author: NETTESHEIM, J.

text:
    Dona J. Fabyan, Plaintiff-Appellant, v. Waukesha County Board of Adjustment, John Selix and Nancy Bonniwell, Defendants-Respondents.
    Court of Appeals

      No. 00-3103.

      Submitted on briefs May 23, 2001.

    Decided June 20, 2001.

    2001 WI App 162
    (Also reported in 632 N.W.2d 116.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of August E. Fabyan of Haight & Fabyan of Hartland.

      On behalf of the defendants-respondents, the cause was submitted on the brief of William J. Domina, principal assistant corporation counsel.
    Before Brown, P. J., Nettesheim and Anderson, JJ.

      Petition to review denied.

   NETTESHEIM, J.

¶ 1. Dona J. Fabyan appeals from a circuit court order upholding the grant of a special exception to the floor area ratio (FAR) requirements of the Waukesha County Shoreland and Floodland Protection Ordinance to John Selix and Nancy Bonniwell (the owners) by the Waukesha County Board of Adjustment. Fabyan argues that the Board acted under an incorrect theory of the law in that the grant of the special exception was actually a disguised grant of a variance pursuant to Wis. Stat. § 59.694(7)(c) (1999-2000). Treating the grant as a variance, Fabyan then argues that the owners failed to demonstrate unnecessary hardship as required by the statute and State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998). We disagree. We hold that the owners' request was properly presented as one for a special exception. Since the shoreland ordinance expressly recognizes special exceptions as authorized by § 59.694(7)(d), we conclude that the Board acted upon a correct theory of the law.

FACTS AND PROCEDURAL HISTORY

¶ 2. The owners live in a home on Pewaukee Lake in the Town of Delafield, Waukesha County. Their property is governed by the shoreland ordinance. Fabyan also lives in the town, residing across the lake from the owners. The dispute in this case concerns an accessory garage building that the owners proposed to construct when they built their home.

¶ 3. The history of this case is reflected in the three proceedings before the Board and the ensuing judicial review proceedings of each proceeding brought by Fabyan.

¶ 4. First Proceeding: On November 24,1997, the Board approved the owners' request to construct a two-story, detached garage on their property. The approval included the grant of a FAR variance of 4.2%, which exceeded the 3% FAR recited in the shoreland ordinance. As a condition of the approval, the owners were required to remove an existing nonconforming garage.

¶ 5. Fabyan sought certiorari judicial review of the Board's action. The case was assigned to Jefferson County Circuit Judge Jacqueline Erwin. Following a hearing, Judge Erwin determined that the evidence supported the Board's determination that the FAR requirement created an unnecessary hardship for the owners. However, Judge Erwin further determined that "the degree of variance requires review." Accordingly, the judge remanded the matter to the Board for further consideration of this question.

¶ 6. Second Proceeding: The Board conducted the remand proceeding on February 10, 1999. The Board did not take further evidence, but it did receive memorandum from the owners and Fabyan. In their memorandum, the owners clarified that they were seeking a special exception, not a variance, to the FAR requirements of the shoreland ordinance. Fabyan argued that the special exception was nothing more than a disguised request for a variance. In its decision, the Board granted the special exception stating, in part, "The size of the garage does not require a variance from the County, only a special exception from the Ordinance which does not require the petitioner to show a hardship."

¶ 7. Fabyan followed with a second certiorari action. This matter was assigned to Jefferson County Circuit Judge William Hue. In a written decision, Judge Hue determined that the evidence supported the Board's decision to grant the special exception. However, Judge Hue also ruled that the owners' request had not been properly noticed as a special exception request. Thus, the matter was again remanded for a further hearing following proper notice.

¶ 8. Third Proceeding: After giving proper notice, the Board conducted the further remand proceeding on January 26,2000. At this hearing, both the owners and Fabyan spoke to the issue. Unlike the previous proceedings, the appellate record includes a transcript of this proceeding, including the Board's deliberations. This transcript and the Board's findings of fact shed further light on the reason for the owners' FAR special exception request. The owners' property has a severe downward slope from the road towards the lake. As a result, the proposed garage would require a foundation wall on the lakeside of the property to support the upper parking area, resulting in a two-tiered structure. If the excavated lower portion of the structure were filled with dirt, the area would not count against the FAR and the structure would comply with the FAR requirements. However, the owners proposed to use this lower portion for storage. As such, it would count against the FAR and would exceed the FAR requirements of the ordinance. Thus, the owners sought a FAR special exception.

¶ 9. The Board confirmed its prior grant of the FAR special exception. Among other findings of fact, the Board noted:

The lower level of the garage will exist with or without a [FAR] special exception. With a special exception, the lower level will be excavated, finished with a concrete floor, and used for storage area. Without a special exception, the lower level will be filled with the original foundation dirt and added fill.
The footprint, appearance and exterior dimensions of the garage will be the same whether or not a floor area special exception is granted.
The use of the lower level for storage purposes will allow a productive and functional use of building space that would otherwise be unavailable and of no practical use.

¶ 10. Fabyan followed with this third certiorari action, again contending that the Board's grant of the FAR special exception was actually the grant of a variance which failed to meet the unnecessary hardship requirements of WlS. Stat. § 56.694(7)(c) and Kenosha County . In a bench decision, Judge Hue confirmed his prior ruling upholding the Board's grant of the FAR special exception. Fabyan appeals.

DISCUSSION

1. Certiorari Review and Standard of Review

¶ 11. On certiorari review of a board of adjustment determination, we inquire (1) whether the board kept within its jurisdiction; (2) whether the board proceeded on a correct theory of law; (3) whether the board's action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question, based on the evidence. Kenosha County, 218 Wis. 2d at 410-11.

¶ 12. Generally, we accord a presumption of correctness and validity to a determination by a board of adjustment and in matters of discretion we may not substitute our discretion for that committed to the board. Id. at 415. However, Fabyan's threshold argument is that the Board proceeded upon an incorrect theory of the law by applying the law of special exceptions rather than the law of variances. To answer this issue, we must interpret the various provisions of the statutes and the shoreland zoning ordinance. That exercise presents us with a question of law that we review de novo. See University of Wisconsin v. Dane County, 2000 WI App 211 ¶¶ 10-11, 238 Wis. 2d 810, 818-19, 618 N.W.2d 537.

2. Variances and Special Exception

¶ 13. Fabyan does not argue that the evidence does not satisfy the special exception provisions of the shoreland zoning ordinance. Rather, she contends that the Board's grant of the FAR special exception is really a camouflaged grant of a variance. As such, Fabyan further contends that the evidence does not satisfy the "unnecessary hardship" requirement of variance law as set out in Wis. Stat. § 59.694(7)(c). Unnecessary hardship tests whether the owner has a feasible use of the property without the variance. Kenosha County, 218 Wis. 2d at 413.

¶ 14. No reported Wisconsin case has directly compared a variance with a special exception. And commentators have noted that both zoning agencies and the courts have sometimes blurred the distinction between the two concepts:

From the discussion of special exceptions in the foregoing sections, it must become obvious that an exception differs from a variance, though many do not readily recognize the distinction. This is easily understandable, for many zoning boards not only treat the definitions of the two as synonymous, but act accordingly.

Yokley, Zoning Law and Practice, § 20-4 at 254 (4th edition).

While the courts occasionally have blurred the distinction between the forms of administrative relief, the basic differences between variances and special exceptions or special permits, developed in early litigation under the original New York City ordinance, have been maintained.

Anderson, American Law of Zoning, § 20.03 at 416 (4th edition) (footnote omitted).

¶ 15. The concept of special exceptions grew out of the rigid and difficult barriers presented by the unnecessary hardship test associated with the law of variances. One commentator has stated:

The "special exception," the "special permit," and the use permitted subject to administrative approval, are qualitatively the same. Each involves a use which is permitted rather than proscribed by the zoning regulations. Each is allowed only upon approval of a board of adjustment or other administrative body charged with various duties and invested with certain powers in connection with the administration of the zoning regulations....
Special-permit procedures are a product of the need for flexibility in the administration of the zoning regulations, a need which was felt at a very early date. The provision for administrative variance provided relief in specific instances of practical difficulties and unnecessary hardship, but variance procedures were incapable of converting an essentially rigid system of Euclidian zoning into a flexible tool for the accommodation of unlike and sometimes incompatible uses of land.

Id. at 21.01, 692-93 (footnotes omitted).

¶ 16. This same commentator has noted the distinction between a variance and a special exception:

The decisive difference between these forms of relief is that a variance is "authority extended to a property owner to use his property in a manner forbidden by the zoning enactment," while an exception "allows him to put his property to a use which enactment expressly permits."
A variance authorizes a landowner to establish or maintain a use which is prohibited by the zoning regulations. A special permit authorizes a use which is permitted by the zoning regulations, subject to the issuance of such a permit. Thus, a variance results in a deviation from the literal import of the ordinance; a special permit results in the establishment or maintenance of a use in the location and under the circumstances mandated by the ordinance.

Id. at 20.03 at 416 and 21.02 at 695.

¶ 17. These distinctions are reflected in the definitions of "special exception" and "variance" as set out in the shoreland zoning ordinance:

Special exception: A special or unique situation, excluding a change in use or a use prohibited in a zoning district, which may be authorized by the board of adjustment and is specifically set forth in the ordinance as a special exception and which may justify the waiver of the regulations applicable thereto and does not necessarily require the demonstration of an unnecessary hardship or practical difficulty.
Variance: An authorization granted by the board of adjustment to construct or alter a building, land or structure in a manner that deviates from the dimensional or numerical standards of this ordinance. The issuance of a variance shall not have the effect of allowing a use of property otherwise prohibited and shall not allow the intensification of a use which would otherwise not be allowed other property having a similar condition or situation. Such variance may not allow for a use which is not allowed in the Zoning District in which the property is located.

Waukesha County Shoreland, Floodland Protection Ordinance, § 2.02 (66a) and (83a) (emphasis added).

¶ 18. In this case, the owners' desire to use the lower portion of their garage structure for storage was not a prohibited use under the applicable zoning. Therefore, the owners did not need a variance. Instead, the owners' proposed use merely conflicted with the FAR requirements of the ordinance. As such, the proper avenue of relief was by special exception. To that end, the owners properly invoked the special exception procedure. The enabling legislation for such a procedure is Wis. Stat. § 59.694(7)(b), which authorizes the Board to "hear and decide special exceptions to the terms of the ordinance...." In turn, § 3.10(4)4 of the shoreland zoning ordinance implements this procedure by allowing for a special exception to the FAR requirement. This ordinance provides, in relevant part:

When a petitioner is proposing to have more square footage of accessory buildings than the 3% limit allows or as excepted above, the Board of Adjustment may grant a Special Exception to the above requirement in accordance with the procedure as outlined in Section 19 of this Ordinance....

Waukesha County Shoreland, Floodland Protection Ordinance, § 3.10(4)4 (emphasis added).

¶ 19. Since the owners properly invoked the special exception procedure authorized by the statutes and implemented by the shoreland zoning ordinance, the Board proceeded under a correct theory of the law.

By the Court. — Order affirmed.

      Fabyan's appeal also challenges an earlier circuit court ruling upholding the Board's grant of a set-back variance to the owners. However, we have previously ruled that we do not have jurisdiction over this issue since Fabyan did not timely appeal that ruling.

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

      Fabyan's husband, who is an attorney, joined as a petitioner in this first certiorari action, and he represented himself and his wife in this proceeding.

       The owners' brief advises that all members of the Wauke-sha County judiciary recused themselves from this case. Thus, the action was assigned to Judge Erwin.

       Judge Erwin's decision states that the matter was remanded to both the Waukesha County Board of Adjustment and the Town of Delafield Board of Zoning Appeals. However, the appellate record and the parties' briefs refer only to a remand proceeding before the County Board of Adjustment.

      Fabyan's husband did not join in this action as a copeti-tioner, but he did represent his wife in the proceeding.

       As a result of this condition, the owners also required a variance from the set-back requirements of the shoreland zoning ordinance in order to satisfy the driveway slope requirements of the town of Delafield ordinances. As noted, the Board granted this variance. (See footnote 1).

       As with the second action, Fabyan's husband was not a petitioner in this action. However, Fabyan's husband again represented his wife and he continues that representation on appeal.

       Fabyan sues as a "private attorney general in defense of the rights of the public." See State ex rel. Hodge v. Turtle Lake, 180 Wis. 2d 62, 76-80, 508 N.W.2d 603 (1977). The owners dispute Fabyan's right to claim such status under the facts of this case even if she prevails. Since we affirm the trial court's ruling against Fabyan, we need not address this issue.

       The Board relies, in part, on State ex rel. Skelly Oil Co. v. Common Council, 58 Wis. 2d 695, 207 N.W.2d 585 (1973), where the supreme court equated a conditional use with a special exception use and then explained the difference between a conditional use and a variance. We do not find Skelly helpful to this case because here the shoreland zoning ordinance separately defines "conditional use" and "special exception".

       Since we hold that the Board correctly assessed the owners' request under the law of special exceptions, we need not address Fabyan's further argument that the evidence does not show the requisite unnecessary hardship as required by the law of variances.


source: Caselaw Access Project

author: SCHUDSON, J.

license: Public Domain

text:
    James A. Rehrauer, James D. Prestidge, Glenn W. Schneeberg, Roger L. O’Brien and Glen A. Dickau, Plaintiffs-Appellants, Cornelius Mirr, Joseph C. Kulakowski, Thomas L. Piorier, George Wickboldt, James Karbouski, Edwin C. Raasch, Donald C. Rode, Daniel A. Zaharias, Lyle A. Lance, Michael R. Horbinski, Sr., Robert L. Singer, Thaddeus J. Golos, Ervin Pieterzak, Walter R. Radke, James H. Radke, Lawrence W. Lee, Thomas A. Davey, Jr., Daniel D. Tetzlaff, Noel E. Nogalski and Donald J. Pluta, Plaintiffs, v. City of Milwaukee and Milwaukee Employes’ Retirement System Annuity and Pension Board, Defendants-Respondents.
    Court of Appeals

      No. 00-2090.

      Submitted on briefs April 4, 2001.

    Decided June 26, 2001.

    2001 WI App 151
    (Also reported in 631 N.W.2d 644.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Donald Roy Fraker of Fraker Law Firm, S.C., ofMequon.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Grant F. Langley, city attorney, and Ellen H. Tangen, assistant city attorney, of Milwaukee.
    Before Wedemeyer, P.J., Schudson and Curley, JJ.
   SCHUDSON, J.

¶1. Retired City of Milwaukee firefighters James A. Rehrauer, James D. Prestidge, Glenn W. Schneeberg, Roger L. O'Brien, and Glen A. Dickau (collectively, "the firefighters") appeal from the circuit court's grant of summary judgment to the City of Milwaukee and Milwaukee Employes' Retirement System Annuity and Pension Board (collectively, "the City"). They contend that the court erred in concluding that: (1) their vested rights in their Duty Disability Retirement Allowances ("DDRA," or "duty disability benefits") were limited to those contractually in place at the time the City of Milwaukee hired them; and (2) the doctrine of issue preclusion foreclosed their action. Because we conclude that the firefighters acquired vested rights in the duty disability benefits that came to be contractually established during the course of their employment, we reverse.

I. BACKGROUND

¶ 2. The firefighters began their employment with the City of Milwaukee prior to February 8, 1972, and they received duty disability benefits at various times after September 30, 1977. Consequently, the City granted them the limited-term duty disability benefits provided under the contracts that had been in effect at the time they were hired, but denied them the lifetime duty disability benefits that had been established under the subsequent contract in effect for firefighters from February 8,1972, through September 30,1977. The firefighters describe the practical impact of tying the benefits to the time of hire:

Not all disabled police and firefighters lost out on DDRA as a consequence of the City's position, but its interpretation led to the following anomalous results. Those workers who had been hired prior to the lifetime disability contract and had applied for disability before it had ended received lifetime DDRA. Those who had been hired during the period of the lifetime disability contract and had applied for disability after it had ended also received lifetime DDRA. Only those who had been hired prior to the start of that contract but had not applied for disability until after it had ended suffered a diminution of the promised lifetime DDRA benefit. (Also, no disabled police or firefighters hired after the end of the lifetime disability contract were adversely affected, since, thereafter, whenever DDRA entitlements were changed, they invariably were lowered. The 1972 increase in such benefits was unique.)

¶ 3. Thus, in October 1998, the firefighters and the widow of one of their peers, among others, initiated the underlying action seeking declaratory relief. In the circuit court, the parties stipulated that, with respect to their cross-motions for summary judgment, the issues of law were identical to those presented to the same branch of the circuit court in DeBraska v. City of Milwaukee, Milwaukee County Circuit Court Case No. 98-CV-006533. They agreed that the only difference between the two cases was that the plaintiffs in DeBraska were retired police officers rather than retired firefighters. Additionally, the parties stipulated to the disposition of the case on cross-motions for summary judgment based on: (1) a table listing the plaintiffs and their respective dates of birth, hire, and duty disability retirement; the highest conversion age in effect during their employment; and the dates of conversion to service retirement; and (2) the circuit court filings, both in support of and in opposition to the motions and cross-motions for summary judgment, in DeBraska.

¶ 4. Adopting its oral decision in DeBraska as dispositive of the cross-motions for summary judgment in the firefighters' case, the circuit court granted summary judgment to the City. Relying on Welter v. City of Milwaukee, 214 Wis. 2d 485, 571 N.W.2d 459 (Ct. App. 1997), the circuit court concluded that "the plaintiffs have contractual and vested rights to the mandatory conversion age in effect on the date of their hire or at the date of the grant of a duty disability retirement allowance, whichever is a higher conversion age."

¶ 5. The firefighters contend that the circuit court erred. They maintain that they gained vested contractual rights to receive lifetime duty disability benefits, through the contract in effect from February 8, 1972, through September 30, 1977, and that their claim should not be foreclosed by the doctrine of issue preclusion or by "an erroneous legal conclusion that post-hiring benefits are irrelevant." The firefighters are correct.

II. DISCUSSION

¶ 6. As we have explained, summary judgment is appropriate to determine whether there are any material factual disputes, so that the parties and court may avoid a trial where there is nothing to try. Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429, 436, 531 N.W.2d 606 (Ct. App. 1995). While we apply the same methodology as the circuit court when reviewing summary judgment, id., and while we are assisted by the circuit court's analysis, Welter, 214 Wis. 2d at 489, our review is de novo, id. If we conclude that the circuit court granted summary judgment based on an incorrect legal determination, we will reverse its grant of summary judgment. Link v. Gen. Cas. Co. of Wis., 185 Wis. 2d 394, 398, 518 N.W.2d 261 (Ct. App. 1994).

¶ 7. The firefighters assert that the contract, in effect between their union and the City from February 8, 1972, through September 30, 1977, promised that any firefighter who became, and remained, disabled as a result of an on-duty injury would receive lifetime disability benefits, thus providing "greater rights with respect to disability pay than did the union contracts in place before or after." Thus, they argue, the circuit court erred in determining that "disabled City of Milwaukee employees need not be given the highest level of DDRA benefits in place during the terms of their employments because the only benefit levels that mattered to them were those that had induced them to sign on as City employees." They contend that the court's analysis is flawed and that its conclusion "flies in the face of common sense and contravenes a clear statement of the Wisconsin Legislature's understanding and intent."

¶ 8. In support of their argument, the firefighters point out that the legislature, after creating Milwaukee's Employes' Retirement System, see Laws of 1937, ch. 396, emphasized its intention to strengthen public service in the City of Milwaukee by "establishing the security" of the system's retirement and death benefits. The legislature declared:

LEGISLATIVE POLICY. Employes have been attracted to and have remained in the public service in cities of the first class despite the prevailing higher wages in other employments because of the deferred compensation for their services promised to them in the form of retirement annuities and death benefits in the retirement system to which they have been admitted as contributing members. The purpose of this act is to strengthen the public service in cities of the first class by establishing the security of such retirement and death benefits.

Laws of 1947, ch. 441, § 30(1) (emphasis added).

¶ 9. Moreover, and of particular significance to the instant case, the legislature sought to protect such benefits, once granted, from subsequent reduction. The legislature declared, in relevant part:

(2) CONTRACTS TO ASSURE BENEFITS. The benefits of members, whether employes in service or retired as beneficiaries, and of beneficiaries of deceased members in the retirement system created by chapter 396, laws of 1937, as amended, shall be assured by benefit contracts as herein provided:
(a) Every such member and beneficiary shall be deemed to have accepted the provisions of this act and shall thereby have a benefit contract in said retirement system of which he [or she] is such member or beneficiary as of the effective date of this act unless, within a period of 30 days thereafter, he [or she] files with the board administering the system a written notice electing that this act shall not apply to him [or her]. The annuities and all other benefits in the amounts and upon the terms and conditions and in all other respects as provided in the law under which the system was established as such law is amended and in effect on the effective date of this act shall be obligations of such benefit contract on the part of the city and of the board administering the system and each member and beneficiary having such a benefit contract shall have a vested right to such annuities and other benefits and they shall not be diminished or impaired by subsequent legislation or by any other means without his [or her] consent.

Laws of 1947, ch. 441, § 30(2)(a) (emphasis added). And, with specific reference to cities of the first class, the legislature continued:

For the purpose of giving to cities of the first class the largest measure of self-government with respect to pension annuity and retirement systems compatible with the constitution and general law, it is hereby declared to be the legislative policy that all future amendments and alterations to this act are matters of local affair and government and shall not be construed as an enactment of state-wide concern. Cities of the first class are hereby empowered to amend or alter the provisions of this act... provided that no such amendment or alteration shall modify the annuities, benefits or other rights of any persons who are members of the system prior to the effective date of such amendment or alteration.

Laws of 1947, ch. 441, § 31(1) (emphasis added).

¶ 10. The City argues that, in Welter, we limited the contractual vested rights of affected employees to those "in effect when they were hired and became . . . member[s] of the system — no more, no less." Thus, the City maintains, because the firefighters were hired prior to February 8, 1972, § 36-13-2-e "cannot be applied to modify their annuities, benefits or other rights, which, under Welter, are determined as of the date of hire." The City has misread Welter.

¶ 11. In Welter, we determined that, pursuant to Laws of 1947, ch. 441, §§ 30(2) and 31, a City of Milwaukee police officer's right to disability pension benefits vests as of the date of hire, not as of the date of disability. Welter, 214 Wis. 2d at 494-95. We did not, however, address the distinct issue of the instant case — whether an affected employee gains vested rights in subsequently-negotiated benefits, at the highest level contractually established at any time during the course of active duty. We now conclude that the firefighters gained such rights.

¶ 12. In 1972, the firefighters agreed to continue their employment under a contract providing vested rights in lifetime duty disability benefits. Under the Laws of 1947, ch. 441, § 30(2), a retirement system member's vested right to disability benefits may not be "diminished or impaired by subsequent legislation or by any other means without his [or her] consent." Laws of 1947, ch. 441, § 30(2)(a), (c) (emphasis added). This statutory guarantee is unambiguous; its meaning is clear. See Welter, 214 Wis. 2d at 491 ("Sections 30(2) and 31 of Chapter 441 of the Laws of 1947 are not ambiguous; their meaning is plain.").

¶ 13. In Welter, we clarified that "[u]nder §§ 30(2) and 31, retirement-plan benefits in effect when a Milwaukee police officer becomes a member of the retirement system are vested as to that officer unless the officer agrees to a change." Welter, 214 Wis. 2d at 491 (emphasis added). Here, when the firefighters' union negotiated a contract enhancing the firefighters' duty disability allowance, the firefighters, through their bargaining representative(s), "agree[d] to a change" — the increase in those benefits. Thus, starting in 1972, the firefighters gained vested rights in the lifetime duty disability benefits provided under the contract.

¶ 14. The City argues, however, that the firefighters, in relying on Chapter 441 of the Laws of 1947, ignore "the crucial fact" that the relevant statutory provisions operate to secure only the benefits "on the terms and conditions in effect on the date of hire, not to confer new rights to pension benefits." We disagree. We see no authority establishing such limits but, as we will explain, we see substantial authority establishing the firefighters' right to the enhanced benefits.

¶ 15. First, as the supreme court has declared, "pension laws should be liberally construed in favor of the persons intended to be benefited thereby." Di Dio v. Bd. of Trs. of the Milwaukee Pub. Sch. Teachers' Annuity & Ret. Fund, 38 Wis. 2d 261, 268-69, 156 N.W.2d 418 (1968). Doing so here favors the firefighters.

¶ 16. Second, the firefighters enjoyed contractual protection against potential subsequent reductions of their benefits. Under § 36-13-2-c of the Milwaukee City Charter, they have a "vested right in the . . . benefits in the amounts and on the terms and conditions and in all other respects as provided in the law ... in effect at the date of commencement of his [or her] membership and as subsequently amended." (Emphasis added.) See also Welter, 214 Wis. 2d at 497 ("Receipt of a pension installment payment that is less than that required by contract is a separate breach of that contract.").

¶ 17. Third, if any doubt remained, Welter rejected the notion that public employees somehow agree to a reduction in their benefits simply by approving, through their union, a contract that provides less favorable benefits. Id. at 495. We declared that the employees should not "be deemed to have consented to the modification of their vested retirement-system rights because the concessions were agreed-to by their unions," and we reiterated that "a union may not bargain away the vested rights of its members without the express consent of those members." Id. at 495—96. Here, the City does not argue that the firefighters provided any such "express consent."

¶ 18. And fourth, the legislature, in declaring its policy, recognized not only what would "attract[ ]" individuals to public employment, but also what would help assure that, they would "remain[ ]" in such employment. See Laws of 1947, ch. 441, § 30(1); see also Milwaukee City Charter § 36-13-1; Roth v. City of Glendale, 2000 WI 100,

¶ 27, 237 Wis. 2d 173, 614 N.W.2d 467 ("Employment benefits represent a critical bargaining tool for employers in attracting and maintaining personnel," and " '[t]he inducement of a retirement program provides a reciprocal benefit to employees] in terms of employee retention.'" (Emphases added.)). Therefore, as the firefighters fairly argue:

No prospective employee led into employment on the strength of the benefits offered by a prospective employer is likely to ignore later changes in the levels of those benefits. Examination of employment conditions does not end upon hiring. A normal employee continues to monitor the perquisites available in the workplace and compare them to similar benefit programs offered elsewhere. The decision to accept employment is followed by a series of decisions to continue employment.

¶ 19. We agree. Any conclusion to the contrary would conflict with the firefighters' statutory and contractual guarantees. Indeed, any conclusion to the contrary could undermine employment stability — to the detriment of public employers and employees alike — by motivating mass departures of employees whenever they fear that contract negotiations could produce less-favorable pension benefits than those provided under their current contract. Thus, it was reasonable and fair for the firefighters to factor in the enhanced benefits as they decided to continue their employment.

¶ 20. Thus, liberally construing these pension laws as we must, see Di Dio, 38 Wis. 2d at 268-69, carefully examining the specific provisions of the applicable statutes and ordinances, accurately applying the principles of Welter, and truly understanding the legislature's recognition of the importance of attraction and retention of public employees, we conclude that the firefighters gained vested rights in the highest level of duty disability benefits that came to be contractually established during their years of active duty. Accordingly, we must reverse the circuit court's grant of summary judgment to the City and remand for the entry of declaratory judgment in favor of the firefighters.

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

       Dickau was not a plaintiff in the underlying action, and the appellate record does not establish whether he had been a City of Milwaukee firefighter.

       Rehrauer, Schneeberg, and O'Brien were granted DDRA after September 30,1977. Prestidge never was granted DDRA.

       Specifically, the plaintiffs in the declaratory judgment action sought a determination of the correct age at which a firefighter's DDRA should be converted to a Service Retirement Allowance (SRA). The appellants explain that the contracts before February 8, 1972, and after September 30, 1977, "provided that a disabled firefighter would be 'converted' to regular retirement status upon reaching a particular age, or a particular age and length of service combination, at which time his/her DDRA would end and be replaced by payments of a Service Retirement Allowance (SRA), a lesser benefit." (For an explanation of the relationship between DDRA and SRA, see Welter v. City of Milwaukee, 214 Wis. 2d 485, 488, 571 N.W.2d 459 (Ct. App. 1997).)

       The statute also covered "[e]very future entrant who shall become a member of this retirement system after the effective date of this act." Laws of 1947, ch. 441, § 30(2)(c).

       To the extent that the firefighters are affected, the provisions of Laws of 1947, ch. 441, §§ 30 and 31(1), were incorporated into the Milwaukee City Charter at § 36-13. On February 8, 1972, the following was added to the Charter as § 36-13-2-e:

        No rights, benefits or allowances whatsoever created under or pursuant to the provisions of the Employes' Retirement Act or as amended heretofore or hereafter, nor creditable, nor prior service, nor credits granted, either recognized or allowed to such member, or retired member or beneficiary, nor any rights or benefits allowed or allowances granted by virtue of any minimum or maximum retirement provisions or requirements, nor any minimum or maximum retirement provisions of this Act shall in any manner whatsoever, or in any form, either be altered, modified, reduced, changed, cancelled, revoked or impaired, now or hereafter to the disadvantage or loss of such member or retired member or beneficiary as to his [or her] pension rights, payments or retirement allowances, and no action shall be taken nor provision enacted which in any manner diminishes, reduces or denies to such member or retired member or beneficiary any of his or her retirement allowances, benefits or rights derived from or under any section of this act or rule promulgated by the board as authorized by this act or as heretofore provided. No application nor [sic] interpretation of the provisions of this act or rule of the Board shall be either effected, instituted nor [sic] promulgated retroactively or applied in such a manner as to such member, retired member or beneficiary so that it results in any form, in the diminution, loss or partial loss or reduction of any credit, benefit or retirement allowance to which such person was or is entitled because of prior interpretation or application of the provisions of this act or rule whether general or specific. The protection, safeguarding and the security of the rights, benefits and allowances expressed in this subsection are and shall be deemed fully vested, contractual and binding upon the employer and guaranteed by it. No act, action or delinquency of a member of this system shall in any manner defeat or prevent him [or her] or his [or her] beneficiary from receiving the full benefits or allowances to which he [or she] was entitled up to the time of the occurrence of such act, action or delinquency and any provision of this Act which is in conflict therewith is deemed superseded and repealed and to be without force and effect.
      (Emphases added.)

       From 1972 through 1985, the City distributed contract certificates to its employees stating, in part:

        It being expressly the intent of this contract that such member shall continue to be fully protected and safeguarded against any diminution, loss or change whatsoever to his [or her] disadvantage as to any right, interest, or benefit the same having been once granted....
      It is further agreed and provided that such right, interest or benefit of such member under said Employes' Retirement Act once attained or granted become [sic] and are [sic] fully vested and cannot be and shall not be either disturbed, impaired, modified or restricted to the detriment of the member.

      (Emphases added.) The record, however, does not establish that the firefighters received such certificates. Nevertheless, § 36-13-2-b of the Milwaukee City Charter clarifies that the benefit contracts described in § 36-13-2 are "in full force and effect whether or not any written or printed evidence thereof shall be so issued."

        See Welter, 214 Wis. 2d at 492-93, regarding the statewide importance of maintaining " 'an efficient, dependable police force'much the same could be said of the importance of maintaining the stability of efficient, dependable fire-fighting forces.

       As noted, the firefighters also argue that the circuit court erred in concluding that their action was foreclosed under the doctrine of issue preclusion. The firefighters are correct.
      The premise underlying the circuit court's rationale, and the City's argument on appeal, is that Welter resolved the issue here, and that the issue here is identical to that presented in DeBraska v. City of Milwaukee; Milwaukee County Circuit Court Case No. 98-CV-006533. As we have explained, however, that premise is flawed; Welter addressed a distinct issue. Thus, if, as the City asserts, DeBraska addressed the issue of the instant case, and even if, as the City further asserts, all other issue preclusion criteria have been satisfied, invocation of the doctrine would be fundamentally unfair simply because it would tie the firefighters to a ruling that is incorrect as a matter of law. See Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 224-25, 594 N.W.2d 370 (1999) (second step in analyzing whether doctrine of issue preclusion applies against litigant who was not party to earlier proceeding involves determination of fundamental fairness).


author: BROWN, P. J.

text:
    Beryl Bishop, Jackie Busch, Peter Busch and Joanne Bishop, Plaintiffs-Appellants, Mary Brensinger and Wayne Johnson, Plaintiffs, v. City of Burlington, Wisconsin, Jeannie Hefty and Kevin McKillip, Defendants-Respondents.
    Court of Appeals

      No. 00-2346.

      Submitted on briefs April 20, 2001.

    Decided June 27, 2001.

    2001 WI App 154
    (Also reported in 631 N.W.2d 656.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert E. Hankel of Knuteson, Powers & Wheeler, S.C. of Racine.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Michael J. Cies-lewicz of Kasdorf Lewis & Swietlik, S.C. of Milwaukee.
    Before Brown, P. J., Nettesheim and Anderson, JJ.

       Petition to review denied.

   BROWN, P. J.

¶ 1. Several business owners and residents of the City of Burlington, referred to collectively as taxpayers, appeal from a judgment in favor of the City. The taxpayers seek to avoid the conveyance of a parking lot from the City to Kevin McKillip, a private citizen. The taxpayers raise three issues on appeal: (1) whether the conveyance is illegal for failure to follow statutory procedures, (2) whether the conveyance violates the public purpose doctrine, and (3) whether the conveyance is a misuse of discretion. We decline to address the merits of the first issue for reasons discussed below. We affirm the trial court on the second and third issues.

FACTS

¶2. The parking lot at issue is located in the heart of downtown Burlington. It is adjacent to the Commerce Building which was recently purchased from the City by McKillip. McKillip is a local real estate developer who is redeveloping the Commerce Building for commercial use. In line with this redevelopment project, McKillip sought to have the municipal parking lot conveyed to him for the use of business tenants in the Commerce Building.

¶ 3. The negotiations between McKillip and the City occurred in the context of a revitalization of downtown Burlington. The City had in effect a redevelopment plan to increase the economic vitality of the City and to enhance the retail and entertainment districts of the downtown area. Another component of the redevelopment plan was to make comprehensive transportation improvements with respect to vehicle and train traffic in the City. The Commerce Building is located within a blighted area as designated pursuant to the urban redevelopment and renewal statute. It is also located in the tax incremental district (TIF district) of Burlington. On September 1, 1998, the city council approved the conveyance of the parking lot to McKillip. The substance of the agreement between McKillip and the City is contained in the initial conveyance agreement, executed September 18,1998, and the amended and restated conveyance agreement, executed March 2,1999.

¶ 4. McKillip did not provide monetary consideration in exchange for the parking lot, but he did undertake the following obligations as set forth in the initial and restated conveyance agreements: rehabilitation of the Commerce Building and upgrade of the parking lot, conveyance to the City of a parcel situated between a railroad right-of-way and the White River for park use, and a promise to maintain the parking lot as a public facility for three years and as a parking lot for ten years after the date of conveyance. More details regarding McKillip's obligations under the agreements will be described later in the opinion.

¶ 5. On July 7, 2000, on motions for summary judgment, the trial court dismissed individual defendants Jeannie Hefty, mayor of Burlington, and McKillip. The trial court denied summary judgment to the City because of a factual dispute concerning the value of the parking lot. Following testimony in the trial on the same day, the trial court determined that the conveyance was not a misuse of discretion because there was adequate consideration. The trial court also held that the benefits inuring to the general public from the conveyance satisfied the public purpose doctrine even though the parking lot itself would no longer serve the public after three years.

¶ 6. In order for the court to void the sale, the taxpayers must establish illegality, fraud or clear misuse of discretion on the part of the City. Rath v. Two Rivers Cmty. Hosp., Inc., 160 Wis. 2d 853, 859, 467 N.W.2d 150 (Ct. App. 1991). Whether a set of facts fulfills a particular legal standard — in this case, misuse of discretion — is a question of law. Nottelson v. DILHR, 94 Wis. 2d 106, 115-16, 287 N.W.2d 763 (1980). In addition, whether a particular act is for a public purpose is a matter of law. Hopper v. City of Madison, 79 Wis. 2d 120, 127, 256 N.W.2d 139 (1977).

¶ 7. The taxpayers make no claim of fraud relating to the conveyance, nor could they based upon the record before us. However, they raise two claims of illegality which were not presented to the trial court. First, the taxpayers argue that the conveyance is illegal because of the City's failure to follow the notice requirements of Wis. Stat. § 840.11(1). The record shows that this issue was not addressed. The taxpayers' failure to present this issue or offer any evidence regarding it to the trial court waives the right to raise this issue on appeal. Kulekowskis v. Bankers Life & Cas. Co., 209 Wis. 2d 324, 335, 563 N.W.2d 533 (Ct. App. 1997).

¶ 8. Second, the taxpayers argue that the City failed to submit this matter to the planning commission for its approval. They contend planning commission approval is required by Wis. Stat. § 62.23(5). See Scanlon v. City of Menasha, 16 Wis. 2d 437, 444, 114 N.W.2d 791 (1962). The record demonstrates that counsel for the taxpayers did refer to the Scanlon case in his oral argument before the trial court. However, counsel cited to the case for support on the issue of adequacy of consideration, not illegality for failing to comply with § 62.23(5). Also, while some testimony alluded to the supposition that the planning commission had not been involved in approval of the conveyance, the taxpayers never raised this particular point as grounds for challenging the matter. A litigant must raise an issue with sufficient prominence such that the trial court understands that it is being called upon to make a ruling. State v. Salter, 118 Wis. 2d 67, 79, 346 N.W.2d 318 (Ct. App. 1984). The taxpayers never raised the issue of failure to comply with § 62.23(5) with prominence, which undoubtedly explains why the trial court opinion does not address this issue.

¶ 9. Nevertheless, the taxpayers argue we should address the issue of illegality in the interest of justice and to ensure that the real controversy has been fully tried. Wis. Stat. § 752.35. We are convinced that the real controversy concerning the conveyance of the parking lot was fully tried by the trial court. We are also convinced that the interests of justice in this case do not require us to overlook waiver. This leaves only the questions of whether the conveyance by the City violates the public purpose doctrine and whether it is a misuse of discretion for failure of consideration.

THE PUBLIC PURPOSE DOCTRINE

¶ 10. The public purpose doctrine is well established in Wisconsin, although its constitutional genesis is somewhat obscure. State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 62, 148 N.W.2d 683 (1967). The essence of the doctrine, that public funds may be expended only for public purposes, rests on the theory that governmental power should be used for the benefit of the entire community. Id. at 62-63. To maintain a public purpose, the benefit to the public must be direct and not remote. Id. at 64. The fact that a private entity receives direct benefit from an expenditure of public funds does not render the expenditure unconstitutional. If the principal parts of the expenditure are designed to promote a public purpose, private benefits which are necessary and reasonable to the main purpose are permissible. Hopper, 79 Wis. 2d at 129.

¶ 11. The public purpose doctrine applies to municipalities. Id. at 128. What constitutes a public purpose is a question for the legislature, in this case, the city council, to determine and its opinion should be given great weight. Id. If any public purpose can be conceived which might rationally justify the expenditure, the constitutional test is satisfied. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 414, 208 N.W.2d 780 (1973). We will conclude that no public purpose exists only if it is clear and palpable that there can be no benefit to the public. Id.

¶ 12. We also observe the judicial trend to extend the scope of activities considered to be valid public purposes. See State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 55-56, 205 N.W.2d 784 (1973). "[Wjhat could not be deemed a public use a century ago, may, because of changed economic and industrial conditions, be such today." Bowman, 34 Wis. 2d at 65 (citation omitted).

¶ 13. With these principles in mind, we address the taxpayers' contention that the conveyance of the parking lot violates the public purpose doctrine. We start with the premise that Wis. Stat. § 62.22(1) authorizes the City to convey the parking lot at issue. This section vests considerable discretionary power in the city council; there is no requirement that it either solicit bids or sell to the highest bidder. Hermann v. City of Lake Mills, 275 Wis. 537, 540, 82 N.W.2d 167 (1957).

¶ 14. In this case, the taxpayers do not argue that the public purpose doctrine prohibits the conveyance of public land to a private entity. Rather, they argue that the public purpose doctrine requires that public property be devoted to public purposes even after it has been conveyed to the private sector. Relying on Rath scad Hermann, the taxpayers contend that this conveyance fails because it permanently removes the parking lot from public use after three years.

¶ 15. Like this case, Hermann involved the conveyance of a public parking lot to a private entity. The taxpayers contended that the conveyance lacked adequate consideration, in effect comprising a gift of municipal property to the private party, with an underlying motive to promote the industrial growth of the city. Hermann, 275 Wis. at 541. The court acknowledged the tenet that a city may not make a gift of municipal property to an industrial corporation for the purpose of aiding the industrial development of the community. Id. "It necessarily follows that a transfer of municipal property to a manufacturing corporation in return for a payment representing only part of the fair market value of the property, which is knowingly made for the purpose of promoting industrial expansion, is equally beyond the power of the municipality." Id. at 542.

¶ 16. With respect to the public parking lot, the Hermann court noted that it would not hesitate to uphold the conveyance if it had included a binding commitment on the part of the private corporation to maintain a portion of the lot for public parking. Id. However, in that case, "the purchaser did not intend to extend parking privileges to the general public but only its own employees. To provide parking space for the employees of a specific industry and not the general public serves a private rather than a public purpose." Id. at 543.

¶ 17. In Rath, the City conveyed a hospital to a nonprofit corporation without any monetary consideration. Rath, 160 Wis. 2d at 857. The deed contained a restriction that the hospital would revert back to the City if it ceased to be used for the health care needs of the community. Id. at 862. The court concluded that the restrictive language in the deed created a binding commitment to use the property for a public purpose. Id. at 865 (citing Hermann, 275 Wis. at 542-43). It further determined that the binding commitment also provided adequate consideration.

¶ 18. We discern from the above discussion that a binding commitment by a private entity to use property for the public benefit is a reasonable, but not exclusive, means to safeguard that benefit. See Rath, 160 Wis. 2d at 862 ("The only safeguards required are those safeguards reasonably necessary under the circumstances to attain the public purpose."). As long as the agreement contains adequate controls to maximize the likelihood that the City's public purpose will be fulfilled, the constitutional concerns will be satisfied. Certainly, the public purpose doctrine does not require, in every case where public property is conveyed to the private sector, that public use be reserved for perpetuity. See State ex rel. Tomasic v. Kansas City, 701 P.2d 1314, 1334 (Kan. 1985) (upholding transfer of municipal property to private buyer in exchange for cash payment and economic benefits expected to flow from buyer's presence in the municipality).

¶ 19. Furthermore, we interpret Hermann to prohibit the use of public funds to promote the expansion of a particular industry. In that case, the purchaser offered a below-market price for a parcel that the City had already improved. Hermann, 275 Wis. at 543. In addition to taking over the parking lot, the purchaser intended to erect an office and engineering building as an expansion of its manufacturing operations already located in Lake Mills. Id. at 539. The court could see no larger public benefit conferred on the City other than the cash payment. Id. at 542-43. As such, the court viewed the conveyance as an attempt to aid a particular industry to expand its operations and, therefore, it served a private rather than public purpose.

¶20. We are presented with entirely different facts in this case because it is clear that the City had no motive to aid in the expansion of McKillip's business or industry in general. The City was driven instead by its predominant goal of implementing the redevelopment of a deteriorating section of the downtown. The key to this case, therefore, is not whether the parking lot will continue to be accessible to the public, but whether the agreement confers a direct public benefit and contains adequate controls to insure the likelihood that the public benefit will be accomplished.

¶ 21. Our review of the record discloses that the purpose of the conveyance was to promote the rehabilitation of downtown Burlington. The rehabilitation of deteriorating public facilities is a legitimate public purpose. Bryant v. City of Atlantic City, 707 A.2d 1072, 1080-81 (N.J. Super. Ct. App. Div. 1998). The taxpayers point out that the conveyance did not proceed through WlS. Stat. ch. 66; nonetheless, it is clear that carrying out the redevelopment plan was the City's main purpose in conveying the parking lot to McKillip. The Community Redevelopment Authority sanctioned the conveyance as part of the overall redevelopment of the Commerce Building undertaken by McKillip. The point man for the negotiation of the Commerce Building and the parking lot, Mark Fitzgerald, testified that the City "considered [the building] to be a threshold building in terms of the redevelopment because of its size and prominent location."

¶ 22. Moreover, the terms of the initial and restated conveyance agreements reveal that the benefits to be conferred on the public would accomplish many of the City's immediate and long-term goals for revitalization of downtown Burlington. As a condition precedent to the conveyance of the parking lot, McKil-lip was obligated to rehabilitate both the facade of the Commerce Building and the first floor. This condition provided a safeguard for the public benefit, ensuring that the public would reap the visual and economic benefits of a prominent redeveloped building before the City would convey the parking lot. Furthermore, the combining of the Commerce Building and parking lot into a single tax parcel has generated increased tax revenue for the City which can be used for further redevelopment. In addition, the City reserved a portion of the parking lot to widen the radius of the intersection and also required McKillip to close an entrance to the lot, both in conformance with the City's goal to improve vehicular traffic in the downtown area.

¶ 23. Cognizant of the acute need for municipal parking, the City required McKillip to maintain the parking lot as a public facility for three years and as a parking lot for ten years after the date of the conveyance. The restated agreement clarifies that within the three-year time frame the City would implement its plan to construct a new, larger lot across from the Commerce Building. The new lot would be funded in part by tax revenue generated by the TIF district. The record indicates that construction of this new lot is underway.

¶ 24. McKillip also conveyed to the City a riverfront parcel of land located behind the Commerce Building between the White River and a railroad right-of-way. The taxpayers contend this parcel has zero market value because it is submerged much of the year by the river and cannot be developed as an economic unit. The record shows otherwise. This parcel closes a gap between other parcels owned by the City and, according to Fitzgerald, is a fundamental piece of the riverfront walkway plaza planned for that area. The City considers this riverfront redevelopment project to be a "major, major attribute for the downtown."

¶ 25. We are mindful that in reviewing the public purpose of a conveyance, the benefits must be direct and not remote and safeguards must be in place to ensure that the benefit is accomplished. With this conveyance, the City gains entire control of the instant riverfront so that it can develop a plaza. It is therefore a significant and direct benefit to the citizens of Burlington. See Northlake Marine Works, Inc. v. City of Seattle, 857 P.2d 283, 294 (Wash. Ct. App. 1993) (upholding transfer of municipal property where city conveyed abandoned right-of-way to private party in exchange for perpetual easement for construction of a trail).

¶ 26. Given the recitation of the above public benefits, we cannot conclude that the main purpose of this transaction was to confer a private benefit or aid the industrial expansion of the community. We determine the primary purpose of the conveyance was to further the redevelopment of a blighted section of downtown Burlington. McKillip's investment in the Commerce Building and adjacent parking lot conferred significant, direct benefits to Burlington by enhancing traffic flow and stimulating the economic vitality of the downtown. The riverfront parcel will contribute to the City's long-term goal of developing a walkway plaza. While we recognize that McKillip will eventually enjoy the private use of the parking lot and its enhanced resale value, this private benefit does not deprive the conveyance of its public purpose.

MISUSE OF DISCRETION

¶ 27. The taxpayers argue that the City misused its discretion by making a gift of a public parcel for the private benefit of McKillip. This presents an issue of adequacy of consideration. The trial court heard testimony on the fair market value of the parking lot from a city assessor and from an appraiser hired by the taxpayers. The taxpayers' appraiser believed the lot to be valued at $218,000, while the City believed the lot was worth about $25,000. The trial judge found the testimony of the city assessor to be more credible. We defer to factual findings of the trial judge unless they are clearly erroneous.

¶ 28. In addition, we concur with the view held by courts in other states that it is proper, when determining the adequacy of consideration for transfers of public property to private entities, to evaluate the entire transaction as a whole. Tomasic, 701 P.2d at 1334. The consideration may consist of benefits other than, or in addition to, money, such as the public benefit which flows from the transfer and the obligations the private actor assumes under the agreement. See, e.g., Burkhardt v. City of Enid, 771 P.2d 608, 611 (Okla. 1989) (obligations assumed by private college and direct economic benefits expected to flow from its presence were adequate consideration); Bryant, 707 A.2d at 1081 (financial obligations of redeveloper and economic by-products of expected development were adequate consideration). We find support for this approach in Wisconsin case law, but only in the context of nonprofit corporations. See Rath, 160 Wis. 2d at 865 (nonprofit hospital's binding commitment to use property for health care is adequate consideration); State ex rel. State Historical Soc'y v. Carroll, 261 Wis. 6, 24, 51 N.W.2d 723 (1952) (finding adequate consideration where no cash payment but obligations assumed by nonprofit foundation). We now apply it in the context of this case.

¶ 29. We have already discussed the many benefits inuring to the public under the conveyance agreement between McKillip and the City. In addition, the agreement makes clear and the record verifies the numerous obligations that have already been fulfilled by McKillip. Under the agreement, McKillip agreed to rehabilitate and upgrade the parking lot. The sum he has invested for that purpose, $60,000, exceeds the assessed value of the lot. These expenditures include: (1) regrading and resurfacing the lot, (2) closing one access driveway and improving the remaining access driveway, (3) constructing curbed green space for visual enhancement, and (4) installing a concrete sidewalk. Most of these expenditures benefit the general public in addition to the users of the parking lot itself.

¶ 30. We recognize that it is not this court's function to review the wisdom of actions taken by a city council. Rath, 160 Wis. 2d at 863. Our goal is simply to insure that the conveyance serves a direct public purpose and that adequate consideration exists. We conclude that the City has established that the conveyance of the parking lot to McKillip serves primarily the legitimate public purpose of revitalizing a blighted section of downtown Burlington. Although no cash changed hands in the conveyance, we determine that there was no misuse of discretion because the obligations on the part of McKillip and the many benefits accruing to the City from the conveyance sufficed for consideration.

By the Court. — Judgment affirmed.

      see WIS. STAT. § 66.1331(2) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version.

       According to the testimony of Mark Fitzgerald, city administrator, TIF districts constitute the principal financing mechanism for redevelopment. Essentially, when land is improved in the TIF district, whatever tax revenue is generated by the improvement is used to pay for infrastructure improvements within the district.

       The taxpayers appeal the dismissal of McKillip on the basis that he is a necessary party. Oúr disposition of this case renders this issue moot.

       WISCONSIN Stat. § 62.22(1) provides in relevant part:
      The governing body of any city may by gift, purchase or condemnation acquire property, real or personal, within or outside the city, for parks, recreation, water systems, sewage or waste disposal, airports or approaches thereto, cemeteries, vehicle parking areas, and for any other public purpose; may acquire real property within or contiguous to the city, by means other than condemnation, for industrial sites; may improve and beautify the same; may construct, own, lease and maintain buildings on such property for public purposes; and may sell and convey such property.

       Fitzgerald projected that McKillip's redeveloped parcel will generate over $100,000 of additional tax increment for Burlington.


author: SNYDER, J.

text:
    Kris J. Kavelaris, Plaintiff-Respondent, v. MSI Insurance Company, a Wisconsin corporation, and Evelyn O. Luepke, Defendants, Connecticut General Life Ins. Co., a foreign corporation, Defendant-Appellant.
    Court of Appeals

      No. 00-2984.

      Submitted on briefs May 11, 2001.

    Decided June 27, 2001.

    2001 WI App 161
    (Also reported in 631 N.W.2d 665.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas H. Koch of Wille, Gregory &Lundeen of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Laurence J. Fehring of Habush, Habush, Davis & Rottier, S.C. of Milwaukee.
    Before Brown, P.J., Nettesheim and Snyder, JJ.
   SNYDER, J.

¶ 1. Connecticut General Life Ins. Co. (CGLI) appeals from a judgment and an order in favor of its insured, Kris J. Kavelaris. Kavelaris sued Evelyn O. Luepke and her liability insurer, MSI Insurance Company (MSI), for damages resulting from Luepke's negligent motor vehicle operation. CGLI had issued a policy to Kavelaris's employer, Whitman-Hart, Inc., to cover medical expenses relating to the Whitman-Hart Employee Retirement Income Security Act (ERISA) employee benefit plan. See 29 U.S.C. § 1144 (2000). CGLI paid medical expenses to Kave-laris and moved for reimbursement of its subrogated claim. The trial court denied CGLI's subrogation claim because Kavelaris would not totally recover his full damages under Wisconsin's "made whole" doctrine if the CGLI subrogation claim prevailed. We affirm the trial court order denying the CGLI subrogation claim and the judgment.

BACKGROUND

¶ 2. The relevant facts are undisputed. On June 10,1998, Kavelaris and his wife Mary were involved in a motor vehicle accident caused by the negligence of Luepke. Kavelaris was seriously injured and Mary was killed in the accident. Kavelaris filed an action on August 3, 1998, against Luepke and MSI, and named CGLI as a subrogated lienholder. CGLI had paid $130,900.78 in medical expenses pursuant to the employee benefit plan provided to Kavelaris by his employer, Whitman-Hart. Whitman-Hart, as the sponsor and administrator of the ERISA plan, purchased a group insurance policy to cover plan medical expenses from CGLI, an insurance company. The CGLI policy premiums were paid by Whitman-Hart and its employees, including Kavelaris.

¶ 3. MSI agreed to pay its policy limits of $200,000 to Kavelaris in exchange for a complete release and dismissal of the negligence claims against Luepke. Kavelaris accepted the offer contingent upon CGLI waiving its subrogation claim because he would not be made whole by accepting $200,000 and then deducting the CGLI claim, leaving him with less than $70,000. CGLI refused to waive its subrogation claim on the basis that the claim was governed by ERISA rather than by Wisconsin's "made whole" doctrine, and moved for declaratory relief and reimbursement. The trial court held that the Wisconsin "made whole" doctrine is not preempted by ERISA, and CGLI appeals from the trial court's order denying its motion.

¶ 4. The Whitman-Hart ERISA plan provides in relevant part:

EXPENSES FOR WHICH A THIRD PARTY MAY BE LIABLE
This policy does not cover expenses for which another party may be responsible as a result of having caused or contributed to the Injury or Sickness. If you incur a Covered Expense for which, in the opinion of [CGLI], another party may be liable
1. [CGLI] shall, to the extent permitted by law, be subrogated to all rights, claims or interests which you may have against such party and shall automatically have a lien upon the proceeds of any recovery by you from such party to the extent of any benefits paid under the Policy. You or your representative shall execute such documents as may be required to secure [CGLI's] subrogation rights.

DISCUSSION

¶ 5. Whether ERISA preempts Wisconsin's "made whole" doctrine is a question of law that we review de novo. See Aurora Med. Group v. DWD, 2000 WI 70, ¶ 11, 236 Wis. 2d 1, 612 N.W.2d 646. The "made whole" doctrine originated in Garrity v. Rural Mutual Insurance Co., 77 Wis. 2d 537, 546-47, 253 N.W.2d 512 (1977), where our supreme court held in a fire insurance case that the insured was entitled to be made whole before a subrogated insurer may share in the amount recoverable from a third-party tortfeasor. The "made whole" doctrine was reaffirmed and extended to automobile accident cases in Rimes v. State Farm Mutual Automobile Insurance Co., 106 Wis. 2d 263, 270, 316 N.W.2d 348 (1982). The Rimes court explained the doctrine as follows:

Under Wisconsin law the test of wholeness depends upon whether the insured has been completely compensated for all the elements of damages, not merely those damages for which the insurer has indemnified the insured. Thus the mere fact that the settlement figure . . . exceeded the insurer's claim for subrogation is immaterial. The injured or aggrieved party is not made whole unless all his damages arising out of the tort have been fully compensated.

Id. at 275.

¶ 6. It is undisputed that Kavelaris has not been made whole within the meaning of Rimes. CGLI, nonetheless, asserts that it is entitled to reimbursement of its subrogation claim because the "made whole" doctrine is preempted by ERISA. Whether an insured employee benefit plan is preempted by ERISA has previously been addressed in Ramsey County Medical Center, Inc. v. Breault, 189 Wis. 2d 269, 525 N.W.2d 321 (Ct. App. 1994). The Ramsey court held that ERISA preempts an uninsured employee benefit plan from state law. Id. at 278. However, the court cautioned that "if the . . . [p]lan is an insured plan, it is saved from preemption and therefore subject to the Rimes doctrine." Ramsey, 189 Wis. 2d at 275.

¶ 7. ERISA contains three clauses that are relevant to CGLI's preemption argument: (1) the preemption clause; (2) the savings clause; and (3) the deemer clause. The ERISA preemption clause states in relevant part that "[e]xcept as provided in subsection (b) of this section [the savings clause], the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan . . . ." 29 U.S.C. § 1144(a) (2000). The parties concede that under this clause ERISA preempts the Rimes "made whole" doctrine relating to an employee benefit plan. However, we now turn to the remaining ERISA clauses.

¶ 8. The savings clause states that "[ejxcept as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." 29 U.S.C. § 1144(b)(2)(A) (2000). Therefore, to the extent that the Rimes "made whole" doctrine regulates insur-anee in Wisconsin within the meaning of the ERISA savings clause, it is saved from ERISA preemption.

¶ 9. Whether a state law regulates insurance within the meaning of the ERISA savings clause is determined from a "common sense view of [whether] the contested prescription regulates insurance." UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 367 (1999). "A common sense view of the word 'regulates' would lead to the conclusion that in order to regulate insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry." Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987).

¶ 10. In addition to the commonsense test, Pilot Life discussed the McCarran-Ferguson Act factors. Under McCarran-Ferguson, a state law regulates insurance if: (1) the law transfers or spreads policyholder risk; (2) the law concerns an integral part of the policy relationship between insurer and insured; and (3) the law is limited to entities within the insurance industry. Pilot Life, 481 U.S. at 48-49. In Moran v. Rush Prudential HMO, Inc., 230 F.3d 959 (7th Cir. 2000), cert. granted, 121 S. Ct. 2589 (U.S. June 29, 2001) (No. 00-1021), the court asserted that "[a] state law may fall within the savings clause even if it cannot satisfy all three of the McCarran-Ferguson factors." Id. at 969.

¶ 11. The Wisconsin "made whole" doctrine requires that insurers forgo a policy subrogation right unless the insured is fully reimbursed for his or her damages. This industry requirement shifts the risk of recovery of subrogated medical expenses from the insured to the insurer. The requirement is an integral part of the policy relationship between the insured and the insurer because the "made whole" doctrine is a mandatory provision affecting the cost of every Wisconsin insurance policy.

¶ 12. Here, the trial court concluded that the Rimes "made whole" doctrine regulates insurance in Wisconsin because the doctrine has an impact on the insurance industry by controlling how much money the insurer can recover under a subrogation provision, which then has an effect on the cost of the insurance coverage. We agree with the trial court that Rimes is an insurance case, that it is directed at the insurance industry, and that the ERISA savings clause applies to the insurance benefit provided by CGLI.

¶ 13. The savings clause is, however, limited by the provisions of ERISA's deemer clause. The relevant portion of the deemer clause states that "[n]either an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company ... or to be engaged in the business of insurance ... for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts ...." 29 U.S.C. § 1144(b)(2)(B) (2000). Therefore, while ERISA does not preempt a state from regulating insurance companies, it does prohibit a state from deeming an employee benefit plan as an insurance contract in order to save the employee benefit plan from federal preemption.

¶ 14. In Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985), the United States Supreme Court differentiated between insured and uninsured plans and their relationship to ERISA, holding that uninsured employee benefit plans are governed exclusively by federal law. However, insured employee benefit plans may be indirectly regulated by the states. Id. at 732-33. Therefore, if Wisconsin's "made whole" doctrine regulates insurance and we apply the exception provided in Ramsey, 189 Wis. 2d at 275 ("if the... [p]lan is an insured plan, it is saved from preemption and therefore subject to the Rimes doctrine"), the deemer clause does not negate the savings clause and the "made whole" doctrine is saved from ERISA preemption.

¶ 15. In FMC Corp. v. Holliday, 498 U.S. 52 (1990), the United States Supreme Court explained that

employee benefit plans that are insured are subject to indirect state insurance regulation. An insurance company that insures a plan remains an insurer for purposes of state laws "purporting to regulate insurance" after application of the deemer clause. The insurance company is therefore not relieved from state insurance regulation. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the plan's insurer.

Id. at 61.

¶ 16. CGLI is the Whitman-Hart plan insurer. We conclude that the ERISA deemer clause does not apply to negate the ERISA savings clause because CGLI is an insurance company that has insured the Whitman-Hart ERISA plan under a policy regulated by the insurance laws of Wisconsin.

CONCLUSION

¶ 17. CGLI provides an insurance policy to cover medical expenses provided under the Whitman-Hart ERISA plan in return for premiums paid by Whitman-Hart and its covered employees, including Kavelaris. Because the ERISA plan is an insured plan under an insurance policy regulated by Wisconsin insurance law, the ERISA savings clause applies and ERISA does not preempt the Wisconsin Rimes "made whole" doctrine. Because CGLI is an acknowledged insurance company, the deemer clause is not applicable. We conclude that the CGLI policy must comply with the Wisconsin "made whole" insurance regulation and we affirm the trial court.

By the Court. — Judgment and order affirmed.

       Luepke and MSI have been released from the action and do not appeal from the judgment or order.

       15 U.S.C. §§ 1011-1015 (2000).


author: DYKMAN, P.J.

text:
    Estate of Dorothy E. Paulman Executor: Carole D. Paulman, Plaintiff-Appellant, v. Jeannine Pemberton, Defendant, Charles R. Paulman, Defendant-Respondent.
    Court of Appeals

      No. 98-3021.

      Submitted on briefs January 5, 2001.

    Decided June 28, 2001.

    2001 WI App 164
    (Also reported in 633 N.W.2d 715.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas Van Beckum of Thomas Van Beckum Law Office, S.C., Kenosha.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Charles R. Paul-man, pro se.
    Before Dykman, P.J., Roggensack and Lundsten, JJ.
   DYKMAN, P.J.

¶ 1. Carole D. Paulman, in her capacity as executor of her mother's estate, appeals from an order denying her motion asking the trial court to force the sale of a home owned by Charles Paulman. Contrary to what the trial court determined, Carole argues that Charles' residence is not protected from a forced sale under Wis. Stat. § 815.20 (1995-96), the statute exempting homesteads from execution. We conclude that § 815.20 does not apply to Charles in regard to Carole's claim because he purchased his home with converted funds in which Carole had an interest. We therefore reverse.

1. Background

¶ 2. Carole, Jeannine Pemberton, and Charles are the surviving children of Dorothy Paulman. In November 1991, Dorothy executed a will leaving her property to the three of them in approximately equal shares. Sometime after that, Dorothy executed a "Declaration of Trust" and "Paulman Family Trust," which transferred all her assets to the trust. The trust named Jeannine and Charles as primary beneficiaries, with only minor provisions for Carole.

¶ 3. Dorothy also executed one or more durable powers of attorney, giving Jeannine and Charles control over her affairs and assets. Subsequently, Dorothy's house was sold for $186,000, and Jeannine and Charles placed her in a group home. After the sale of the house, Jeannine wrote a check to herself for $88,000, apparently drawing on a joint account containing the proceeds from the sale. Jeannine also wrote a check to Charles for $78,237, drawing on the same account. Jeannine and Charles used these funds to purchase homes.

¶ 4. On February 24, 1995, Dorothy revoked the family trust and executed new powers of attorney. She died on May 2, 1995, and her will was admitted to probate in Illinois with Carole as executor of the estate. Carole filed a complaint against Jeannine and Charles, alleging conversion and breach of fiduciary duty. She amended the complaint to include a request that the trial court impose a constructive trust on any property Jeannine or Charles purchased using funds obtained from their mother. The trial court did so.

¶ 5. In an October 1996 stipulation and order, Jeannine and Charles agreed to pay $3,000 to Dorothy's estate within seven days, an additional $20,000 within sixty days, and one more sum of $12,000 by June 1, 1997. The stipulation also stated that if Jeannine and Charles did not make the payments, the court would enter a judgment on the merits in favor of Dorothy's estate.

¶ 6. Jeannine and Charles failed to follow the stipulation, and the trial court entered judgment accordingly. The judgment stated that "[t]he material allegations of plaintiffs Complaint as amended are proven to be true and correct." Jeannine and Charles moved to vacate the judgment, arguing that Carole had failed to comply with one of the Wisconsin probate statutes. The trial court denied the motion.

¶ 7. Carole moved the trial court to order Jeannine and Charles to deliver title and possession of their homes to Dorothy's estate, in satisfaction of the judgment. In the alternative, Carole requested in her motion that the court force the sale of the homes. Jeannine and Charles asserted that under Wis. Stat. § 815.20, their homes were exempt from execution and could not be used to satisfy the judgment. The trial court agreed with Jeannine and Charles, determining that their homes were protected by the homestead exemption. Carole appeals.

II. Analysis

¶ 8. As an initial matter, we note that after Carole filed her appellate brief, we issued an order dismissing Jeannine from this appeal because she had received a discharge of her debts under Chapter 7 of the bankruptcy code. Carole moved that we reinstate the appeal against Jeannine because Carole had subsequently filed a petition to reopen Jeannine's bankruptcy case. We issued another order, explaining that we would hold Carole's motion to reinstate the appeal against Jeannine in abeyance pending the bankruptcy court's decision. We also ordered that the appeal against Charles would proceed and that Carole should advise this court of the outcome of Jeannine's bankruptcy proceedings. Carole has since informed us that the bankruptcy court denied her petition and that Jeannine's debts remain discharged. We therefore deny Carole's motion to reinstate Jeannine as a party to this appeal.

¶ 9. Carole makes a number of arguments in support of her assertion that Charles is not entitled to the homestead exemption set forth in Wis. Stat. § 815.20. She argues that (1) the trial court had the authority under its general equitable powers to transfer Charles' home to Dorothy's estate; (2) Charles does not have an actual ownership interest in his home because he did not purchase the home with his own funds; (3) Charles waived any exemption rights by stipulating to an entry of judgment and by failing to timely assert the exemption rights; (4) Charles gave Carole a "consensual lien" over his home pursuant to Wis. Stat. §815.18(12) when he stipulated to a judgment; (5) the homestead exemption does not apply to Charles by operation of § 815.18(10); and (6) equity and public policy require that Charles be denied the protection of the homestead exemption.

¶ 10. Charles responds pro se to most of Carole's arguments, asserting that because he owns less than $40,000 of equity in his home, the home is fully exempt, assuming WlS. Stat. § 815.20 applies. We need not determine whether Charles' home would be fully or partially exempt under § 815.20 because we conclude that the homestead exemption does not apply to him.

¶ 11. This case requires us to interpret and apply the homestead exemption statute, a question of law that we review de novo. See Rumage v. Gullberg, 2000 WI 53, ¶ 16, 235 Wis. 2d 279, 611 N.W.2d 458. The homestead exemption is to be liberally construed. See id. at ¶ 17. However, as we discuss below, there are select instances in which the homestead exemption is not available to a party who seeks its protection.

¶ 12. In Warsco v. Oshkosh Sav. & Trust Co., 190 Wis. 87, 88-89, 96, 208 N.W. 886 (1926), the supreme court upheld the trial court's imposition of a lien on homestead property in which converted trust funds were invested. The court interpreted and applied Wis. Stat. § 272.20 (1925), the predecessor statute to Wis. Stat. § 815.20. See Warsco, 190 Wis. at 89; cf. Wis. Stat. § 815.20. The court recognized that "[t]he language of sec. 272.20 of the Statutes must be conceded as broad and inclusive," and that the exemption may apply not only to contract debts, but also to judgments in tort. Warsco, 190 Wis. at 91-92. However, the court concluded that the exemption did not apply where the judgment was based on the conversion of funds directly traceable to the homestead. See id. at 92. The court reasoned as follows:

[I]t was never contemplated nor intended that a homestead shall be created and maintained with stolen or embezzled property, or by the wrongful appropriation of property rightly belonging to others. If this were so, the statute exempting a homestead, instead of promoting the public welfare, would operate as an immoral and baneful influence, undermining and destroying the fundamental principles of government.

Id. at 93-94.

¶ 13. Charles cites to Smith v. Omans, 17 Wis. 406 (1863), for the proposition that "[t]he homestead of a judgment debtor is not liable to forced sale on execution, although the judgment was rendered in an action of tort." However, the Smith case involved an assault and battery, id. at 407, and the court in Warsco specifically recognized that it was retreating from its position in Smith in cases where the homestead was purchased or maintained with converted funds, Warsco, 190 Wis. at 92.

¶ 14. Warsco is an old case, but it remains good law. Moreover, it is not the only instance where an appellate court has limited the application of the homestead exemption. In Master Lock Credit Union v. Rayford, 119 Wis. 2d 301, 302, 349 N.W.2d 737 (Ct. App. 1984), a husband and wife owned a home in joint tenancy. Master Lock obtained a judgment for approximately $3,100 against the wife in June 1980. Id. The couple divorced in June 1982 and stipulated that the husband would receive their home, whereas the wife would be awarded a lien of $7,500 on the property. Id. After the divorce, the trial court allowed Master Lock to purchase the wife's lien interest at a sheriffs sale. Id. The husband appealed, arguing that under the homestead exemption, both the home and his wife's lien interest in it were exempt from execution and that Master Lock could not hold a judgment lien against the property. Id. at 302-03. We rejected his arguments, concluding that "homestead rights can rise no higher than ownership rights" and that his ownership rights were subject to the lien created by the divorce stipulation. Id. at 304.

¶ 15. Thus, under Warsco and Master Lock, we know that there are instances where the homestead exemption does not apply, thus permitting a judgment lien against a person's home. We see no reason to treat judgment liens differently from execution sales under Wis. Stat. § 815.20. The plain language of § 815.20 does not differentiate between the two, and neither did the supreme court in State v. Dziuba, 148 Wis. 2d 108, 435 N.W.2d 258 (1989). In Dziuba, the court concluded that the State could force the sale of a criminal defendant's home and apply the proceeds toward restitution. Id. at 109, 119. The defendant attempted to invoke § 815.20, but the court relied on Warsco when it explained that "where a person benefits from a wrong-fid act, the homestead exemption statute may have to surrender to other stated public policy." Dziuba, 148 Wis. 2d at 112, 115.

¶ 16. Charles is not facing a criminal restitution order, but that is not a requirement under Warsco. Warsco requires only conversion, theft, or other wrongful appropriation. Charles asserts that he did not convert Dorothy's property and that this court cannot rest any decision on such an "assumption." However, Charles' conversion of his mother's property is not merely an assumption; it is a fact he and Jeannine conceded in the trial court. As part of the settlement stipulation, they agreed that if they failed to meet the stipulation's terms, the trial court would enter judgment on the merits in favor of Dorothy's estate. When Jeannine and Charles violated the agreement, that is just what the trial court did, incorporating as fact Carole's allegations in her amended complaint. That complaint includes this allegation: "Defendants misrepresented and misused their apparent fiduciary authority to convert and distribute Dorothy E. Paul-man's assets and monies to their own benefit." Thus, Charles has conceded that he engaged in misrepresentation and conversion, and he cannot now argue otherwise.

¶ 17. In sum, we conclude that Wis. Stat. § 815.20 does not bar Carole’s request for an execution sale of Charles' home because he purchased it with converted funds in which Carole had an interest. We therefore reverse the trial court order determining that Charles' home was protected by § 815.20, and we remand for further proceedings consistent with this opinion.

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

      All references to the Wisconsin Statutes are to the 1995 — 96 version unless otherwise noted. WISCONSIN STAT. § 815.20 states in part:
      (1) An exempt homestead as defined in s. 990.01 (14) selected by a resident owner and occupied by him or her shall be exempt from execution, from the lien of every judgment and from liability for the debts of the owner to the amount of $40,000, except mortgages, laborers', mechanics' and purchase money liens and taxes and except as otherwise provided. The exemption shall not be impaired by temporary removal with the intention to reoccupy the premises as a homestead nor by the sale of the homestead, but shall extend to the proceeds derived from the sale to an amount not exceeding $40,000, while held, with the intention to procure another homestead with the proceeds, for 2 years.

       Copies of the check in the record indicate a joint checking account in Dorothy's and Jeannine's names.

       Charles has not argued on appeal that Carole failed to comply with the probate statutes, and we therefore consider that issue abandoned. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998).

      Wisconsin Stat. § 815.18(12) reads:
      Limitations on exemptions. No property otherwise exempt may be claimed as exempt in any proceeding brought by any person to recover the whole or part of the purchase price of the property or against the claim or interest of a holder of a security interest, land contract, condominium or homeowners association assessment or maintenance lien or both, mortgage or any consensual or statutory lien.

       Wisconsin Stat. § 815.18(10) reads, in part:
      Any or all of the exemptions granted by this section may be denied if, in the discretion of the court having jurisdiction, the debtor procured, concealed or transferred assets with the intention of defrauding creditors.

       Wisconsin Stat. § 272.20 (1925) reads in part:
      A homestead to be selected by the owner thereof. . . and the dwelling house thereon ... shall be exempt from seizure or sale on execution, from the lien of every judgment and from liability in any form for the debts of such owner to the amount in value of five thousand dollars, except laborers,' mechanics' and purchase money liens and mortgages lawfully executed, and taxes lawfully assessed and except as otherwise provided in these statutes, and such exemption shall not be impaired by temporary removal with the intention to reoccupy the same as a homestead nor by the sale thereof, but shall extend to the proceeds derived from such sale to an amount not exceeding five thousand dollars, while held, with the intention to procure another homestead therewith, for a period not exceeding two years.

      In Master Lock Credit Union v. Rayford, 119 Wis. 2d 301, 304, 349 N.W.2d 737 (Ct. App. 1984), we did not decide the question of whether Master Lock could force a sale of the husband's home because Master Lock conceded that it took the wife's lien rights subject to the terms of the divorce decree, which apparently prohibited partition.