author: GORDON, J.

text:
    Zywicke and others, Respondents, v. Brogli, Appellant.

      September 1

    September 29, 1964.

      For the appellant there was a brief and oral argument by Henry L. Arnold of Milwaukee.
    For the respondents there was a brief by Ben G. Slater and Ralph K. Rosenbaum, Jr., both of Milwaukee, and Homer Lynn of Saukville, and oral argument by Mr. Rosenbaum.

   GORDON, J.

When a judgment has been discharged in bankruptcy, the debtor is entitled to a satisfaction of such judgment under sec. 270.91 (2), Stats. The debtor has a right to a satisfaction for reasons which are wholly extraneous to the financial-responsibility sections of the Motor Vehicle Code. An important reason for granting the satisfaction is that a discharged debtor might be adversely affected by the existence of an unsatisfied judgment with reference to his prospects of employment or of obtaining credit.

We are of the opinion that the defendant was entitled to a satisfaction of this judgment. If that were his sole motivation in taking this appeal, he has won a complete victory; however, if he also anticipated that he would thereby recover his driving privileges as a matter of right, his victory will prove to be an illusory one.

In his carefully composed memorandum opinion, the learned trial judge assumed that the commissioner of motor vehicles would not be able to go behind the satisfaction of the judgment to ascertain that such satisfaction came about as a result of a discharge in bankruptcy. If this assumption were correct, the horns of the dilemma would be sharp. On the one side would be the statutory direction that a discharged judgment be satisfied. Sec. 270.91 (2), Stats. On the other side would be the clear legislative mandate that so far as motor vehicle financial responsibility is concerned, a judgment debtor is not to be relieved by a discharge in bankruptcy. Sec. 344.26 (2).

However, we conclude that the commissioner is- as free to look behind the satisfaction as he is to look at the face of the instrument. If, as in the instant case, the satisfaction is found to stem from a discharge in bankruptcy, the commissioner would be entitled to heed sec. 344.26 (2), Stats., and to deny the request for reinstatement of the driving license.

The right of the commissioner to delve behind the satisfaction is suggested by sec. 343.14 (2) (f), Stats., which provides that the commissioner can require “such further information as the department may reasonably require to enable it to determine whether the applicant is by law entitled to the license applied for.” In addition, in considering the reinstatement of operating privileges which were removed under ch. 344, Stats., sec. 344.09 provides that the commissioner must be “satisfied.” It would thus appear that the' commissioner would not be required blindly to reinstate a license when a judgment has been satisfied if the commissioner learns that the satisfaction resulted from á discharge in bankruptcy.

We suggest that a trial judge who is confronted with a demand for a satisfaction of a bankruptcy-discharged judgment would be warranted in ordering that the satisfaction declare on its face that it is based upon a discharge in bankruptcy. This would alert the commissioner so as to enable him to carry out the mandate of sec. 344.26 (2), Stats. However, as noted earlier, the commissioner would be entitled to apply such statutory mandate if the information reached him in some other manner. In other words, sec. 344.26 (2) is to be enforced even though a satisfaction is granted under sec. 270.91 (2). The two statutes are independent and not in pari materia. The two statutes may fully coexist notwithstanding a. seeming contradiction. On scrutiny, we are persuaded that there is no conflict between them.

By the Court. — Order reversed.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Rovaughn Hill, Defendant-Appellant.

    Court of Appeals

      No. 00-0256-CR.

      Submitted on briefs July 20, 2000.

    Decided October 26, 2000.

    2000 WI App 259
    (Also reported in 622 N.W.2d 34.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Gerald P. Boyle and Jonathan C. Smith of Boyle, Boyle & Smith, S.C. of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.

      Petition to review denied.

   VERGERONT, J.

¶ 1. Rovaughn Hill appeals the trial court's order denying his motion to dismiss the criminal complaint on double jeopardy grounds. Hill contends the double jeopardy clause forbids reprosecution after the court declared a mistrial, because, although Hill requested the mistrial, his request was induced by the prosecutor's overreaching. We conclude the trial court's finding that the prosecutor did not intend to provoke a request for a mistrial is not clearly erroneous, and we therefore affirm.

BACKGROUND

¶ 2. The criminal complaint alleged that Hill and two codefendants entered the dormitory room of a female student, confined her there against her will, and engaged her in six sexual acts without her consent. Based on those six sexual acts, each of the three men were charged with the same seven offenses, all as party to the crime under WlS. STAT. § 939.05 (1997-98) : five counts of first-degree sexual assault for being aided and abetted by one or more other persons and having nonconsensual sexual contact or intercourse with another person by use or threat of force or violence, contrary to WlS. STAT. § 940.225(l)(c); one count of second-degree sexual assault for being aided and abetted by one or more other persons and having nonconsen-sual sexual contact or sexual intercourse with another person contrary to § 940.225(2)(f); and one count of false imprisonment contrary to WlS. Stat. § 940.30. The information charged each of the three codefendants with each of these same seven crimes.

¶ 3. The three codefendants were tried together. After the State rested, Hill moved for dismissal of all seven charges. He argued that the State had failed to show use or threat of force and lack of consent on the sexual assault charges, and lack of confinement on the false imprisonment charge. The two codefendants joined in the motion. The trial court engaged the prosecutor in a lengthy colloquy directed at whether the State had established a prima facie case, with the court expressing a concern on the sufficiency of evidence regarding which defendant had engaged in particular acts. Then, because the trial court wanted to give the motion further consideration, it gave eách defendant the option of going forward with his defense that day, while the court took the motion under advisement, or waiting for the decision on the motion before going ahead with his defense. The defendants advised the court they did not plan on presenting evidence and formally rested their case before the jury. The court adjourned proceedings for the day and took the motion under advisement.

¶ 4. When court convened the next morning, the prosecutor requested permission to file an amended information that reduced the five counts of first-degree sexual assault, party to a crime, to five counts of second-degree sexual assault, party to a crime, and reduced the second-degree sexual assault charge, party to a crime, to fourth-degree sexual assault, party to a crime. The prosecutor explained that, in preparing the jury instructions for the State, which had not yet been filed, it appeared to him it was difficult to draft them in such a way that the jurors could understand the difference between the aiding and abetting that is an element of party to the crime under WlS. STAT. § 939.05, and the aiding and abetting that is an element of WlS. Stat. § 940.225(l)(c) and (2)(f). The effect of the amendment, in the prosecutor's view, was to remove the "being aided and abetted by others" element from each of the first six counts. This, the prosecutor stated, was the equivalent of asking for an instruction on the lesser included offense, except the greater offense was being removed entirely from the jury's consideration.

¶ 5. Hill objected to an amendment of the information after the close of evidence, and the codefendants joined in. Hill also argued that second-degree sexual assault is not a lesser included offense of the first-degree count charged in the original complaint, nor is fourth-degree sexual assault a lesser included offense of the second-degree count charged in the original complaint. He contended Wis. Stat. § 940.225(l)(c) and (2)(f) both require proof that the person charged is a principal who is aided and abetted by another, and if there is a failure of proof on that element it cannot be overcome by reducing the charge and relying on the "aiding and betting" option under the party to the crime statute, WlS. Stat. § 939.05. Hill and his codefendants then asked the court that, if it decided to allow the amendment to the information, it dismiss the amended information based on insufficient evidence. In the alternative, they requested a mistrial in order to give them an opportunity to prepare a defense to the amended information.

¶ 6. In reply, and in response to questioning from the court, the prosecutor argued that the aiding and abetting element in Wis. Stat. § 940.225(l)(c) and (2)(f) is essentially the same as that in the party to the crime statute, and the State need not prove who the principal was under either of these subsections.

¶ 7. The trial court granted the motion to amend the information, reasoning that under the case law there is generally no prejudice from allowing an amendment to a lesser included offense. The court denied the motion to dismiss the amended information on the ground of insufficient evidence but did dismiss the sixth and seventh counts on the ground of duplic-itousness. The court then concluded due process and general fairness required that the defendants have the opportunity to present evidence, if they wished, to the amended charges, and it gave them the option of going forward with other evidence that day or the next day. Hill and the two codefendants asked for a mistrial. The prosecutor opposed the mistrial, contending that even without the amended information, he could have argued both the greater and lesser included offenses, and the defendants should have known that. Therefore, the prosecutor asserted, the defendants were not prejudiced by the amended information: nothing new was added, and in fact, the first-degree charges were entirely eliminated.

¶ 8. The trial court concluded a mistrial was necessary. It accepted the position of the defendants that they needed time to assess whether to present evidence and, if so, to prepare it. The court decided it was not possible, given the court's calendar, both to allow a sufficient adjournment and to reconvene with the same jury. After the court made this ruling, the prosecutor asked that the original information be reinstated and the trial go forward as if no amended information had been permitted. The trial court denied this request, concluding the proceedings on the amended information had been extensive, and that reinstating the original information also raised a jeopardy question.

¶ 9. After Hill and his two codefendants were arraigned on the amended information and pleaded not guilty, Hill moved to dismiss the charges in the amended information on the ground that the prosecutor's overreaching had necessitated his request for a mistrial and, therefore, the State was barred from retrying him under the state and federal constitutional prohibitions against double jeopardy. Hill contended the record demonstrated the prosecutor wanted to retry the case because the trial was going badly for the State, and, therefore, the prosecutor intentionally created a situation in which Hill would ask for a mistrial and intentionally prejudiced Hill's right to complete the first trial. The court denied the motion. The court determined that the case was a complex one prosecuted by a recent law school graduate who failed to sufficiently understand the jury instructions, but, the court found, he did not intentionally cause Hill to request a mistrial. Therefore, the court concluded, the State was not barred from retrying Hill.

DISCUSSION

¶ 10. The Fifth Amendment to the United States Constitution protects against subjecting any person "for the same offense to be twice put in jeopardy." The Wisconsin Constitution provides the same protection in article I, section 8. See State v. Lettice, 221 Wis. 2d 69, 79, 585 N.W.2d 171 (Ct. App. 1998). The clause protects a defendant's right to have his or her trial completed by a particular tribunal. See id. It also protects a defendant from repeated attempts by the State, with all its resources and power, to convict an individual for an alleged offense, thereby subjecting him or her to embarrassment, expense, anxiety, and continuing insecurity. See id.

¶ 11. However, when a defendant successfully requests a mistrial, the general rule is that the double jeopardy clause does not bar a retrial, because the defendant is exercising control over the mistrial decision: since a mistrial ordinarily implicitly means a new trial, the defendant is choosing to be tried by another tribunal. See State v. Copening, 100 Wis. 2d 700, 709, 303 N.W.2d 821 (1981). The exception to this general rule, which Hill invokes, is that retrial is barred when a defendant moves for and obtains a mistrial due to prosecutorial overreaching. See id. at 714. To constitute "overreaching," the prosecutor's action must:

(1). . . be intentional in the sense of a culpable state of mind in the nature of an awareness that his activity would be prejudicial to the defendant; and (2).. . [be] designed either to create another chance to convict, that is, to provoke a mistrial in order to get another "kick at the cat" because the first trial is going badly, or to prejudice the defendant's rights to successfully complete the criminal confrontation at the first trial, i.e., to harass him by successive prosecutions.

Id. at 714-15 (emphasis added).

¶ 12. More succinctly put, doubly jeopardy bars a retrial when the defendant has successfully moved for a mistrial, if the prosecutor acted with intent to gain another chance to convict or to harass the defendant with multiple prosecutions. See State v. Quinn, 169 Wis. 2d 620, 625, 486 N.W.2d 542 (Ct. App. 1992). Determination of the prosecutor's intent involves a factual finding, which will not be reversed on appeal unless it is clearly erroneous. See id. at 626.

¶ 13. Hill contends on appeal that the trial court erred in determining the prosecutor's conduct did not constitute overreaching. He asserts the record shows the prosecutor intentionally provoked a mistrial because the State's case was going badly. The premise of Hill's argument that the State's case was going badly is that the fourth element of first-degree sexual assault under Wis. Stat. § 940.225(l)(c) — the defendant was aided and abetted by one or more persons and had sexual contact or sexual intercourse with the victim without consent — requires the State to prove the particular principal actor who was aided and abetted by one or more other persons. According to Hill, the victim was unable to identify which of the three defendants committed various acts, and she could not tell whether the three acts of intercourse were by different people. As an indication the court agreed with Hill's view of the proof that was required and the inadequacy of the evidence the State had presented, Hill points to: the court's comments on the second day of trial on the prosecutor's failure to turn in proposed jury instructions the preceding day, and the court's extensive questioning of the prosecutor in the hearing on the motion to dismiss at the close of the State's case.

¶ 14. Hill's analysis of the record continues in this way. When the court adjourned proceedings after the hearing on the motion to dismiss at the close of the State's case and took the motion under advisement, the prosecutor had not yet submitted any proposed instructions. The prosecutor was aware that the court was critical of the State's case, that the defense would not be putting on evidence, and that the defense would be making a motion to dismiss at the close of the case. Fearing an acquittal, the prosecutor decided to amend the information by reducing the charges, with the intent of inducing Hill to ask for a mistrial. Hill would be induced to do so, the prosecutor anticipated, because Hill had rested his case after defending different elements of proof than those in the amended information. Thé prosecutor knew Hill would not want to submit the charges in the amended information to the jury without putting on more evidence, and he knew Hill would not want to reopen the evidence because the jury would view that as indicating a weakness in the defendant's case.

¶ 15. The State, in response, disputes Hill's premise that the State must prove the identity of a particular principal as the fourth element of first-degree sexual assault charges under WlS. STAT. § 940.225(l)(c). The State contends it is necessary only that the State prove a particular defendant was either the principal actor or an aider and abettor of the particular charged act of sexual intercourse or contact. Therefore, according to the State, the court erred in granting a mistrial because the prosecutor correctly argued the amended information did not change the State's burden of proof: the State's theory throughout trial had been that all three codefendants participated in each charged act of sexual intercourse and sexual contact, either as a principal or as an aider and abettor. As an indication of the court's error in accepting Hill's position on the effect of the amended information, the State points to the court's reasoning for allowing the amendment — that generally there is no prejudice in allowing an amendment to a lesser included offense. Although the State recognizes it is unable to appeal from the mistrial ruling, it develops this argument to show that, since the amended information did not change the requirements of the State's proof, and, in fact, benefited the defendants by eliminating the first-degree charges, it could not have prejudiced Hill's trial strategy. The State also contends that the correctness of the prosecutor's view of the amended information shows his intent was, as he stated, to avoid the necessity of instructing the jury on the relation between the party to the crime liability under WlS. Stat. § 939.05 and the "aiding and abetting" requirement of § 940.225(l)(c) and (2)(f).

¶ 16. In addition to the correctness of the prosecutor's analysis of the effect of the amendment, the State points to these additional factors as supporting the trial court's finding that the prosecutor did not intend to provoke a mistrial: the prosecutor opposed the motion for a mistrial, and, after the court granted the mistrial, the prosecutor asked permission to reinstate the original information in order to avoid a mistrial.

¶ 17. We find it unnecessary to decide which party is correct on the question whether the first five counts in the amended complaint were lesser included offenses of the first five counts in the original complaint. If the prosecutor were correct, that would undoubtedly support a determination that he did not move to amend the information in order to provoke the defense to request a mistrial. However, if the prosecutor were incorrect, that does not necessarily support a determination that he intended to provoke a mistrial. See Copening, 100 Wis. 2d at 713-714 (prosecutor's persistently advancing an erroneous view in spite of trial court admonition is not sufficient to establish an intent to provoke a mistrial); see also Quinn, 169 Wis. 2d at 626-627 (prosecutor's misunderstanding of limits of cross-examination tends to negate an intent to provoke a mistrial through questioning). In this case, the prosecutor gave a detailed explanation for the amended information, responding to the trial court's questions and the defense counsel's objections. The trial court was in the best position to judge whether his theory — correct or not — -was a pretext for an underlying purpose of inducing the defense to request a mistrial, as Hill contends, or was his sincere view of the law. The trial court found it was the latter, and nothing in the record suggests this finding was clearly erroneous.

¶ 18. Moreover, the prosecutor's strenuous argument against the motion for a mistrial is an indication he did not intend to provoke the defendant to request one. See Quinn, 169 Wis. 2d at 626 ("had a mistrial been a goal of the prosecutor, we suspect he would not have so adamantly opposed the motion and defended his questioning"). The same is true of his proposal to withdraw the amended information and reinstate the original information to avoid a mistrial. See id. (prosecutor's suggestion that court give curative instruction rather than grant mistrial supports finding that prosecutor did not intend to provoke mistrial).

¶ 19. We are not persuaded otherwise by Hill's argument that the trial was going badly because the State was not able to prove which defendant committed which act, and the prosecutor anticipated an adverse ruling on the defendants' motion to dismiss. While a record that shows the State's case is going well, or that the prosecutor believes the State's case is going well, may support a finding that the prosecutor did not intend to provoke a mistrial, see id., the converse is not necessarily true. Assuming without deciding the prosecutor did perceive problems in proving the original charges or in prevailing on the motion to dismiss, the question remains whether the prosecutor's request to amend the information was intended to provoke a motion for a mistrial or was a sincere effort to remedy the problems he perceived — whether or not he had a correct understanding of the law and of how to try a case. As we have already stated, the trial court's finding that the prosecutor did not intend to provoke a mistrial is supported by the record.

By the Court. — Order affirmed.

       Hill petitioned for leave to appeal this interlocutory order pursuant to WlS. STAT. § 808.03(2) (1997-98). By order dated February 4,2000, we stayed proceedings in the trial court pending our disposition of the appeal. In that same' order we mistakenly stated we had already granted leave to appeal. We now grant the petition for leave to appeal the interlocutory order.

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

       Fourth-degree sexual assault occurs when a person has sexual contact with another without that person's consent. See WlS. Stat. § 940.225(3m).

       Wisconsin Stat. § 939.05 provides in part:
      Parties to crime. (1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
      (2) A person is concerned in the commission of the crime if the person:
      (a) Directly commits the crime; or
      (b) Intentionally aids and abets the commission of it; or
      (c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it.

       In the context of asking the prosecutor when the court would have the overdue instructions, the court stated to him:
      This is your lawsuit. . . . The instructions are not easy, I've looked at them. It's not clear form the complaint what's needed in those instructions, and they were due yesterday.


author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Shirlene Davis, Defendant-Appellant.
    Court of Appeals

      No. 99-2537-CR.

      Submitted on briefs June 15, 2000.

    Decided November 6, 2000.

    2000 WI App 270
    (Also reported in 622 N.W.2d 1.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul G. Bonneson oí Law Offices of Paul G. Bonneson, of Wauwatosa.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David H. Perlman, assistant attorney general.
    Before Wedemeyer, P.J., Fine and Curley, JJ.
   FINE, J.

¶ 1. Shirlene Davis appeals from judgments entered on her no-contest pleas convicting her of the unlawful delivery of heroin, see WlS. STAT. § 961.41(l)(d)l, maintaining a drug-trafficking place, see WlS. STAT. § 961.42, the unlawful possession of tetrahydrocannabinol, see § 961.41(3g)(e), and the possession with intent to deliver cocaine, see § 961.41(lm)(cm)l. She claims that the trial court erred in denying her motion to suppress evidence seized as a result of a no-knock execution of a search warrant. We affirm.

I.

¶ 2. A court commissioner in Milwaukee County issued a search warrant for heroin and related drug paraphernalia for the lower unit of a two-story house in Milwaukee where Davis lived. The warrant authorized police officers to enter the unit without first announcing their presence. A police detective's affidavit in support of the warrant averred that an informant had recently purchased heroin from a young woman on the porch of the house.

¶ 3. In support of the no-knock aspect of the warrant, the detective's supporting affidavit averred, in its pre-printed portion, that "drug traffickers are frequently armed with weapons, [and] controlled substances are quickly and easily destroyed." Additionally, the detective hand-printed the following reasons specific to the residence for which the warrant was sought: "A large dog was observed on the porch with several lookouts. Affiant knows lookouts and dogs are used to warn the trafficker of the approach of police to provide time for the trafficker to destroy evidence, arm themselves, and/or escape." The detective's affidavit also averred that "an informant" had previously purchased heroin from a "male at the same residence." Davis concedes that the affidavit supported the warrant's authorization for a no-knock entry.

¶ 4. In the late afternoon of the day after the court commissioner issued the warrant, a police officer dressed in casual street clothes went to the house for which the warrant was issued to make an undercover drug buy and to get a lay of the land for the officers who were going to execute the warrant. Davis answered the door, and let him into a "little hallway section" in the front of the house. The undercover officer gave ten dollars to Davis, who, according to his testimony at the suppression hearing, then "proceeded to walk down the hallway and turned left into an unknown room area." The officer also testified that although he did not see any weapons and neither saw nor heard any dogs, he "could hear at least three or four other people inside the room that [Davis] went into." He later told this to the officers who were going to execute the search warrant. Davis returned to the hallway with the heroin after ten or fifteen seconds. The undercover officer then asked for more heroin. He explained to the trial court that he "was trying to gain a little more time to see if I could hear any more or see anything else that could be helpful for the entry team after I had made the buy."

¶ 5. Officers executed the warrant minutes after the undercover officer reported his observations to them. The lead detective on the warrant-execution team testified that he decided to have the officers execute the warrant without knocking and announcing themselves even though thé undercover officer did not see any lookouts and did not see or hear a dog, because the undercover officer stayed in the front hall area, and thus was "unable to eliminate the risk factors" of lookouts or the dog.

¶ 6. The lead detective told the trial court that several days before the warrant was executed, he had seen a man come out of the house that was the subject of the search warrant with "a rather large dog," which he described as being "about a little over knee height" and weighing approximately 120 pounds with the musculature of "a pit bull or a terrier of some sort." The man walked the dog down the block and then returned to the house with the dog. They both went back into the house, and the dog was tied up on the porch.

¶ 7. The lead detective noted that even though the undercover officer had not seen the dog, it "very well could have been on the other side of the doorway inside the living room from where [the undercover officer] was standing." He also explained that although the lookouts were not outside the house when the undercover officer made his controlled purchases of heroin shortly before the warrant was executed, they could have been observing the street from the inside of the house. The lead detective told the trial court that heroin was "easy to destroy" because it is "a very light, powdery substance" with "a consistency of even lighter than talcum powder. If you were to put it in your hand and blow hard, it would form a cloud that — that would dissipate." He also testified that if heroin were put into water, "unless we catch the water before it goes down the drain, it's — it's impossible to recover."

¶ 8. As noted, the trial court denied Davis's motion to suppress. The trial court ruled that nothing the officers learned minutes before they executed the warrant negated their reasonable suspicion that by knocking and announcing their presence they would face possible danger from the dog, and the heroin would be destroyed before they could get to it.

II.

¶ 9. Davis does not dispute any material part of the officers' testimony at the suppression hearing. Rather, she contends that based on that testimony the officers did not have the right to break into her house without first announcing their presence to give her a chance to voluntarily let them in. Her contention presents an issue of law that we resolve de novo. See State v. Eason, 2000 WI App 73 ¶ 3, 234 Wis. 2d 396, 398, 610 N.W.2d 208,209 (application of facts to constitutional principles is subject to de novo review).

¶ 10. The general principle governing our decision is plain:

In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

Richards v. Wisconsin, 520 U.S. 385, 394 (1997). Irrespective of whether the search warrant authorizes a no-knock entry, the reasonableness of a no-knock entry is not determined at the time the warrant is issued but, rather, when it is executed. Id., 520 U.S. at 395; State v. Meyer, 216 Wis. 2d 729, 753, 576 N.W.2d 260, 271 (1998). The State must show "particular facts" that "support an officer's reasonable suspicion that exigent circumstances exist" to justify a no-knock entry. Id., 216 Wis. 2d at 751, 576 N.W.2d at 270. Whether law enforcement officers permissibly executed a search warrant by making a no-knock entry must be decided on a case-by-case basis. Id., 216 Wis. 2d at 751, 753, 576 N.W.2d at 270, 271. The "reasonable suspicion" standard, however, "is not high." Richards, 520 U.S. at 394; see also State v. Stevens, 213 Wis. 2d 324, 331, 570 N.W.2d 593, 596 (Ct. App. 1997) ("[W]e agree with the United States Supreme Court that any burden placed on the police as a result of the particularized showing requirement is only a modest one."), aff'd and remanded, 217 Wis. 2d 369, 580 N.W.2d 688 (1998). The State has made the requisite showing here.

¶11.

Richards reversed State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996), which established a blanket rule permitting the no-knock execution of search warrants in all felony drug cases. Recognizing that "while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree," the Supreme Court in Richards gave examples where a no-knock entry would not be justified:

For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly.

Id., 520 U.S. at 393. Although these brief examples cannot, of course, exhaust the many possible variables, these are the core criteria against which any no-knock entry must be evaluated. The facts here satisfy these criteria.

t ¶ 12. First, the officers could reasonably suspect that the other persons in the room entered by Davis when she went to get the heroin were either involved in or familiar with Davis's drug dealing; if they were not, it is unlikely that Davis would have kept in front of them what the ten- to fifteen-second interval indicates was an easily accessible stash of heroin. Second, just days before the execution of the search warrant, the lead detective had seen a large, pit-bull-type dog being brought out of and back into the house. Given that Davis had just sold two units of heroin to the undercover officer, it was not unreasonable for the detective to suspect that the dog was in the house, guarding the cache. Third, the detective explained how easily and quickly heroin could be destroyed. None of these circumstances were negated by the undercover officer's observations from the front part of the hallway minutes before the officers executed the warrant; all make the officer's no-knock entry constitutionally valid. Accordingly, we affirm.

By the Court. — Judgments affirmed.

      A defendant may appeal from an order denying a motion to suppress evidence even though the judgment of conviction rests on a guilty plea. WlS. STAT. § 971.31(10)

       In an alternative argument, the State urges that suppression would not be an appropriate remedy even if the officers should have first knocked on Davis's door and announced their presence. See United States v. Ramirez, 523 U.S. 65, 72 n.3 (1998) (recognizing that there must be a "causal relationship between [the no-knock entry] and the discovery [of the evidence sought to be suppressed] to warrant suppression of the evidence"). Our court, however, has held that the observation on that issue in Ramirez was dictum, and that suppression is the appropriate remedy if law enforcement officers unlawfully execute a warrant by making a no-knock entry when the circumstances do not justify it. See State v. Eason, 2000 WI App 73 ¶¶ 9-13, 234 Wis. 2d 396, 401-405, 610 N.W.2d 208, 211—213; see also State v. Stevens, 213 Wis. 2d 324, 332-337, 570 N.W.2d 593, 596-598 (Ct. App. 1997), aff'd and remanded, 217 Wis. 2d 369, 580 N.W.2d 688 (1998). We are bound by the published decisions of our court. Cook v. Cook, 208 Wis. 2d 166, 185-190, 560 N.W.2d 246, 254-256 (1997).


author: CANE, C.J.

text:
    Gregory T. Ross and Centrum II Associates, Plaintiffs-Respondents, v. Specialty Risk Consultants, Inc., Bonnie Lagiglio, Laura Weber-Taylor, Plaza Partners, Lila Mae Torello, Specialty Finance, Inc., Betty Loren-Maltese, Donald Felthouse, Barbara Rzasa, S&O Lock Service and Coleman Engineering Co. of Iron, Defendants, Town of Cicero, Defendant-Appellant, Anthony Marano Company and Josephine Marano, Defendants-Respondents.
    Court of Appeals

      No. 00-0089.

      Submitted on briefs August 14, 2000.

    Decided November 7, 2000.

    2000 WI App 258
    (Also reported in 621 N.W.2d 669.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas M. Olejniczak and Robert M. Charles of Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Kim A. Coggins, of Coggins & Wolfe of Menominee, Michigan.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Howard B. Tolkan of McCarty, Lenz & Tolkan, S.C. of Milwaukee.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   CANE, C.J.

¶ 1. The Town of Cicero appeals a summary judgment of foreclosure discharging its lis pendens and dismissing it as a defendant. The Town argues that the court erred by (1) discharging its lis pendens; (2) dismissing it as a party; and (3) entering summary judgment in favor of Centrum II Associates and the Maraño Company.

¶ 2. The primary issue is whether the Town's action in Illinois for a constructive trust on property in Wisconsin permits it to file a lis pendens on that property. We conclude that the Town's action to impose a constructive trust on real estate is one that might change interests in real property under WlS. Stat. § 840.l0(l)(a) and, therefore, the Town's lis pendens is permitted. Also, because the Town claimed an interest in the subject matter of the litigation, the court should not have dismissed the Town as a party to the foreclosure action. See WlS. STAT. § 803.03(l)(b). Whether the Town's answer, affidavits and supporting documents raise disputes of material fact was not addressed by the trial court. We therefore reverse the summary foreclosure judgment and remand to permit the Town to raise its defenses to the summary judgment motion.

FACTS

¶ 3. In 1997, the Town filed a complaint in Illinois against Specialty Risk Consultants, Inc., and Plaza Partners, among others, alleging that they participated in an embezzlement scheme to defraud millions of dollars from the Town's self-insurance program. The Town alleged in the Illinois suit that Specialty Risk and Plaza Partners used some of the embezzled funds to acquire the Four Seasons Golf Course in Marinette County, Wisconsin. The Town claimed damages and the right to equitable relief in the form of a constructive trust over the golf course. The same year, the Town filed several lis pendens pertaining to the golf course in Marinette County, providing notice of the pending Illinois lawsuit.

¶ 4. In 1998, Centrum II Associates and Gregory Ross (collectively, Centrum) commenced the foreclosure action giving rise to this appeal. Centrum claimed that Plaza Partners had defaulted on its promissory note secured by a mortgage on the golf course. The complaint also alleged that Plaza Partners had quit-claimed the golf course to Specialty Risk, which owned record title. The complaint further alleged that the Town of Cicero "may claim some right, title and interest in the subject property by virtue of various Lis Pendens notices."

¶ 5. Also named as defendant was the Anthony Maraño Company, which had received a note from Plaza Partners secured by a mortgage on the golf course, and Josephine Maraño. The Maraño Company had assigned its note and mortgage to Josephine. The Maraño Company and Josephine (collectively, Maraño) cross-claimed for a judgment of foreclosure.

¶ 6. The Town answered, denying the complaint's allegations and the cross-claim, and alleged as an affirmative defense that Centrum did not loan funds to Plaza Partners. It also alleged that Plaza Partners and Specialty Risk used funds belonging to the Town to pay to Centrum installments on the mortgage it sought to foreclose. The Town complained that its discovery attempts were thwarted by several parties' refusals to answer questions on the basis of their Fifth Amendment privileges.

¶ 7. Centrum and Maraño moved for summary judgments of foreclosure. The Town objected and filed affidavits and supporting documents detailing the allegations of the pending Illinois lawsuit that sought the constructive trust over the golf course. The Town also asserted that Centrum had not made the advances contemplated by the note. Additionally, the Town contended that the mortgage documents were defective because they failed to name Centrum as mortgagee. It also claimed that because the Town's money was used to purchase the golf course, the Maraño mortgage could not be a purchase money mortgage as alleged.

¶ 8. The trial court determined the allegations of the complaint were proven and there were no disputes of material fact. It entered summary judgment of foreclosure. It concluded that because the Town was not a judgment creditor, it was therefore "at best a contingent judgment creditor." The court stated: "I don't think you have any standing in this case." The court ruled that the "Town of Cicero lacks an interest in the Real Property and based upon the lack of such interest, the Notices of Lis Pendens previously filed by the Town of Cicero should be discharged and the Town of Cicero dismissed as party to this proceeding." The Town appeals the summary judgment of foreclosure.

STANDARD OF REVIEW

¶ 9. When reviewing a summary judgment, we perform the same function as the trial court and our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. See WlS. STAT. § 802.08(2). The issue here requires us to construe WlS. STAT. § 840.10. On questions of statutory construction, we do not defer to the circuit court's interpretation. See Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 939, 480 N.W.2d 823 (Ct. App. 1992).

¶ 10. In construing a statute, we are to give effect to the legislature's intent. See id. To ascertain legislative intent, we look first to the statute's language. See id. Here, because there is no claim that the statute is ambiguous, we apply its plain language according to its ordinary and accepted meaning. See id.

LIS PENDENS

¶ 11. Wisconsin Stat. § 840.10 provides that in an action where relief is demanded affecting real property, which "might confirm or change interests in the real property," the plaintiff shall file in the county where the land is located a lis pendens containing the names of the parties, the object of the action and a description of the land affected. The test to be applied "is only whether the relief demanded 'might confirm or change interests in the real property.'" Interlaken Serv. Corp. v. Interlaken Condo. Ass'n, 222 Wis. 2d 299, 307, 588 N.W.2d 262 (Ct. App. 1998). "The statute further provides that from the time of filing of the lis pendens a subsequent purchaser or encumbrancer shall be bound by the proceedings in the action to the same extent and in the same manner as if a party thereto." Belleville State Bank v. Steele, 117 Wis. 2d 563, 566-67, 345 N.W.2d 405 (1984). The primary purpose of § 840.10 is to protect the courts' and the litigants' interests in the finality of the judgment, as well as the additional objective of giving prospective purchasers and encumbrancers notice of pending actions so that they may avoid "buying a lawsuit." Id.

¶ 12. Our supreme court has concluded that interpreting Wis. STAT. § 840.10 to include actions filed in courts outside the state furthers the legislative objectives without unduly burdening the transfer of real property in this state. See Belleville State Bank, 117 Wis. 2d at 576. Although a judicial decree cannot change title to real property that is beyond the territorial limits of the court's jurisdiction:

Nevertheless this court has recognized that a divorce court outside this state having personal jurisdiction of a party may order that party to execute a conveyance of real property located in Wisconsin. Because we have recognized that title to real property located in Wisconsin may be affected, albeit indirectly, by a divorce judgment of a sister state, we conclude that a foreign divorce action in which relief is demanded affecting described real property in Wisconsin falls within the purview of sec. 840.10(1).

Id. at 577.

CONSTRUCTIVE TRUST

¶ 13. The first issue we must address is whether the Illinois action seeking the imposition of a constructive trust over the golf course is one that "might . . . change interests in the real property" within the meaning of Wis. Stat. § 840.10. We conclude that it is. "A constructive trust arises whenever another's property has been wrongfully appropriated and converted into a different form." Warsco v. Oshkosh Savings & Trust Co., 190 Wis. 87, 90, 208 N.W. 886 (1926) (quoting 3 Pomeroy, Equity Jurisprudence § 1051, at 2397-2401 (4th ed. 1918)). It is an equitable device employed to prevent fraud or abuse of a confidential relationship and is implied to accomplish justice. See In re Massouras' Estate, 16 Wis. 2d 304, 312, 114 N.W.2d 449 (1962).

¶ 14. "In the constructive trust case, the defendant has legal rights in something that in good conscience belongs to the plaintiff." 1 Dan B. Dobbs, Law of Remedies § 4.3(1), at 587-88 (2d ed. 1993). "The property is 'subject to a constructive trust,' and the defendant is a 'constructive trustee.'" Id. "The defendant is thus made to transfer title to the plaintiff who is, in the eyes of equity, the true 'owner.'" Id. "When equity imposes a constructive trust upon an asset of the defendant, the plaintiff ultimately gets formal legal title." Id. at § 4.3(2), at 589.

¶ 15. A constructive trust will be imposed only in limited circumstances. Legal title must have been obtained by means of fraud, commission of wrong or by any form of unconscionable conduct and must be held by someone who in equity should not be entitled to it. See Wilharms v. Wilharms, 93 Wis. 2d 671, 678-79, 287 N.W.2d 779 (1980). It is not necessary that the person against whom the constructive trust is to be imposed be the wrongdoer or know of wrongdoing initially. If other elements for imposing a constructive trust have been satisfied and the holder of legal title is not a bona fide purchaser, a constructive trust may be imposed. See id.

¶ 16. A constructive trust imposed on wrongfully obtained property follows the property or its proceeds.

If one person having money or any kind of property belonging to another in his hands wrongfully uses it for the purchase of lands, taking the title in his own name, .• . . equity impresses a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrongdoer, but as long as it can be followed and identified in whosesoever hands it may come, except into those of a bona fide purchaser for value and without notice; and the court will enforce the constructive trust for the benefit of the beneficial owner or original cestui que trust who has thus been defrauded. . . . Wherever one person has wrongfully taken the property of another, and converted it into a new form, or transferred it, the trust arises and follows the property or its proceeds.

Warsco, 190 Wis. at 90; see also Truelsch v. Northwestern Mut. Life Ins. Co., 186 Wis. 239, 202 N.W. 352 (1925).

¶ 17. An interest in land comprehends "every kind of claim to land which can form the basis of a property right." Weber v. Sunset Ridge, 269 Wis. 120, 126, 68 N.W.2d 706 (1955) (citations omitted). An action seeking the imposition of a constructive trust may ultimately change legal title. See Dobbs, supra, at 587-88. It follows, therefore, that a claim for the imposition of a constructive trust on real estate is an action seeking relief that "might confirm or change interests in the real property," as that term is used in Wis. STAT. § 840.10.

¶ 18. In a case parallel to ours, the Superior Court of New Jersey, Appellate Division, reached similar results. In Polk v. Schwartz, 399 A.2d 1001 (N.J. Super. 1979), the owners of a nursing home facility recorded a lis pendens in connection with a suit seeking a constructive trust to be imposed on properties the defendants acquired in Atlantic City. The suit alleged that the defendants conspired to deplete the nursing home facility of funds by a variety of methods, including drawing excessive salaries and converting $180,000 of patients' personal Medicaid funds. See id. at 1003. The suit alleged that the defendants used the wrongfully obtained funds to acquire residences and businesses in Atlantic City. See id. at 1003-04.

¶ 19. In holding that the trial court erroneously discharged the lis pendens, the New Jersey court explained:

It is evident that the trial judge's concept in this case was that plaintiffs cause of action was essentially, if not exclusively, for the recovery of money damages. But this would not be so if the . . . complaint sets forth a sufficient cause of action for the imposition of a constructive trust. In this regard it is to be noted that a claim for money damages does not necessarily preclude the assertion of a claim for alternate or additional equitable relief....
There is no doubt that an action to impress a constructive trust on realty affects title to that property, so that a notice of Lis pendens may be filed under a statute such as ours.

Id. at 1004.

¶ 20. The Polk case is instructive because it focuses on the trial court's duty to review only the pleadings to determine whether they state a claim that might conform or change an interest in real estate. See id. The merits of the litigation or whether the plaintiff will ultimately prevail are not relevant on a motion to discharge a lis pendens. See id. at 1005. "It has been held that the propriety of a Lis [Pjendens must stand on the allegations in the pleadings." Id. at 1004. The court must consider only whether the complaint states a cause of action to impose a trust and, for that purpose, the complaint's allegations are taken as true. See id. at 1004-05.

¶ 21. Consistent with our obligation under summary judgment procedure to review the pleadings de novo, we are satisfied that the Town's Illinois action stated a claim to impose a constructive trust on the golf course. That the suit for the constructive trust was filed in Illinois and not Wisconsin is of no consequence. A "court outside this state having personal jurisdiction of a party may order that party to execute a conveyance of real property located in Wisconsin." Belleville State Bank, 117 Wis. 2d at 577. To be consistent with Belle-ville, we must conclude WlS. STAT. § 840.10 permits a lis pendens to be recorded in connection with an out-of-state suit seeking title or possession of property in Wisconsin by means of a constructive trust. Therefore, we conclude that the circuit court should not have discharged the Town's lis pendens.

¶ 22. We agree with concerns that the application of lis pendens must be strictly limited to actions directly seeking to obtain title to or possession of specific real property. See S. Utsunomiya Enters. v. Moomuku Country Club, 866 P.2d 951, 966 (Haw. 1994). As one California court pointed out, "[t]he potential for abuse is obvious." BGJ Assocs. v. Superior Court, 75 Cal.App.4th 952, 969, 89 Cal.Rptr.2d 693, 704 (Cal. App. 1999). Once a lis pendens is filed, it clouds the title and effectively prevents the property's transfer until the litigation is resolved or the lis pendens is discharged. See id. at 967, 89 Cal.Rptr.2d at 702. Therefore, "this ruling must not be interpreted by creditors as a green light to tie up real property by filing baseless or questionable fraudulent transfer complaints, recording notices of lis pendens, and waging prolonged battles over expungement." Hunting World, Inc. v. Superior Court, 22 Cal.App.4th 67, 74, 26 Cal.Rptr.2d 923, 928 (Cal. App. 1994).

¶ 23. Here, the facts distinguish the Illinois suit from one seeking a constructive trust remedy solely as "collateral" for money damages. See BGJ Assocs., 75 Cal.App.4th at 966-67, 89 Cal.Rptr.2d at 702. This is an important distinction. In Wisconsin, in addition to criminal penalties, there is a cause of action for slander of title if a false, sham, or frivolous lis pendens is filed. See WlS. Stat. §§ 706.13 and 943.60; see also State v. Minniecheske, 118 Wis. 2d 357, 359, 347 N.W.2d 610 (Ct. App. 1984).

¶ 24. Centrum and Maraño also contend that the trial court properly discharged the lis pendens because the Town failed to file proof of service of the Illinois summons or complaint. We reject this argument. First, it does not appear that it was raised at the circuit court and it is not accompanied by record citation. Therefore it need not be considered. See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990). In any event, it rests on a misinterpretation of WlS. STAT. § 840.10(1)(a). It erroneously implies that the Town was required to serve Centrum and Maraño with the Illinois summons and complaint and to file the proof of service in the Wisconsin mortgage foreclosure suit. All that is required under § 840.10(1)(a) is that the Town properly serve the Illinois defendants and timely file proof of service in the Illinois action.

¶ 25. Centrum and Maraño also fault the Town for failing to file a lawsuit, counterclaim or cross-claim in Wisconsin seeking a constructive trust. They cite no legal authority supporting their argument that the Town could not pursue its claim for relief in the Illinois action and, therefore, we do not consider it further. See State v. Flynn, 190 Wis. 2d 31, 58, 527 N.W.2d 343 (Ct. App. 1994).

PARTIES AND STANDING

¶ 26. The Town argues that the court should not have dismissed it as a party defendant. We agree. WISCONSIN Stat. § 803.03 provides for the joinder of persons needed for just and complete adjudication. It states in part:

(1) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if:
(b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:
1. As a practical matter impair or impede the person's ability to protect that interest; or
2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest.

Id.

¶ 27. We conclude that because the Town was served with a summons and complaint and the Town's answer, affidavits and supporting documents demonstrate that it claimed an interest in the golf course, it should not have been dismissed as a party. The disposition of the mortgage foreclosure in its absence would, as a practical matter, impede the Town's ability to protect that interest. As a result, the Town should have remained as an interested party to the foreclosure action.

¶ 28. We observe that dismissing the Town as a party would have left it with the same rights it would have had at the commencement of the foreclosure proceeding. See Wisconsin Fin. Corp. v. Garlock, 140 Wis. 2d 506, 513, 410 N.W.2d 649 (Ct. App. 1987). Therefore, the judgment of foreclosure would not have foreclosed its alleged interest in the mortgaged property.

¶ 29. We further conclude that the Town has standing. " 'Standing' is usually a matter of judicial policy." Wisconsin Hosp. Ass'n v. Natural Resources Bd., 156 Wis. 2d 688, 700, 457 N.W.2d 879 (Ct. App. 1990). Whether a plaintiff has standing is a question of law that we decide independently of the trial court's views. See id. The question is whether "a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." State ex rel. First Nat'l Bank v. M & I Peoples Bank, 95 Wis. 2d 303, 307-08, 290 N.W.2d 321 (1980).

¶ 30. The Town's answer, affirmative defenses and responses to the summary judgment motion demonstrate its claim that the golf course, in good conscience belongs to the Town, "subject to a constructive trust," and Plaza Partners and Specialty risk were the "constructive trustee[s]." See Dobbs, supra, at 587-88. The Town essentially sought a judgment ordering transfer of title to it as, in the eyes of equity, "the true 'owner.'" Id. We are satisfied that the Town demonstrated a sufficient stake in the mortgage proceedings to support standing.

SUMMARY JUDGMENT OF FORECLOSURE

¶ 31. Finally, the Town contends that the court, without considering the Town's opposition, entered summary judgment in favor of Centrum and Maraño. It argues that it raised material issues of fact concerning the validity of the mortgage documents, consideration therefor, and the amounts allegedly due. Centrum and Maraño respond to the effect that the Town waived this issue because it filed no affirmative defense or cross-claim.

¶ 32. The record fails to support this argument. The Town filed an answer denying material allegations of the complaint and containing its affirmative defense. It also filed affidavits and supporting documents, opposing the summary judgment motions. Centrum and Maraño fail to provide legal authority to support their proposition that a mortgage foreclosure cannot be defended by filing an answer and affirmative defenses. See State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980). Accordingly, we reject their waiver argument.

¶ 33. Maraño also contends that summary judgment was properly entered based solely on the pleadings because in its answer to Marano's cross-claim, the Town neglected to deny Marano's allegation that its rights were superior to all other parties in the action. We disagree. In its answer to the cross-claim, the Town disputed the allegation of default and the amounts due. Because material issues of fact were disputed, summary judgment could not have been entered based solely on the pleadings.

¶ 34. Maraño and Centrum raise a number of arguments that summary judgment was properly entered in its favor. The circuit court, however, did not consider the Town's defenses to the complaint and the summary judgment motion because it dismissed the Town as a party. Because the Town was denied an opportunity to present its defenses, we reverse the foreclosure judgment and remand this matter to the trial court to determine whether material issues of fact preclude summary judgment of foreclosure.

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

      A11 references to the Wisconsin Statutes are to the 1997 — 98 version.

       In its statement of facts, Centrum contends that even if the Town were to obtain a constructive trust, its interest would be subordinate to the mortgage holders. This is a legal issue that has yet to be litigated. Because the parties have not briefed the issue, and because it was not ruled on by the circuit court, we do not address it.

       Although some courts have held that whether to discharge a lis pendens is a matter of trial court discretion, for example, see White v. Wensauer, 702 P.2d 15, 17—18 (Okla. 1985), neither party has discussed this issue and therefore, we do not address it. See Waushara County v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 (1992) (We have no duty to consider any issues other than those presented to us.).

       Wisconsin Stat. § 840.10 provides in part:
      (1) (a) In an action where relief is demanded affecting described real property which relief might confirm or change interests in the real property, after the filing of the complaint the plaintiff shall present for filing or recording in the office of the register of deeds of each county where any part thereof is situated, a lis pendens containing the names of the parties, the object of the action and a description of the land in that county affected thereby.
      In any action if the defendant asks relief on a counterclaim or cross-complaint, which contains a legal description of the real estate and seeks such relief, after the filing of the counterclaim or cross-complaint the defendant shall present for filing or recording a lis pendens. From the time of filing or recording every purchaser or encumbrancer whose conveyance or encumbrance is not recorded or filed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the proceedings in the action to the same extent and in the same manner as if the purchaser or encum-brancer were a party thereto. In any such action in which a lis pendens has been filed or recorded, if the party who presents for filing or recording the lis pendens fails for one year after the filing or recording thereof to serve and file proof of service of the summons or the counterclaim or cross-complaint on one or more of the adverse parties, the lis pendens shall be void, and upon motion and proof the court may order it discharged. Judgment shall not be entered in favor of the party required to present for filing or recording a lis pendens until 20 days after the lis pendens has been filed or recorded.
      (3) The lis pendens may be discharged upon the condition and in the manner provided by s. 811.22 for discharging an attachment or by s. 806.19 (1) (a) for satisfying a judgment. An instrument filed before May 1, 1951, but in accordance with this subsection shall be a discharge of the lis pendens described therein.

       "The common law rule of lis pendens, a phrase that literally means a pending lawsuit, comports with the maxim Pendente lite nihil innovetur: 'Nothing should be changed during the pendency of an action.'" Belleville State Bank v. Steele, 117 Wis. 2d 563, 571, 345 N.W.2d 405 (1984). A lis pendens "is a legal notice to any such person not having knowledge of the proceedings at the time his interest was procured or derived. As to the parties to the action... who appear and participate in the proceedings, the lis pendens serves no real purpose and actually has no application." Hailey v. Zacharias, 39 Wis. 2d 536, 537-38, 159 N.W.2d 667 (1968).

       Some Wisconsin cases hold that a finding of wrongdoing is essential to impose a constructive trust. See First Nat'l Bank v. Nennig, 92 Wis. 2d 518, 539-40, 285 N.W.2d 614 (1979); Krueger v. Rodenberg, 190 Wis. 2d 367, 377, 527 N.W.2d 381 (Ct. App. 1994). This view is not universally accepted. See In re Massouras' Estate, 16 Wis. 2d 304, 313, 114 N.W.2d 449 (1962); 1 Dan B. Dobbs, Law of Remedies § 4.3(1), at 587-88 (2d ed. 1993). We need not resolve the conflict because here the Town based its claim of a constructive trust on wrongdoing.

      In Truelsch v. Northwestern Mut. Life Ins. Co., 186 Wis. 239, 252, 202 N.W. 352 (1925):
      It would be a signal failure of justice if one who has become a constructive trustee by reason of wrongfully receiving or securing the property of another could escape the consequences of his acts by changing the form of the property thus acquired. Hence, as between him and the cestui que trust, the latter may pursue the funds into the new investment and charge that investment with the trust. He may also assert and enforce the same right against third parties to whom the property has been transferred with knowledge of the trust or who have paid no consideration for it, provided the identity of the trust fund can be established.

         See also 54 C.J.S. Lis Pendens § 28, at 411 (1987) ("[T]he propriety of filing the notice [of lis pendens] will be determined from the pleadings alone."). Unless the complaint clearly recites a cause of action which, under the statute, does not permit the filing of a notice of lis pendens (e. g., an action to recover judgment for money or damages only), it is not appropriate for a defendant to move directly to discharge the notice. See Polk v. Schwartz, 399 A.2d 1001, 1005 (N.J. Super. 1979). Rather, a defendant should move "either to dismiss the complaint or pertinent counts thereof for failure to state a claim upon which relief can be granted or for summary judgment, which motion would [include] a request to discharge the notice of Lis [P]endens." Id.

       Count X of the Illinois complaint includes allegations that Specialty Risk and Specialty claims received more than $3,000,000 in overpayments and Plaza Partners and its general partners received at least $1,400,000, which in equity and good conscience belongs to the Town. It further alleges:
      On information and belief, Plaza Partners spent the money it received from Cicero on the Golf course as part of the scheme devised and furthered by members of the Specialty Group, the Individual Defendants [including Specialty Risk Consultants, Inc.,] to defraud Cicero. Cicero is entitled to the imposition of a constructive trust on the Golf course or the proceeds thereof.

        The complaint sought relief in the form of damages and the imposition of a constructive trust. A claim for money damages does not preclude alternate or additional equitable relief. See Briggson v. Viroqua, 264 Wis. 47, 54-57, 58 N.W.2d 546 (1953).

       See also Backman v. Packwood Inds., 489 S.E.2d 135, 136-37 (Ga. App. 1997).

       For this reason, California courts have approached this issue with mixed results. See BGJ Assocs. v. Superior Court, 75 Cal.App.4th 952, 969, 89 Cal.Rptr.2d 693, 704 (Cal. App. 1999), and cases cited therein.

       Also, Maraño concedes in its appellate brief that "The Town of Cicero did provide a scintilla of legally sufficient evidence that Maraño was involved in a fraudulent scheme or that they did not provide the sums of money they sought to recover."


author: SNYDER, J.

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

      No. 99-2580-CR.

      Oral argument July 11, 2000.

    Decided November 8, 2000.

    2000 WI App 271
    (Also reported in 622 N.W.2d 4.)

      On behalf of the defendant-appellant, there were briefs and oral argument by Stephen D. Willett of Stephen D. Willett, S.C. of Phillips.
    On behalf of the plaintiff-respondent, there was a brief by Thomas J. Balistreri, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Thomas J. Balistreri, assistant attorney general.
    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review granted.

   SNYDER, J.

¶ 1. Carl R. Kramer appeals from a judgment of conviction for two violations of the criminal commercial gambling statute, WlS. STAT. § 945.03(5) (1995-96), and from orders denying his motions for suppression and dismissal of the felony charges. Kramer contends that he lacked the requisite intent to commit the crimes, that the applicable criminal statutes are unconstitutionally vague, that the anticipatory search warrant executed at his establishment on December 5, 1996, was defective and required suppression of the evidence, and that he was the victim of selective prosecution. We agree that Kramer was selectively prosecuted and reverse the order denying his motion to dismiss and the judgment of conviction.

STATEMENT OF FACTS

¶ 2. The essential facts concerning Kramer's selective prosecution claim are undisputed. Kramer owned and operated the Dog House Saloon in the Village of North Fond du Lac (the Village). On July 12, 1996, two Village police investigators went to Kramer's saloon and received video poker machine payouts from the bar. On September 2, 1996, a letter signed by the Fond du Lac County District Attorney and the Fond du Lac County Sheriff (the warning letter) was sent to all Fond du Lac county bar owners except those in the Village. The warning letter advised in relevant part:

Some jurisdictions have already chosen to confiscate [the video poker] machines because of their mere presence, but the Fond du Lac County Sheriffs Department and the District Attorney's Office have been patient with the issue because of the vagueness of the law. The Court of Appeals has now established a precedent which will stand unless a higher court overrules it. In the future, Deputies will make note of who has the machines when they do their routine tavern checks. If we receive a complaint that payouts of any kind are being made in an establishment, we will commence a commercial gambling investigation. You should be aware that a conviction for commercial gambling under state statute [§ ] 945.03 is a felony. The law also provides for such matters to be forwarded to the licensing authority for revocation of the establishment's liquor license.

¶ 3. On December 4, 1996, Village police officers swore out an affidavit in support of a search warrant, alleging that on July 12, 1996, video poker machine payouts were received from the Dog House Saloon. An anticipatory search warrant was granted, allowing the police to search Kramer's establishment if officers received a second video poker payout. On December 4, 1996, two investigators from the Lake Winnebago Area Metropolitan Enforcement Group Drug Unit received payouts after playing a machine at the Dog House Saloon. On December 5, 1996, the search warrant was executed and the evidence obtained during this search was used against Kramer, resulting in his commercial gambling convictions.

STANDARD OF REVIEW

¶ 4. A trial court's historical findings of fact are reviewed under the clearly erroneous standard. See State v. McCollum, 159 Wis. 2d 184, 193, 464 N.W.2d 44 (Ct. App. 1990); see also WlS. Stat. § 805.17(2). However, we review de novo whether the trial court applied the correct legal standard to determine whether those historical facts give rise to a claim of selective prosecution. See McCollum, 159 Wis. 2d at 194. If the trial court applied the correct legal standard, then we review its factual findings "under the clearly erroneous standard as to whether the [S]tate's action in investigating, arresting and charging... was motivated by an intent to discriminate . . . Id. Once a prima facie showing of selective prosecution is established, whether the State has provided a rational justification for the selective prosecution is a question of law which we review de novo. See State v. Barman, 183 Wis. 2d 180, 190-91, 515 N.W.2d 493 (Ct. App. 1994).

DISCUSSION

¶ 5. State v. Hahn, 203 Wis. 2d 450, 553 N.W.2d 292 (Ct. App. 1996), decided on July 18, 1996, and referenced in the warning letter, held that a video poker machine is either a gambling machine or an amusement machine, depending upon whether money is paid to a user. Hahn, released after the July 12,1996 law enforcement visit to the Dog House Saloon, prompted a change in the Fond du Lac county prosecution policy that all but the Village bar proprietors were cautioned about via the September 2, 1996 warning letter. Because receipt of the warning letter would have allowed Kramer to avoid the commercial gambling criminal prosecutions and convictions, he contends that he is the victim of selective prosecution.

¶ 6. To establish a claim of selective prosecution, the defendant must establish a prima facie case that (1) he or she is a member of a class being prosecuted solely because of race, religion, color or other arbitrary classification, or that he or she alone is the only person who has been prosecuted under this statute; and (2) the prosecution is based on either a desire to prevent the exercise of constitutional rights or motivated by the personal vindictiveness of the prosecutor or the responsible administrative agency recommending prosecution. See Barman, 183 Wis. 2d at 188-89. In other words, Kramer must demonstrate that his prosecution had a discriminatory effect and a discriminatory, purpose. Once Kramer establishes a prima facie case of selective prosecution, the burden shifts to the prosecutor to demonstrate a valid exercise of prosecutorial discretion. See id. at 187.

¶ 7. The State argues that there was no discriminatory effect upon Kramer because all Village tavern owners who allegedly violated the commercial gambling statute were prosecuted and there were no similarly situated taverns outside the Village. The State contends that there was "no reason to believe that tavern owners outside North Fond du Lac even had video slot machines, much less that they were using any such machines for gambling." In essence, the State argues that all the commercial gambling occurring in Fond du Lac county took place solely in the Village of North Fond du Lac.

¶ 8. This assertion belies common sense. If there was no reason to believe that tavern owners outside the Village had video gambling machines, why did the sheriff s department and the district attorney send everyone but the Village tavern owners a warning letter? The mass mailing of the warning letter to most Fond du Lac county taverns strongly suggests that the sheriffs department and the district attorney's office suspected that many Fond du Lac county taverns possessed video gambling machines and thus needed warnings. The absence of prosecutions outside the Village does not prove that there were no similarly situated tavern owners outside of the Village, but suggests that those tavern owners who received the warning letter were prudent enough to heed its warning.

¶ 9. Here, the trial court identified the correct legal standard when it stated that "selective prosecution can be raised when the member who is being prosecuted is a member of a protected class such as race, religion, color or other arbitrary classification." However, we conclude that the trial court's finding that the warning letter did not create an arbitrary classification is clearly erroneous. The September 2, 1996 letter itself, signed by the district attorney, created arbitrary classifications of tavern owners: those who received the warning letter and those who did not. We conclude that the trial court correctly stated that "the bottom line is that the — a letter from the DA and the sheriff [is] not constitutionally required. People are expected to follow the law and obey the law." However, where the district attorney's office undertakes to warn the public about changes in prosecution policy, it assumes the responsibility of treating’ all affected citizens equally.

¶ 10. The only criminal prosecutions for commercial gambling occurred in taverns in the Village — the only Fond du Lac county taverns that were not sent the warning letter. Kramer did not receive the warning letter and he was prosecuted for the crime addressed in it. We are satisfied that the letter had a discriminatory effect.

¶ 11. Kramer has established a prima facie case of discriminatory effect. He must also establish a prima facie case of discriminatory purpose. See id. at 188-89. This discriminatory purpose must be "more than . . . intent as awareness of consequences"; it must be " 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Id. at 190 (citation omitted).

¶ 12. Kramer contends that the warning letter itself evidences a discriminatory purpose because the letter was an intentional act of exclusion on the part of the district attorney's office. Through its failure to send the warning letter to certain communities, Kramer argues, the district attorney's office demonstrated its intent to discriminate against these communities. We agree. The inequitable distribution of the warning letter constitutes prima facie evidence of a purposeful intent to discriminate against Village tavern owners.

¶ 13. Kramer has thus established a prima facie case of selective prosecution. The State now must demonstrate that the uneven distribution of the warning letter constitutes a valid exercise of prosecutorial discretion. See id. at 187.

¶ 14. The State argues that the warning letter was a valid exercise of discretion because the district attorney left primary responsibility for the letter in the hands of the sheriff s department. The State argues that because the sheriff s department, not the district attorney's office, was primarily responsible for the warning letter, the recipients of the warning letter represent the jurisdiction of the sheriffs department, and thus the letter was sent only to taverns normally inspected by the sheriffs department. The State contends that the letter communicates a new policy by the sheriff s department to investigate gambling activity.

¶ 15. This explanation contradicts the plain language of the letter. The warning letter states that "henceforth [investigation and prosecution of gambling offenses] will be the policy of the Fond du Lac County Sheriffs Department and the District Attorney's Office." (Emphasis added.) While the State attempts to attribute the distribution of the letter to the sheriff department's jurisdiction, it fails to justify the letter's distribution in light of the wider jurisdiction of the district attorney. The warning letter articulated a joint district attorney and sheriffs department policy regarding commercial gambling. The warning letter was signed jointly by both the district attorney and the sheriff. Consequently, the district attorney and the sheriff must take joint responsibility not only for the letter's content but also for its distribution. The State's arguments fail to demonstrate a valid exercise of prosecutorial discretion; thus, Kramer's prima facie showing of selective prosecution has not been rebutted.

CONCLUSION

¶ 16. Kramer has made a prima facie showing of selective prosecution because (1) only members of the arbitrary class of bar owners in the Village were prosecuted, and (2) this arbitrary class was created by the warning letter. The State has failed to rebut this claim by demonstrating a valid exercise of prosecutorial discretion. The State has not offered a valid reason for the inequitable distribution of the warning letter. Therefore, we hold that Kramer was selectively prosecuted and reverse the order denying his motion to dismiss and the judgment of conviction.

By the Court. — Judgment and orders reversed.

      A11 references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.

       We will not address Kramer's remaining arguments. We need not address other issues raised where a decision on one point disposes of the appeal. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).


author: NETTESHEIM, J.

text:
    In the Matter of the Trust of Catherine H. Bowen Charitable Trust: Eric J. Weinberger, Appellant, v. John F. Bowen, Co-Trustee-Respondent, Catherine H. Bowen, Respondent, Christopher H. Bowen, Successor-Trustee-Respondent, Jennifer B. Weinberger, Melinda L. Bowen, Sarah I. Bowen, Michael S. Bowen and Erik A. Bowen, Beneficiaries-Respondents.
    Court of Appeals

      No. 00-0903.

      Submitted on briefs October 2, 2000.

    Decided November 8, 2000.

    2000 WI App 264
    (Also reported in 622 N.W.2d 471.)

      On behalf of the appellant, the cause was submitted on the briefs of Gerald M. O'Brien of Anderson, Shannon, O'Brien, Rice & Bertz of Stevens Point.
    On behalf of the co-trustee-respondent, respondent, successor-trustee-respondent, and beneficiaries-respondents, the cause was submitted on the brief of William E. Duffin of Godfrey & Kahn, S.C. of Milwaukee.
    Before Brown, P.J., Nettesheim and Anderson, JJ.
   NETTESHEIM, J.

¶1. Eric J. Weinberger appeals from a circuit court order removing him as a co-trustee of the Catherine H. Bowen Charitable Trust and appointing another in his stead. The order was premised upon Wis. Stat. § 701.12(1) (1997-98), which permits revocation, modification or termination of a trust upon the written consent of the settlor and all beneficiaries.

¶ 2. On appeal, Weinberger argues that his removal under WlS. STAT. § 701.12(1) violated an express provision in the trust agreement that barred modification of the trust. Instead, Weinberger argues that he could only be removed for cause pursuant to WlS. Stat. § 701.18(2). And since the court did not conduct any factual inquiry as to cause for his removal, Weinberger asks that we reverse the order.

¶ 3. We agree with the circuit court that WlS. Stat. § 701.12(1), not Wis. Stat. § 701.18(2), applies to this case. Therefore, we affirm the order.

HISTORY

¶ 4. The relevant facts are brief and undisputed. We take them from the petition which initiated this action. Catherine H. Bowen established the Catherine H. Bowen Charitable Trust under a trust agreement dated September 12, 1988. Catherine named her son John F. Bowen as one co-trustee and Weinberger, who was married to her granddaughter Jennifer, as the other co-trustee. The trust included the following provision at Article III:

Revocation or Amendment of Trust. It is the intention of the Grantor that any transfer to any Trust created under this Trust Agreement shall constitute an irrevocable gift without possibility of reverter. This Trust is irrevocable and neither the Grantor nor any other person shall have the power to alter, amend or modify this Trust Agreement except as specifically provided in paragraph 3.8, below. (Emphasis added.)

¶ 5. After the trust was created, Jennifer commenced a divorce action against Weinberger. As a result, Bowen, the co-trustee, asked Weinberger to resign as a co-trustee. Weinberger refused. Consequently, Catherine and all of the trust beneficiaries commenced the instant action by written petition asking the circuit court to substitute a new co-trustee in place of Weinberger. The petition was brought pursuant to WlS. STAT. § 701.12(1), which authorizes the revocation, modification or termination of a trust upon "written consent of the settlor and all beneficiaries." In the alternative, the petition sought Weinberger's removal for cause pursuant to WlS. STAT. § 701.18(2).

¶ 6. The parties submitted written briefs and oral arguments to the circuit court. In a bench decision, the court ruled that WlS. STAT. § 701.12(1) was the controlling statute. Since Catherine and all of the beneficiaries had consented in writing to the modification of the trust as required by the statute, the court ordered Weinberger's removal as a co-trustee. Wein-berger appeals.

STANDARD OF REVIEW

¶ 7. We first address our standard of review. The trial court record in this case consists of the written petition, the parties' written briefs and the transcript of their oral arguments. The parties did not seek, and the circuit court did not conduct, a formal trial. Thus, we have a "paper record." In such a setting, we need not give any special deference to the trial court's findings or rulings because we are in as good a position as the trial court to address the issue. See Racine Educ. Ass'n v. Racine Bd. of Educ., 145 Wis. 2d 518, 521, 427 N.W.2d 414 (Ct. App. 1988); see also State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 281 n.15, 392 N.W.2d 453 (Ct. App. 1986). Moreover, in this case we are required to apply the statutes at issue to a particular set of facts. That exercise presents a question of law which we decide independently of, and without deference to, the trial court's ruling. See Midwest Developers v. Goma Corp., 121 Wis. 2d 632, 651, 360 N.W.2d 554 (Ct. App. 1984). Thus, our review is de novo.

¶ 8. Despite our de novo standard of review, we value a trial court's decision. See Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475-76, 507 N.W.2d 163 (Ct. App. 1993). Here the circuit court has provided us with a well-reasoned decision that is helpful and informative on the issue.

DISCUSSION

¶ 9. We begin by setting out the two statutes at issue. Wisconsin Stat. § 701.12(1) provides:

By written consent of the settlor and all beneficiaries of a trust or any part thereof, such trust or part thereof may be revoked, modified or terminated, except as provided under s. 445.125 (1) (a) 2. to 4.

Wisconsin Stat. § 701.18(2) provides in pertinent part:

REMOVAL. A trustee may be removed in accordance with the terms of the creating instrument or the court may, upon its own motion or upon a petition by a beneficiary or cotrustee, and upon notice and hearing, remove a trustee who fails to comply with the requirements of this chapter or a court order, or who is otherwise unsuitable to continue in office.

¶ 10. In this court, the parties renew their trial court arguments. The petitioners contend that WlS. STAT. § 701.12(1) plainly and unambiguously governs the issue because Catherine and all of the trust beneficiaries have, by their written petition, consented in writing to the modification substituting another in place of Weinberger as a co-trustee. Weinberger argues that the trust provision prohibiting modification or amendment of the trust agreement precludes the application of § 701.12(1). Instead, Weinberger contends that the petitioners' only recourse was to seek his removal for cause pursuant to Wis. Stat. § 701.18(2), which he argues is the more specific statute under the circumstances of this case. See Gillen v. City of Neenah, 219 Wis. 2d 806, 822, 580 N.W.2d 628 (1998) ("Where general and specific statutory provisions are in conflict, the specific provisions take precedence.").

¶ 11. We reject Weinberger's argument. We agree with the circuit court's holding that Wis. Stat. § 701.12(1) clearly and unambiguously allows for the revocation, modification or termination of a trust upon the written consent of the settlor and all the trust beneficiaries. That, of course, is precisely what occurred in this case. The circuit court also correctly observed that the statute does not limit its application to only certain situations. Rather, the court concluded that the statute applies "to any scenario . . . where the trust may be silent or may be ambiguous or has an express bar against amendments."

¶ 12. Weinberger argues that the circuit court's ruling overrides the intent of the settlor as expressed in the trust agreement. He cites to case law which holds that a court is obligated to uphold the intent of the settlor. See Upham v. Plankinton, 152 Wis. 275, 283-84, 140 N.W. 5 (1913), and In re Charitable Trust, Oshkosh Found., 61 Wis. 2d 432, 442, 213 N.W.2d 54 (1973). We, of course, accept this fundamental principle of the law of trusts. And we further accept that, in most cases, the trust document will control on this question because the settlor is deceased. See, e.g., Upham, 152 Wis. at 277. But here the settlor is still living and her current intent as to who should serve as a co-trustee is unequivocally expressed via her written consent to the removal of Weinberger and her desire to substitute another in his stead. We cannot discern any sound reason why the settlor and all of the beneficiaries should be precluded from modifying the terms of a trust if all are in agreement that such action is appropriate. By its enactment of WlS. Stat. § 701.12(1), the legislature also apparently could discern no such reason. In short, the statute, and our application of it to this case, honors the intent of the settlor.

¶ 13. Weinberger further argues that WlS. STAT. § 701.18(2), permitting removal of a trustee for cause, not WlS. Stat. § 701.12(1), is the operative statute in this situation. We acknowledge that a plain and unambiguous statute such as § 701.12(1) may be rendered ambiguous by its interaction with other statutes. See McDonough v. DWD, 227 Wis. 2d 271, 278, 595 N.W.2d 686 (1999). In that situation, we read the statutes in pari materia, attempting to give meaning to both. See id. at 279-80. In addition, we note that a statute which is plain on its face may also be rendered ambiguous by the context in which it is sought to be applied. See Roehl v. American Family Mut. Ins. Co., 222 Wis. 2d 136, 145, 585 N.W.2d 893 (Ct. App.), review denied, 222 Wis. 2d 676, 589 N.W.2d 630 (Wis. Dec. 15, 1998) (No. 98-1207-FT).

¶ 14. But we agree with the circuit court that the two statutes serve different purposes. On the one hand, WiS. Stat. § 701.12(1) allows a settlor and all of the trust beneficiaries to revoke, modify or terminate a trust if all are in agreement. Such a removal need not be premised on any cause. On the other hand, WlS. STAT. § 701.18(2) provides a means for removing a trustee where the conditions envisioned by § 701.12(1) do not exist. However, in that setting, the trustee can be removed only upon a showing of cause. Thus, § 701.18(2) would apply where the settlor and all of the trust beneficiaries are not in agreement that removal is appropriate, or where the settlor is no longer living and therefore unable to provide written consent to the removal as required by § 701.12(1).

¶ 15. In summary, Wis. Stat. § 701.12(1) is not rendered ambiguous by its interaction with Wis. Stat. § 701.18(2) or by its application to the facts of this case. Therefore, we reject Weinberger's argument that by allowing for his removal under § 701.12(1), we are defeating the legislative purpose served by § 701.18(2). We agree with the circuit court that the two statutes serve different purposes in different situations.

CONCLUSION

¶ 16. We uphold the circuit court's ruling that WlS. STAT. § 701.12(1) was the controlling statute in this case. Therefore, we affirm the order removing Weinberger as a co-trustee and substituting another in his stead.

By the Court. — Order affirmed.

      A11 references to the Wisconsin Statutes are to the 1997-98 version.

       The order also provided that in the future a co-trustee could be removed by the vote of a majority of the legally competent descendants of the settlor. Weinberger does not appeal this provision of the order.

      Paragraph 3.8, entitled Limited Power to Amend, authorizes the co-trustees to amend the trust agreement for purposes of assuring that the trust continued to qualify as a "charitable lead unitrust" under relevant tax law. This provision is not germane to the appellate issue.

       The petition also asked the circuit court to order that any future co-trustee could be removed by a vote of a majority of the legally competent descendants of the settlor. See supra note 2.

       In support of the removal for cause, the petition alleged that Weinberger "is unsuitable to continue in office because the pending dissolution of the marriage of [Weinberger and Jennifer] has created a conflict wherein [Weinberger] no longer is able to fulfill his fiduciary duty of undivided loyalty to the beneficiaries and to administer the Trust in an objective and unbiased manner."

      Because we hold that WlS. STAT. § 701.12(1) governs this case, we need not address Weinberger's further argument that the circuit court erred by failing to conduct an evidentiary hearing as to whether he should be removed for cause pursuant to WlS. STAT. § 701.18(2).