McTaggarts relieved of the duty to pay rent for the lease term, but they were paid double their security deposit and reimbursed all of their attorney fees. The McTaggarts have obtained a windfall for what was, undisputedly, their breach of the lease. Conversely, Baierl was not compensated for the many months that the apartment went vacant, nor did he recover any of his expenses in cleaning the apartment and in attempting to re-rent it. He also was denied reimbursement for his statutorily-authorized attorney fees. Moreover, he was ordered to pay twice the amount deposited by the McTaggarts and their attorney fees in defending against their breach of the lease. No reasonable argument can be made that this outcome was fair.

¶ 14. For all of the reasons stated, the summary judgment is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion.

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

SCHUDSON, J.

¶ 15. (dissenting). The issue in this appeal is whether the trial court was correct in voiding a lease because Addendum A, paragraph seventeen, of the lease provided:

In the event that Supreme Builders shall be obliged to commence legal action in order to enforce the terms and conditions of any portion of this lease and amendment, the tenant shall be liable to Supreme Builders for all Supreme Builders' costs, disbursements and expenses incurred including, without limitation, reasonable attorney fees incurred.

I conclude that the trial court was correct. I further conclude that the majority has inappropriately engaged in fact-finding and, in order to support its decision, has drawn an inference wholly unsupported by the record. Finally, I conclude that the majority's decision undermines the consumer protection that the legislature intended in enacting WiS. Stat. § 100.20.

¶ 16. Wisconsin Admin. Code ch. ATCP 134 was adopted pursuant to WiS. Stat. § 100.20. See WiS. Admin. Code § ATCP 134.01. Wisconsin Admin. Code § ATCP 134.08 (1990) provides, in relevant part:

No rental agreement may:
(3) Require payment, by the tenant, of attorney's fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This does not prevent the recovery of costs or attorney's fees by a landlord or tenant pursuant to a court order under ch. 799 or 814, Stats.

On appeal, Supreme Builders concedes that Addendum A, paragraph seventeen, of its lease violates § ATCP 134.08(3). In the trial court, however, Supreme Builders never conceded that paragraph seventeen violated the administrative rule, and never argued that the provision was severable. Instead, Supreme Builders repeatedly argued that paragraph seventeen merely provided for "the recovery of costs or attorney's fees" under the second sentence of § ATCP 134.08(3).

¶ 17. The trial court, not Supreme Builders, first raised the possibility that the lease could be saved by severing paragraph seventeen. Even when the trial court all but invited Supreme Builders to argue sever-ability, Supreme Builders still failed to do so and, instead, remained true to its contention that paragraph seventeen was legal. Nevertheless, the trial court considered severability, commenting: "I'm looking for a way to read [paragraph seventeen] so it can be severed from the rest of the contract and simply [be] deemed unenforceable to avoid the drastic results [of voiding the lease]."

¶ 18. The trial court rejected Supreme Builder's argument that paragraph seventeen was legal, and Supreme Builders does not renew that argument on appeal. The trial court also concluded that the lease could not be saved by severing the illegal paragraph because the "trend and philosophy [of the case law] is that the inclusion ... of contract provisions which are directly prohibited by Consumer Protection Statutes results in the voiding of the entire contract."

¶ 19. More than two months later, Supreme Builders moved the trial court for reconsideration but still did not argue or even raise severability. Now, on appeal, Supreme Builders implicitly concedes, for the first time, that paragraph seventeen is illegal and argues, for the first time, that it should be severed to save the lease. Thus, the record does not support the majority's assertion that Supreme Builders "suggested that the trial court consider enforcing the lease and find the prohibited clause 'unenforceable.'" Majority at ¶ 5 n.4. See State v. Anderson, 215 Wis. 2d 673, 683, 573 N.W.2d 872 (Ct. App. 1997) (appellate court not required to consider arguments raised for first time on appeal). But see State v. Weber, 164 Wis. 2d 788, 791, 476 N.W.2d 867 (1991) ("Once an issue is raised in a petition for review, any argument addressing the issue may be asserted in the brief of either party or utilized by this court.").

¶ 20. Assuming we should reach the merits of the argument Supreme Builders raises for the first time on appeal, I conclude that the trial court was correct.

¶ 21. To reach its result, the maj ority inappropriately engages in fact-finding. See State v. Hydrite Chem. Co., 220 Wis. 2d 51, 79, 582 N.W.2d 411 (Ct. App.) (court of appeals is "a reviewing court, not a fact-finding court"), review denied, 220 Wis. 2d 364, 585 N.W.2d 156 (1998); see also Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980) (clarifying that Wis. Const, art. VII, § 5(3) "precludes [court of appeals] from making any factual determinations where the evidence is in dispute"). The majority states: "[T]he lease is voluminous, consisting of a standard residential lease and three addenda, and the prohibited clause found in paragraph seventeen was tucked into an addendum, not the standard residential lease." Majority at ¶ 10 (emphasis added). Thus, the majority infers that it was not Supreme Builder's standard practice to execute leases with the offending language, and concludes that Supreme Builders did not engage in "any 'serious moral turpitude' which would prevent severance." See id.

¶ 22. The record provides no basis for the majority's factual finding or inference. Addendum A, the first of three addenda, all of which were dated and signed together with the lease, contains not only paragraph seventeen but numerous other provisions including one stating, "Tenant acknowledges that this addendum constitutes a part of the agreement with Supreme Builders and is considered as a part of the lease to which it is attached." Most significantly, the addendum is titled "ADDENDUM A SUPREME BUILDERS ADDITIONAL CONDITIONS TO THE LEASE FOR _AT_." See Appendix. Thus, the addendum does not appear to be one designed solely for the tenants in this case. Accordingly, the record casts considerable doubt on the majority's speculation that it was not Supreme Builder's standard practice to execute leases with the offending language.

¶ 23. Severing paragraph seventeen in order to save Supreme Builders' lease undermines the consumer protection provided by Wis. Admin. Code ch. ATCP 134. As the McTaggarts argue:

[I]f the Court concludes that the illegal provision does not render the lease void, the Court will have nullified Wis. Admin. Code § ATCP 134.08(3). Once this Court determines that landlords will never suffer any repercussions from including an illegal attorney's fees provision in their leases (other than the provision not being enforced), many landlords will intentionally include [an] illegal attorney's fees provision in their leases. Occasionally some tenants would be willing [to] pay the landlord's attorney's fees; others who knew the law would not. However, the result [Supreme Builders] urges would encourage landlords to violate Wis. Admin. Code §ATCP ch. 134 by allowing them to occasionally collect their attorney's fees without fear of ever suffering any consequence. This result turns Wis. Admin. Code § ATCP ch. 134 on its head by penalizing the very people who most need its protections: those too unsophisticated or poor to hire a lawyer who knows that an attorney's fees provision violates Wis. Admin. Code § ATCP 134.08(3).

The McTaggarts are correct.

¶ 24. In Shands v. Castrovinci, 115 Wis. 2d 352, 340 N.W.2d 506 (1983), the supreme court, deciding whether WlS. STAT. § 100.20(5) required an award of reasonable attorney fees for an appeal in an action resulting from a violation of Wis. Admin. Code § Ag 134.06, see Shands, 115 Wis. 2d at 354, reiterated that "a 'cardinal rule in interpreting statutes' is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act," id. at 356 (emphasis added). The supreme court explained that § 100.20(5) "gives any person who suffers damages because of a violation of the administrative regulations, including Ch. 134, a right to recover twice the amount of pecuniary loss, together with costs, including a reasonable attorney fee." See id. at 357. The court acknowledged that "generally, except for court costs and fees, a plaintiff may not recover attorney fees and expenses of litigation... unless such liability arises from specific statutory provisions or the contract of the parties." Id. Nevertheless, the court concluded that "a tenant who has suffered pecuniary loss because of a violation of Wis. Adm. Code Ch. Ag 134 shall recover reasonable attorney fees for appellate review undertaken to attack or defend a trial court's decision in the suit," id. at 359, consistent with the consumer protection principles underlying the statute and the administrative rule. The supreme court articulated four bases for its conclusion, all of which are applicable to this appeal.

¶ 25. First, the supreme court explained that allowing tenants to recover double damages and attorney fees "encourages injured tenants to bring legal actions to enforce their rights under the administrative regulations." See id. at 358. Quite obviously, lease provisions like paragraph seventeen would deter tenants from legally resisting landlords' efforts to enforce the terms of a lease even when the terms might be unlawful.

¶ 26. Second, the supreme court explained: "[T]he tenant who sues under [Wis. Stat. § 100.20(5)] acts as a 'private attorney general' to enforce the tenants' rights set forth in the administrative regulations. Thus, the individual tenant not only enforces his or her individual rights, but the aggregate effect of individual suits enforces the public's rights." Id. Similarly, tenants who, like the McTaggarts, invoke both the administrative rule and the statute in defending against a landlord's suit, "enforce[ ] the public's rights."

¶ 27. Third, the supreme court emphasized that "tenant suits have the effect of deterring impermissible conduct by landlords because, if they violate the administrative regulations, they will be subject to double damages and will be responsible for costs, including attorney fees." Id. Similarly, tenants who, like the McTaggarts, invoke both the administrative rule and the statute in defending against a landlord's suit, "deter[ ] impermissible conduct by landlords."

¶ 28. Fourth, the supreme court pointed out that "private tenants['] actions provide a necessary backup to the state's enforcement powers" under Wis. Stat. § 100.20, id,., and therefore "constitute an enforcement mechanism reinforcing that of the justice department," id. at 359. Clearly, that is no less so when tenants, like the McTaggarts, invoke both the administrative rule and the statute against a landlord suing under a lease containing an illegal provision that would reduce a tenant's legal leverage.

¶ 29. Paragraph seventeen violates Wis. Admin. Code § ATCP 134.08(3). By requiring tenants to pay the landlord's attorney fees and costs in any legal action "that Supreme Builders shall be obliged to commence ... in order to enforce the terms and conditions of any portion of this lease and amendment," paragraph seventeen shifts the balance of legal power between landlords and tenants, contrary to the clear intentions of the legislature and the Department of Agriculture, Trade and Consumer Protection. To conclude that the remedy is merely to sever the illegal provision is to eliminate the deterrent power of § ATCP 134.08(3). See Shands, 115 Wis. 2d at 359 (in action pursuant to Wis. Stat. § 100.20(5), tenant "is not successful until he or she has actually recovered damages and attorney fees").

¶ 30. At best, the majority reaches a result satisfying what it deems the equities of the instant case. The equities, however, rest in facts beyond the summary judgment record. Moreover, and most significantly in this case, the majority bases its legal conclusion about Supreme Builder's lack of "serious moral turpitude" on its own inference about what was not Supreme Builder's standard practice — an inference unsupported by the record and countered by the face of the addendum containing paragraph seventeen, as well as by the face of Addendum C-2, which also contains the "Supreme Builders" title.

¶ 31. And most dangerously, the majority opinion undermines the four consumer protection principles articulated by our supreme court in Shands. Under the majority's interpretation, Wis. Admin. Code § ATCP 134.08 now reads, between the lines:

ATTENTION LANDLORDS:
DO NOT REQUIRE TENANTS TO PAY YOUR ATTORNEYS' FEES OR COSTS IN ANY LEGAL ACTION OR DISPUTE.
HOWEVER, IF YOU DO, YOU PROBABLY WILL GET AWAY WITH IT.
BUT IF YOUR TENANT REALIZES THE REQUIREMENT IS UNLAWFUL, AND IF YOUR TENANT IS ABLE TO GO TO COURT TO CHALLENGE IT, YOU WILL NOT BE ALLOWED TO ENFORCE THE UNLAWFUL REQUIREMENT.
BUT DO NOT WORRY. ALTHOUGH YOU WILL NOT BE ALLOWED TO ENFORCE THE UNLAWFUL REQUIREMENT, YOU WILL SUFFER NO OTHER CONSEQUENCES.

That is not what the legislature or the department intended. That is not what Shands permits. Accordingly, I respectfully dissent.

       Although the original letter terminating the lease stated no reason for the termination, in the McTaggarts' counterclaim they contended that Baierl "negligently misrepresented" that the apartment was quiet. Approximately eighteen months after the letter was sent to Baierl, John McTaggart submitted an affidavit to the trial court alleging that the move was due to train noise. However, the McTaggarts did not pursue their claim that Baierl "negligently misrepresented" that the apartment was quiet.

       Wisconsin Stat. § 799.25(10) provides:
      (10) ATTORNEY FEES, (a) Attorney fees as provided in s. 814.04 (1) and (6), except if the amount of attorney fees is otherwise specified by statute.
      (b) In an action of replevin and attachment the value of the property recovered shall govern the amount of the attorney fees taxable. In an action of eviction the attorney fees taxable shall be $10 plus such sum as is taxable under par. (a) on account of the recovery of damages.
      (c) If judgment is for the defendant, the amount claimed in the complaint, the v.alue of the property sought to be recovered or the amount recovered on the defendant's counterclaim, in the court's discretion, shall govern the amount of the attorney fees that the defendant shall recover, and the defendant is not entitled to recover for cost items the defendant has not advanced.
      (d) No attorney fees may be taxed in behalf of any party unless the party appears by an attorney other than himself or herself.
      All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       Wisconsin Stat. § 814.04(1) provides:
      (1) ATTORNEY FEES, (a) When the amount recovered or the value of the property involved is $1,000 or over, attorney fees shall be $100; when it is less than $1,000 and is $500 or over, $50; when it is less than $500 and is $200 or over, $25; and when it is less than $200, $15.
      (b) When no money judgment is demanded and no specific property is involved, or where it is not practical to ascertain the money value of the rights involved, attorney fees under par. (a) shall be fixed by the court, but shall not be less than $15 nor more than $100.
      (c) No attorney fees may be taxed on behalf of any party unless the party appears by an attorney other than himself or herself.

       In response to the dissent's assertion that Baierl "never argued that the provision was severable," we note that, for most of the summary judgment hearing, Baierl's counsel persistently contended that paragraph 17 was not illegal because it was consistent with the second sentence of Wis. Admin. Code § ATCP 134.08(3) which reads:
      No rental agreement may
      (3) require payment, by the tenant, of attorney's fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This does not prevent the recovery of costs or attorney's fees by a landlord or tenant pursuant to a court order under ch. 799 or 814, Stats.

      Near the end of the hearing, however, when the trial court inquired about the possibility of severing the prohibited provision from the remainder of the lease, Baierl's attorney embraced the trial court's idea and suggested that the trial court consider enforcing the lease and find the prohibited clause "unenforceable." Thus, we are satisfied that Baierl adopted the trial court's argument which is presented here. Moreover, the waiver rule is predicated on the fact that the appellate court should not assume the trial court's role. See Prill v. Hampton, 154 Wis. 2d 667, 678, 453 N.W.2d 909 (Ct. App. 1990) ("The issue is deemed waived since the trial court never had the opportunity to consider" the parties' arguments) (citing Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980)). Here, the trial court did rule on the issue notwithstanding the fact that the trial court originally raised it.

       The dissent questions whether the majority opinion will undermine the consumer protection law. The majority is also committed to the protection of consumers, but this concern does not equate to the customer/tenant winning when equity and the reasonable application of the law dictates otherwise. Further, the hypothetical raised in the dissent is inappropriate to the facts as Baierl has never requested payment of his reasonable attorney fees either before or after the litigation was commenced. Finally, the dissent worries that non-enforcement will "penalize] the very people who most need its protections — those too unsophisticated or poor to hire a lawyer." However, here the record clearly indicates that the McTaggarts were neither unsophisticated nor poor.

       The second addendum is titled "ADDENDUM B." The third addendum is titled "ADDENDUM C-2 SUPREME BUILDERS PET AGREEMENT."

       Wisconsin Admin. Code ch. Ag 134 was subsequently renumbered ch. ATCP 134. See Wis. Admin. Code ch. ATCP 134 (1999), at 541.


author: CURLEY, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tronnie M. Dismuke, Defendant-Appellant.

    Court of Appeals

      No. 99-1734-CR.

      Submitted on briefs May 2, 2000.

    Decided August 8, 2000.

    2000 WI App 198
    (Also reported in 617 N.W.2d 862.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William S. Coleman, Jr., assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.
    Before Wedemeyer, P.J., Schudson and Curley, JJ.

      Petition to review granted.

   CURLEY, J.

¶ 1. Tronnie M. Dismuke appeals the judgment of conviction assessing court costs against him of $957.20. He also appeals the denial of his postconviction motion requesting vacation of the assessment, as well as the denial of his motion for reconsideration. Dismuke argues that the trial court erred in ordering him to pay fees and travel costs generated by the service of numerous orders to produce him from prison for his court appearances. He contends that these costs are not authorized by WiS. Stat. § 973.06, and, further, that assessing these types of costs against him violates his constitutional rights to due process and equal protection. We affirm, determining that § 973.06 permits the assessment of costs for the service of an order to produce and the attendant travel fees, and that Dismuke's constitutional rights were not violated.

I. Background.

¶ 2. Dismuke was charged on June 12,1996, with one count of armed robbery, and one count of felon in possession of a firearm. A year and a half later, he pled guilty to the armed robbery charge, and the other charge was dismissed and "read-in" for sentencing purposes. At his sentencing hearing, the trial court sentenced Dismuke to fifteen years in prison, consecutive to a sentence he was serving. Pertinent to this appeal, the trial court also imposed "applicable costs" on Dismuke.

¶ 3. The circuit court clerk, in response to the court's directive, determined that Dismuke was responsible for $957.20 for costs, most of which was attributable to the orders to produce. All the orders to produce were signed by a court commissioner. The orders directed the warden to release Dismuke into the custody of the Milwaukee County Deputy Sheriffs, who transported Dismuke from Waupun to Milwaukee for his court proceedings and back to Waupun at the conclusion of his case. On the back of each order to produce, save one, the deputy sheriff who transported Dismuke entered a dollar figure for both travel and service of the order.

¶ 4. Dismuke filed a postconviction motion seeking a reduction in the costs. Dismuke's motion was based upon information his attorney received from personnel in the felony division of the Clerk of Court for Milwaukee County and personnel in the Milwaukee County Sheriffs Department. The trial court set a briefing schedule and also invited the Clerk of Court and the District Attorney to file briefs. In response, an accountant for the Clerk of Courts submitted a letter to the trial court. A letter brief on behalf of the Sheriffs Department was submitted by corporation counsel.

¶ 5. In a written decision, the trial court denied Dismuke's postconviction motion and ruled that WlS. Stat. § 973.06(l)(a) authorized the trial court to assess these costs against a defendant. In addition, the trial court ordered that the judgment be amended to read $1512.40, the actual fees reflected in the orders to produce found in the record. Dismuke filed a motion for reconsideration. He argued that the trial court's decision should be rescinded because it was received before the deadline set for Dismuke's reply brief, in which Dismuke asked for an evidentiary hearing. Further, Dismuke objected to the amended judgment, claiming that it was amended without notice and without any itemization of the fees. The trial court denied the motion for reconsideration without holding an eviden-tiary hearing, but it vacated its amended order requiring Dismuke to pay the higher amount.

II. Analysis.

¶ 6. Dismuke contends that the trial court erred in determining that Wis. Stat. § 973.06 authorizes the costs assessed against him. The issue of whether the trial court had authority to order the payment of costs under § 973.06 is a question of law that we decide without deference to the trial court. See State v. Bender, 213 Wis. 2d 338, 341, 570 N.W.2d 590 (Ct. App. 1997).

A. The Sheriffs Department service fee and travel costs are proper costs.

¶ 7. Dismuke claims that the trial court's order requiring the payment of certain costs should be vacated. Although acknowledging that Wis. Stat. § 973.06 permits the taxing of costs to a defendant when "[t]he necessary disbursements and fees of officers [are] allowed by law," Dismuke, relying on State v. Ferguson, 202 Wis. 2d 233, 238 — 39, 549 N.W.2d 718 (1996), first argues that the sheriff has not assessed any "fees" or made any "disbursements." In Ferguson, the supreme court held that "to constitute a fee . . . [the cost] must be chargeable and payable by another." Id. at 242. Dismuke contends that, according to the information supplied to his attorney by the Sheriff s Department, the sheriff neither billed anyone nor cross-charged anyone for the service of any of the orders to produce him from prison or the resulting travel expenses. Thus, according to Dismuke, the fees for the orders to produce do not fall within the permissible fees allowed by the statute because they are not "chargeable and payable by another." Second, he submits that the statute's failure to specifically authorize intrastate travel expenses for transporting a defendant to court is proof that the legislature did not intend these costs to be charged to him. He states that this lack of intent can be derived from the fact that the statute does expressly authorize the taxing of costs for travel expenses associated with the transport of a defendant "from another state or country." Next, he argues that the fees caused by the service of the orders to produce on the warden were neither "necessary," nor do they qualify as "service of process" under WlS. Stat. § 814.70. Finally, he contends he could not be charged for these fees and costs because the State did not prove that he was the sole prisoner escorted by the sheriff when the order to produce was served on the warden.

¶ 8. We determine that the sheriffs fees for serving an order to produce and travel costs are "necessary disbursements and fees of officers" under WlS. STAT. § 973.06(l)(a) because: (1) the Sheriffs Department's actions of calculating the fees owed and placing the order to produce in the file make the fee "chargeable to and payable by another" and the service of an order to produce falls within the category of fees that the sheriff is mandated to collect under WlS. Stat. § 814.705; (2) the obvious intent of the language found in § 973.06(l)(a), stating that "[disbursements and fees] including, in the discretion of the court, the fees and disbursements of the agent appointed to return a defendant from another state or country," was intended to enlarge the scope of fees that a defendant can be ordered to pay, not narrow it, as Dismuke argues, and thus, the intrastate service and travel fees are implicitly authorized under the statue; (3) the service of an order to produce is both "necessary" and a "service of process" because the very essence of an order to produce requires the sheriff to serve the warden in order to secure custody of the prisoner and transport the prisoner to court, and the travel fees are appropriate because Wis. Stat. § 814.70(4)(b) permits the sheriff to charge a fee for travel; and (4) the taxing of costs and travel fees for the service of orders to produce are proper even if multiple orders to produce are served at the same time and several prisoners are transported in the same vehicle.

¶ 9. As noted, the costs listed in Wis. Stat. § 973.06 are the only costs that can be taxed against a defendant. See Ferguson, 202 Wis. 2d at 238 ("By its plain language, then, the costs taxable against a defendant under § 973.06(l)(c) are limited to the items enumerated therein."). Section 973.06(l)(a) provides:

(1) Except as provided in [Wis. STAT. § 93.20], the costs taxable against the defendant shall consist of the following items and no others:
(a) The necessary disbursements and fees of officers allowed by law and incurred in connection with the arrest, preliminary examination and trial of the defendant, including, in the discretion of the court, the fees and disbursements of the agent appointed to return a defendant from another state or country.

Dismuke argues that the definitions of the words "fee" and "disbursement" found in Ferguson prevent the trial court from assessing costs for service of an order to produce. We disagree. First, Ferguson was discussing § 973.06(l)(c), a subsection dealing with expert witnesses fees, not § 973.06(l)(a). Specifically, the court asserted:

The word "fees" in § 973.06(l)(c) describes a fixed charge for a professional service rendered by an expert witness, a stun which is ordinarily charged to and payable by another. The word "disbursements" . . . describes those incidental and out-of-pocket expenses which an expert witness may incur in the course of providing professional services; again, such out-of-pocket expenses are ordinarily charged to and payable to another.

Ferguson, 202 Wis. 2d at 241. In our view, Ferguson provides little support for Dismuke's position since the supreme court found only that § 973.06(l)(c) did not permit the assessment of costs for state expert witness fees in drug cases. Ferguson does not discuss the taxable costs and fees for officers found in § 973.06(l)(a), nor does it mention WlS. STAT. § 814.70. Thus, the definitions found in Ferguson do not concern themselves with the disputed issue here — whether fees assessed by the Sheriffs Department are taxable to Dismuke.

¶ 10. Second, assuming arguendo that Ferguson's definitions are relevant to the issues posed here, the definition of "fees" found in Ferguson has been met. Ferguson defines the word "fee" in WlS. STAT. § 973.06(l)(c) as connoting a "fixed charge" that is "chargeable to and payable by another." Ferguson, 202 Wis. 2d at 234. Dismuke submits, relying on hearsay information provided to his attorney, that since the Sheriffs Department never billed or cross-charged anyone for the costs associated with the service of the orders to produce him from prison, these costs fall outside of the statute.

¶ 11. As noted, the hearsay information relied upon by Dismuke is later refuted in a letter brief filed by an accountant for the Clerk of Courts. Moreover, evidence rebutting his claim that the orders were never "charged to and payable by another" is found in the record. Eight separate orders to produce Dismuke are in the record. On the back of every order to produce, a pre-printed box contains the statement, "This section for Sheriffs Department use only." In the box are blank spaces for the entry of a dollar amount for "Service," "Travel," "Attendance" and "TOTAL FEES." On the back of all the orders, monetary amounts are listed. The entry of dollar amounts and the totaling of those amounts on the line reading "TOTAL FEES" strongly suggests that the Sheriffs Department intended to charge the fees and, thus, they became "payable by another." Further evidence that the charges would be "payable by another" comes from the fact that the orders were not only filled out by Sheriffs Department personnel, but also that the Sheriffs Department personnel filed them in Dismuke's court file, presumably in anticipation that Dismuke would be ordered to pay them. Thus, we are satisfied that orders to produce fall within the Ferguson definition of fees as they were "charged to and payable by another." Consequently, whether the Sheriffs Department bills or cross-charges another agency for them is irrelevant to our analysis.

¶ 12. More important to our determination that the costs generated by an order to produce are taxable to Dismuke is WlS. STAT § 814.70, which mandates that the sheriff collect certain fees. Sections 814.70(1) and 814.70(4) direct the sheriff to collect fees for the service and travel associated with an order to produce.

¶ 13. Wisconsin Stat. § 814.70(1) commands that the sheriff collect fees for service of "a summons, or any other process for commencement of an action, a writ, an order for injunction, a subpoena or any other order." An order to produce is an order, and thus, the phrase "any other order" encompasses an order to produce. Inasmuch as the orders to produce were generated out of the criminal court, they are criminal processes and the recoupment of travel fees for the service of an order to produce falls squarely within the directive of § 814.70(4)(b). Thus, § 814.70(1) obligates the sheriff to charge for the service of an order to produce, and § 814.70(4)(b) likewise obligates the sheriff to assess costs for "travel in serving criminal process." Consequently, pursuant to § 814.70, orders to produce become "necessary disbursements and fees of officers allowed by law" under Wis. Stat. § 973.06(l)(a) for travel costs.

¶ 14. Dismuke next contends that the statutory language found in Wis. Stat. § 973.06(l)(a), that "[fees and disbursements consist of] the fees and disbursements of the agent appointed to return a defendant from another state or country" excludes the taxing of fees and disbursements for a. defendant who is returned from a location within Wisconsin. He argues that because the statute makes no mention of fees and disbursements for the return of a defendant intrastate, that the legislature intended to exclude them. We disagree.

¶ 15. The lodestar of statutory interpretation is discerning the intent of the legislature. See Milwaukee County v. DILHR, 80 Wis. 2d 445, 451, 259 N.W.2d 118 (1977). In looking for legislative intent we start with the language of the statute. See Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68 (1992). Giving the language found in Wis. Stat. § 973.06(l)(a) its ordinary and logical meaning, we observe that the statue expands rather than narrows the type of costs that can be assessed against a defendant. Our interpretation of the phrase highlighted by Dismuke, in the context of the entire statute, indicates that the legislature intended to broaden the type of taxable costs payable under the statute. Thus, the language found in § 973.06(l)(a) — "The necessary disbursements and fees of officers allowed by law and incurred in connection with the arrest, preliminary examination and trial of the defendant, including, in the discretion of the court, the fees and disbursements of the agent appointed to return a defendant from another state or country" — signals that fees and disbursements for out-of-state costs are in addition to the fees and costs associated with returning a defendant from a location within Wisconsin.

¶ 16. Case law also supports our interpretation. In State v Evans, 171 Wis. 2d 471, 480, 492 N.W.2d 141 (1992), the supreme court held that the use of the word "includes" generally indicates a type of expansion. "[The statute] uses the verb 'includes,' which is normally a term of enlargement rather than limitation." Id. Here, the statute uses the term "including." Thus, we determine that both the language of the statute itself and case law support a conclusion that the legislature intended to enlarge the scope of taxable costs beyond intrastate travel costs to include the out-of-state travel fees associated with the return of a defendant. Consequently, we determine that the statute implicitly permits the taxing of intrastate travel costs.

¶ 17. Next, Dismuke maintains that the taxing of a service fee and travel costs associated with the service of an order to produce was improper because an order to produce is not "service of process" under Wis. Stat. § 814.70(1), and the travel expenses associated with the service of the order to produce are unnecessary and unjustified because the sheriff could have easily mailed the order to produce to the warden.

¶ 18. Dismuke contends that an order to produce is "a mere mechanism that authorizes the warden to release the prisoner." We disagree. As noted, Wis. Stat. § 814.70(1) authorizes the sheriff to charge for the service of "any other order," and an order to produce is a qualified order. Further, the essence of an order to produce is to order the warden to release the prisoner to a law enforcement officer for transport to court and back again. An order to produce is not a "mere mechanism," but rather, it is the order relieving the warden of responsibility for the prisoner in his custody and authorizing the warden to temporarily release the prisoner to another agency for the express purpose of transporting the prisoner to pending court proceedings. Further, under these circumstances, it would be illogical to mail the service of an order to a warden when a sheriffs deputy is required to effectuate the court's order.

¶ 19. Finally, Dismuke submits that he should only be charged for the service of an order to produce and the travel fees associated with it if the order to produce was served individually and he was the sole passenger in the sheriffs vehicle. Dismuke contends that he should not be assessed the costs of orders to produce when he was transported with other prisoners. Dismuke relies on language in Wis. Stat. § 814.70(3)(b) for his argument.

¶ 20. Wisconsin Stat. § 814.70(3) provides:

(3) TRAVEL; civil PROCESS. For travel in serving any summons, writ or other process, except criminal warrants, and except that a fee under this subsection in any action commenced under [WlS. STAT. § 813.12] may not be collected from a petitioner but shall be collected from the respondent if he or she is convicted of violating a temporary restraining order or injunction issued under [§813.12 (3) or (4)]:
(b) In counties having a population of 500,000 or more, $4 for each party to be served in each action. Only one charge may he imposed if there is more than one person to be served at a given address.

Contrary to Dismuke's argument, we see nothing in § 814.70(4)(b) that limits the sheriff from requesting fees for the service of multiple orders to produce, nor does the statute require recoupment for travel fees only when the prisoner is the single passenger. Obviously the legislature restricted the collectable fees for service of civil process in § 814.70(3)(b) to one fee per household, but it made no similar restriction in § 814.70(4) regulating the service of criminal process.

¶ 21. In sum, we are not persuaded by any of Dismuke's arguments and we are satisfied that fees and travel costs for orders to produce are authorized under Wis. Stat. § 973.06(l)(a).

B. The taxation of costs in connection with the service of an order to produce does not violate Dismuke's constitutional rights.

¶ 22. Dismuke next contends that if this court determines the order to produce costs fall within Wis. Stat. § 973.06, the statute is unconstitutional as applied to him. He submits that his constitutional rights to equal protection and due process were violated by the assessment of costs associated with the service of the orders to produce him from prison. Dis-muke first argues that he has been denied equal protection because other "similarly situated defendants" with charges pending in Milwaukee County were not assessed the fees sought here. Dismuke asserts that an equal protection violation occurred when he was required to pay fees which arose out of the fact that he was in state custody when others in county custody were not also assessed. He also claims that he was denied due process because several court dates had to be adjourned through no fault of his, and he posits that it is "fundamentally unfair" to require him to pay the costs. Dismuke is wrong.

¶ 23. The applicable standard of review this court must apply in resolving the merits of his contention is set forth in State v. Borhegyi, 222 Wis. 2d 506, 508-09, 588 N.W.2d 89 (Ct. App. 1998):

In reviewing constitutional questions, the trial court's findings of historical facts are subject to the clearly erroneous standard, but the application of those facts to constitutional standards and principles is determined without deference to the trial court's conclusion.

Here, the trial court did not make any findings of fact concerning the constitutional issues Dismuke raises. Thus, this court must review the record and independently determine whether the facts lead to a constitutional violation. As the supreme court recently observed in Czapinski v. St. Francis Hospital, 2000 WI 80 ¶ 27, 236 Wis. 2d 316, 613 N.W.2d 120:

This court starts with the presumption that a statute is constitutional and will continue to preserve a statute's constitutionality if there is a reasonable basis for the exercise of legislative power.

(Citation omitted.)

¶ 24. Dismuke's first constitutional argument is based on the Equal Protection Clause of the Wisconsin Constitution. "The guarantees of equal protection in the United States and Wisconsin Constitutions require that persons similarly situated be accorded similar treatment," State v. Avila, 192 Wis. 2d 870, 879-80, 532 N.W.2d 423 (1995) (footnote omitted). "This court will uphold a statute under an equal protection analysis '[i]f a rational basis exists to support the classification, unless the statute impinges on a fundamental right or creates a classification based on a suspect criterion.'" Czapinski, 2000 WI 80 at ¶ 27 (citation omitted). "The Petitioners must prove that the statute is unconstitutional beyond a reasonable doubt." Id.

¶ 25, Dismuke claims that his constitutional right to equal protection was violated, and he cites Wisconsin Evangelical Lutheran Synod v. City of Prairie du Chien, 125 Wis. 2d 541, 373 N.W.2d 78 (Ct. App. 1985), for support. The Wisconsin Evangelical Lutheran Synod case held that "[e]qual protection is denied where ... [a] statute is administered with an unequal hand so as to make an illegal discrimination between persons similarly situated." Id. at 552. Applying this test, Dismuke argues that there was a violation because not all "similarly situated defendants" to him were treated equally. Specifically, he submits that requiring him to pay the cost of an order to produce while in state custody, when similarly situated defendants in county custody are not assessed these fees, is a violation. We disagree.

¶ 26. First, we note that Dismuke casts his net too wide in arguing that persons facing charges in county custody are "similarly situated defendants" to him. Defendants awaiting trial who are in state custody are not similarly situated to those defendants who are in county custody. A person awaiting trial who is not in state custody may be released on bail or may be released without having to post any bail. Further, those persons in county custody not released on bail are held in the Milwaukee County Jail. The Milwaukee County Sheriff s Department oversees the County Jail, obviating the need for an order to produce. On the other hand, Dismuke and others in state custody awaiting trial are lodged in a state facility and an order to produce is required because they are in the custody of the Department of Corrections. Consequently, any discussion concerning those in county custody as "similarly situated defendants" is inaccurate.

¶ 27. Moreover, were we to consider all persons awaiting trial to be "similarly situated" to Dismuke, a rational basis exists for disparate treatment. The costs of serving an order to produce and transporting a prisoner from elsewhere, are considerably higher than the costs of transporting a prisoner in county custody who is in the county jail. Consequently, Dismuke's equal protection argument fails. Further, he has submitted no proof, as he is obligated to do, that those who are similarly situated — those in state custody awaiting a trial in a criminal matter — have been treated differently.

¶ 28. Next, Dismuke argues that his due process rights were violated. He contends that by assessing the " 'costs' of transport and service of the orders to produce for dates in which the trial was adjourned through no fault or action of [his own]" is "fundamentally unfair and a violation of due process." We disagree.

¶29. Substantive due process prohibits a state "from engaging in conduct that 'shocks the conscience,' or interferes with rights 'implicit in the concept of ordered liberty.'" United States v. Salerno, 481 U.S. 739, 746 (1987) (citations omitted). Here, Dismuke has failed to show how charging him with the costs associated with his transportation for proceedings that were ultimately adjourned for reasons not of Dismuke's making "shocks the conscience" or "interferes with rights 'implicit in the concept of ordered liberty.'" A trial court order that he pay all the costs associated with the service of the orders to produce him from the state institution where he was confined to the courtroom does not "shock the conscience" nor does it interfere with his rights. In this matter, Dismuke was in state prison because he was found guilty of a crime. His actions brought about the additional costs. His confinement was a direct result of his unlawful conduct and, thus, it cannot be argued that he played no part in the generation of the costs to transport him. Consequently, the fact that he may not have caused any particular adjournment does not relieve him of the burden of paying for these "necessary costs."

¶ 30. In sum, we conclude that both the service charge for an order to produce and the travel costs associated with it are "necessary disbursements and fees of officers allowed by law" under WlS. STAT. §973.06 and they were properly charged against Dis-muke. Further, § 973.06 does not violate Dismuke's constitutional rights.

By the Court. — Judgment and orders affirmed.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The record reveals eight orders to produce Dismuke. Seven of them reflect a travel and service charge totaling $213.20. One of them reflects only a service charge of $20. These amounts total $1512.40, not $957.20. The record is silent as to the cause of this mathematical error. We also note that the amounts reflected in the orders exceed the permissible fees set forth in Wis. STAT. § 814.70(4). We assume that, pursuant to Wis. Stat. § 814.705, the Milwaukee County Board set a higher fee. In any event, the formula used in calculating the fees is not in dispute and, therefore, we need not resolve the discrepancy.

       This case appears to have been plagued from the start with misinformation. Dismuke's postconviction motion was based on information supplied to his attorney by a clerk in the Sheriffs Department who claimed that the Sheriffs Department only charged a fee (by cross-charging another agency) for the service of an order to produce when the defendant was indigent. Corporation counsel also filed a brief containing inaccurate information. More correct information was supplied later by an accountant for the clerk's office who indicated that information given to Dismuke's attorney, as well as information contained in the corporation counsel's brief, was not entirely accurate. We also note that the brief filed by corporation counsel was of little assistance to the trial court in resolving the dispute as it contained no legal analysis, nor did it refer to any applicable statutes.

       Although the trial court refers to a written response from the District Attorney in its decision, nothing in the record can be found from the District Attorney addressing this issue.

       Unlike State v. Ferguson, 202 Wis. 2d 233, 549 N.W.2d 718 (1996), which dealt with the assessment of fees for expert witnesses, here, the breadth of WlS. STAT. § 973.06(l)(a) is in dispute.

       Wisconsin Stat. § 973.06 has been amended since Ferguson was decided. It now permits the assessment of:
      (am) Moneys expended by a law enforcement agency under all of the following conditions:
      1. The agency expended the moneys to purchase a controlled substance or controlled substance analog that was distributed in violation of ch. 961.
      2. The moneys were expended in the course of an investigation that resulted in the defendant's conviction.
      3. The moneys were used to obtain evidence of the defendant's violation of the law.

        4. The agency has not previously been reimbursed or repaid for the expended moneys by the defendant.

       Dismuke has argued that the definition of disbursement found in Ferguson has not been met. The State concedes that WlS. Stat. § 814.70(4m)(c) provides no authority for the fees and travel charges involved here. Consequently, the meaning of "disbursement" is unnecessary to our analysis.

       Wisconsin Stat. §814.70(1) provides:
      Fees of sheriffs. The sheriff shall collect the fees under this section. The fees are set as follows, unless a higher fee is established under [WlS. STAT. § 814.705]:
      (1) Service of PROCESS. For each service or attempted service of a summons or any other process for commencement of an action, a writ, an order of injunction, a subpoena or any other order, $12 for each defendant or person. If there is more than one defendant or person to be served at a given address, $6 for each additional defendant or person. No fee charged under this subsection in any action commenced under [WlS. STAT. § 813.12] may be collected from a petitioner under [§ 813.12], The fee charged under this subsection in any action commenced under [§ 813.12] shall be collected from the respondent under [§ 813.12] if he or she is convicted

        of violating a temporary restraining order or injunction issued under [§813.12 (3) or (4)].
      Wisconsin Stat. § 814.70(4) provides:
      (4) TRAVEL; CRIMINAL PROCESS. For travel in serving any criminal process:
      (a) In counties having a population of less than 500,000, 25 cents per mile.
      (b) In counties having a population of 500,000 or more, $4 for each person served within the county from which process issued, or 25 cents per mile if served outside the county.
      (c) The actual and necessary disbursements for board and conveyance of the prisoner.

       Dismuke also argues that he was treated differently than other prisoners, based on the statements made in the brief filed by corporation counsel that the Sheriff s Department ordinarily does not cross-charge another agency for orders to produce. As noted, the information provided by corporation counsel in its brief was corrected by the accountant for the Milwaukee County Clerk of Courts and the trial court accepted the accountant's statements over those of the Sheriffs Department employees. In any event, the circumstances in which the Sheriff s Department cross-charges another agency for the cost of serving orders to produce and related travel are of no consequence to the resolution of whether assessing these costs to Dismuke is unconstitutional.

       Dismuke correctly notes:

        "[T]he due process and equal protection clauses of the Wisconsin Constitution are the substantial equivalents of their respective clauses in the federal constitution. The Due Process Clause of the Fifth Amendment includes a guarantee of equal protection parallel to that in the Fourteenth Amendment."
      (Citations omitted.)

       Dismuke also contends that the information provided in the brief filed by the corporation counsel indicates he was charged these fees through mistake or oversight, and thus, his due process rights were violated. As previously noted, we have adopted the trial court's conclusion that the information supplied by the corporation counsel in its brief was incorrect. Without it, Dismuke has not met his burden of proving a due process violation beyond a reasonable doubt.