author: DEININGER, J.

text:
    Elmer W. Glaeske, as Trustee of the Irrevocable Trust of Arthur Shaw, Plaintiff-Respondent, v. Elwyn M. Shaw, Defendant-Appellant, William Shaw, Defendant-Respondent.
    Court of Appeals

      No. 01-3056.

      Submitted on briefs August 9, 2002.

    Decided February 6, 2003.

    2003 WI App 71
    (Also reported in 661 N.W.2d 420.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Gary M. May, Monona.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Anthony R. Varda of DeWitt Ross & Stevens, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief oí Paul S. Curran of Curran, Hollenbeck & Orton, S.C., Mauston.
    Before Vergeront, PJ., Dykman and Deininger, JJ.

       Petition for review dismissed 4-7-03.

   DEININGER, J.

¶ 1. Elwyn Shaw appeals a judgment upholding the validity of a trust. He claims the trial court erred when it: (1) dismissed his claim that William Shaw unduly influenced Elwyn's father, Arthur Shaw, to designate William as the primary beneficiary of the irrevocable trust; (2) denied his motion to invalidate the trust for improper execution; (3) struck his expert witnesses; (4) refused to join Elwyn's son, Nate, as a party to the lawsuit; and (5) stated that "it appears . . . that there is going to be some imposition of sanctions."

¶ 2. We conclude that Elwyn has pointed to no disputes of material fact or errors of law that would preclude the entry of summary judgment against him on the undue influence claim. We further conclude that the trial court did not err in denying Elwyn's motion to invalidate the trust for improper execution, striking his expert witnesses, and refusing to join his son as a party to the lawsuit. Finally, we conclude that the trial court made no final order regarding frivolousness sanctions, and we remand for further proceedings on the issue.

BACKGROUND

¶ 3. The trustee of the Arthur Shaw Irrevocable Trust commenced this declaratory judgment action to obtain a determination of the validity of the trust. The settlor of the trust, Arthur Shaw, died a resident of Florida. Arthur had moved to Florida from Wisconsin several years before his death, returning to Wisconsin during the summer months.

¶ 4. Arthur had one child, Elwyn Shaw. Arthur and Elwyn had a strained relationship, stemming from what Arthur deemed to be Elwyn's failure to provide a sufficient level of care for Arthur's wife (Elwyn's mother) prior to her death in the late 1980s. Arthur's neighbors, his estate planner, and the trustee of the challenged trust testified at depositions that Arthur was disappointed with his son and did not want him to inherit his estate.

¶ 5. Arthur developed a relatively close relationship with a nephew, William Shaw, following William's donation of a kidney to his father, Arthur's brother. During the last years of Arthur's life, William, a Wisconsin resident, kept in telephone contact with Arthur, saw him two or three times per year, and on at least one occasion, drove him from Florida to his Wisconsin summer residence. During this time, Arthur gave vari- . ous gifts to William and his children and gave William his power of attorney for health care matters.

¶ 6. In the decade before his death, Arthur executed several trusts, each superceding the previous one. One named Elwyn as the primary beneficiary; a later trust named Elwyn's son, Nate, as the primary beneficiary; and a still later trust named William as the primary beneficiary. In his next and final trust, Arthur retained William as the primary beneficiary and added a provision stating that he "specifically makes no provisions for [Elwyn] ... for reasons best known to [El-wyn]."

¶ 7. Arthur executed the final trust document in Wisconsin at the offices of its drafter, his long-time estate planning counsel. The trust names a Wisconsin resident trustee and provides that "[t]he situs of this Trust shall, at all times, be in the State of Wisconsin." The trust also declares that it "shall be construed according to the laws of the State of Wisconsin."

¶ 8. Following his father's death, Elwyn retained counsel to challenge the validity of the trust. Elwyn's counsel filed a "Motion to Freeze" the distribution of trust assets in the Florida probate court where Arthur's estate was being administered. The motion alleged that William unduly influenced Arthur and that the trust did not comply with the requirement under Florida law that two witnesses sign in the presence of each other and the settlor at the time of the execution of a trust. See Fla. Stat. §§ 737.111(1), 732.502 (1)(b), (c) (2002). Elwyn's counsel also threatened to file a lawsuit in Florida civil court on the same grounds.

¶ 9. The trustee responded by filing this declaratory judgment action in Wisconsin, seeking a determination of, among other things, "the legal validity of said Trust and its Trust instrument." The complaint named Elwyn and William as defendants. Elwyn answered, raising as an affirmative defense the claim that the trust "was procured by undue influence." Elwyn also filed a motion to invalidate the trust, which alleged that because the trust was not "properly executed, the purported Trust assets actually belong to the Florida probate estate . . . ."

¶ 10. After the filing of the initial pleadings, the trial court held a scheduling conference at which it established two deadlines relevant to this appeal. The first deadline set the date by which Elwyn was to identify his expert witnesses and disclose either a formal report of their opinions or a summary of their expected testimony. The second deadline set the date by which Elwyn was required to join any additional parties to the lawsuit. The court imposed a relatively short deadline to join additional parties (30 days from the date of the scheduling conference), deeming a longer time unnecessary and contrary to the efficient progression of the lawsuit.

¶ 11. Shortly after the expert disclosure deadline, Elwyn filed his "Expert Witness List." The list contained the names of approximately sixty experts, six of whom he described as "expert witnesses retained or to be retained for this action." Elwyn summarized the various opinions that these primary witnesses purportedly held, but qualified them as opinions that "may likely be obtained" or were "expected'. . . once a report is prepared." Elwyn then identified over fifty additional "fact witnesses with expert credentials" who "might at some time give an expert opinion" relating to Arthur's "mental or physical condition or medical treatment." These additional witnesses included a vast array of medical personnel, including physicians, nurses, and entire medical centers.

¶ 12. Counsel for the .trustee subpoenaed four of the primary witnesses for deposition. Three responded by informing counsel that they had not been retained and had not formulated any opinions concerning the case; the fourth responded by stating that he would not appear for deposition without advance payment of expert witness fees.

¶ 13. Counsel for the trustee and for William objected to Elwyn's "Expert Witness List" on the grounds that it failed to comply with the trial court's scheduling order. The court entered an order which prohibited the six primary witnesses "from testifying in any capacity in these proceedings" and prohibited the remainder of the listed witnesses "from offering any professional opinions in this proceeding."

¶ 14. Shortly after filing the "Expert Witness List," Elwyn's counsel made two attempts to join Elwyn's son, Nate, as a party to the lawsuit. Counsel first filed a "Motion to Add Party" on Elwyn's behalf, in which he claimed that Nate was a necessary party because he was the "named beneficiary" of the trust "immediately preceding" the challenged trust. Counsel subsequently filed a "Motion for Leave to Intervene" on Nate's behalf, claiming that Nate was a necessary party for the reason alleged in the previous motion. Both motions were filed well after the expiration of the court's deadline for joining additional parties. The trial court denied both motions as untimely.

¶ 15. The court also denied Elwyn's motion to invalidate the trust for improper execution, concluding that Wisconsin law governs the validity of the trust, making witness signatures unnecessary. The trial court also granted summary judgment dismissing Elwyn's undue influence claim. The court entered a written order stating that Elwyn's "affirmative defense alleging that the trust at issue in this action was procured by undue influence is hereby denied, on the merits, with prejudice and with costs."

¶ 16. Counsel for William and the trustee then moved for sanctions against Elwyn and his counsel on two grounds: (1) the alleged frivolousness of Elwyn's undue influence claim; and (2) Elwyn's failure to comply with the scheduling order regarding the disclosure of his expert witnesses. The court stated at the conclusion of the sanctions hearing that "it appears .. . that there is going to be some imposition of sanctions." The appealed judgment, however, leaves the "matter of sanctions . .. open and subject to further order of the court."

¶ 17. Elwyn appeals, citing as error the trial court's denial of his motion to invalidate the trust for improper execution, the dismissal of his undue influence claim on summary judgment, the striking of his expert witnesses, and the court's refusal to join Nate as a party. Elwyn also attempts to appeal the trial court's statement regarding the likely imposition of sanctions.

DISCUSSION

I — I

¶ 18. As an initial matter, we address William's contention in his response brief that Elwyn lacks standing to pursue this appeal. William contends that granting Elwyn's request to void the trust would merely "revive" Arthur's immediately preceding trust. Because William is also the primary beneficiary of that trust, William claims that Elwyn "would still receive nothing" even if he were to prevail in setting aside the challenged trust. Thus, in William's view, Elwyn lacks a "personal stake in the outcome of this case" and, correspondingly, "standing to pursue it."

¶ 19. "We may decline to review issues inadequately briefed." State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). We decline to decide William's lack-of-standing claim because he cites no authority for the premise on which it rests: that the invalidation of Arthur's final trust would trigger a revival of the immediately preceding trust, instead of resulting in the distribution of the intended trust assets to Arthur's heir (i.e., Elwyn). We will therefore assume without deciding that Elwyn has standing to pursue this appeal.

1 — 4 b-i

¶ 20. We next address the parties' dispute concerning whether Florida or Wisconsin law controls the required formalities for execution of the trust at issue. Elwyn moved the trial court to invalidate the trust for improper execution, arguing that because the trust was not "properly executed" under Florida law, "the purported Trust assets actually belong to the Florida probate estate." Because the trial court treated this motion as one for summary judgment, we review de novo the trial court's action on the motion. See Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985) (We review a trial court's grant or denial of summary judgment de novo, owing no deference to the trial court's decision.).

¶ 21. Florida law requires two witnesses to sign in the presence of each other and the settlor at the time of the execution of a trust. See Fla. Stat. §§ 737.111(1), 732.502(1)(b), (c) (2002). Wisconsin law imposes no similar requirement. The trust lacks witness signatures, and it was thus validly executed under Wisconsin law but not under Florida law. Because an outcome-determinative issue exists, we must engage in a choice of law analysis. See Lichter v. Fritsch, 77 Wis. 2d 178, 182, 252 N.W.2d 360 (1977) (The first step in a choice of law analysis is to determine whether the choice of one law over another will affect the outcome.).

¶ 22. Wisconsin courts employ two choices of law methodologies. The first, applied in contract cases, provides that contract rights are to be " 'determined by the law of the [jurisdiction] with which the contract has its most significant relationship.'" See State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 31, ¶ 26, 251 Wis. 2d 561, 641 N.W.2d 662 (citation omitted). The second, applicable to tort cases, begins with a presumption that the law of the forum applies unless" 'nonforum contacts are of the greater significance,'" and ends with an analysis of five "choice influencing factors": predictability of results, maintenance of interstate and international order, simplification of the judicial task, advancement of the forum's governmental interests, and application of the better rule of law. See id., ¶¶ 51, 53 (citation omitted).

¶ 23. The difficulty here is that the alleged invalidity of a trust is neither a tort claim nor strictly a contract issue. Although it might conceivably give rise to a claim of professional negligence, the improper execution of a trust does not in and of itself constitute an actionable tort. A trust document is also not generally considered to be a contract. Nevertheless, we conclude that the question of whether the trust was validly executed, thereby requiring the trustee to act in accordance with its terms, appears more analogous to a contract dispute than to a tort claim. We will thus apply the choice of law methodology employed in Wisconsin for contract cases. That is, we will apply the law of the state with which the trust has its "most significant relationship." See id., ¶ 26.

¶ 24. We conclude that the trust at issue has its "most significant relationship" with Wisconsin, not Florida. The trust specifies that it "shall be construed" according to Wisconsin law, designates Wisconsin as the location of the trust situs, names Wisconsin residents as trustee and primary beneficiary, and identifies Wisconsin as the place of its drafting and execution. Conversely, Florida's only connection with the trust is that it is the state of Arthur's domicile at the time of his death. We conclude, therefore, that Wisconsin law should govern the issue of whether Arthur complied with the formalities necessary for the creation of a trust. Because Wisconsin law does not require that two witnesses sign in the presence of each other and the settlor at the time of the execution, we conclude that the trust was validly executed.

¶ 25. Elwyn argues, however, that the application of Wisconsin law disregards the tenets of "basic Federalism," which he claims require "[s]ome modicum of regard for the law of other States." Elwyn further contends that the application of Wisconsin law violates principles óf "comity" by allowing Elwyn to avoid Florida trust formalities and to illegally "shelter [Arthur's] assets from [MJedicaid." We reject these contentions. Although we do not doubt that the trust execution formalities Florida requires serve legitimate policy goals of that state, we find it difficult to discern what interest Florida might have in applying its law to a trust that is predominantly connected to Wisconsin and minimally connected to Florida. Additionally, if the trust's provisions violate applicable Medicaid laws, as Elwyn alleges (an issue we do not decide), that claim must be raised by the entity responsible for determining Medicaid eligibility and recouping wrongfully paid benefits, not by a disappointed heir. Elwyn's policy arguments simply do not persuade us that Florida law rather than Wisconsin law should apply to execution of the trust at issue.

1 — 1 1 — 1

¶ 26. Having concluded the trust was validly executed, we next consider Elwyn's claim that it was procured by William's undue influence over Arthur. The trial court dismissed Elwyn's undue influence claim on summary judgment. As we have noted, we review a trial court's grant or denial of summary judgment de novo, owing no deference to the trial court's decision. Waters, 124 Wis. 2d at 278. "[Sjummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995); Wis. Stat. § 802.08(2) (1999-2000). We will reverse a decision granting summary judgment if either (1) the trial court decided legal issues incorrectly, or (2) material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). In our review, we, like the trial court, are prohibited from deciding issues of fact; our inquiry is limited to a determination of whether a factual issue exists. Id.

¶ 27. To prove undue influence, Elwyn must prove Arthur's susceptibility to undue influence, together with William's opportunity and disposition to influence, and the achievement of a coveted result. See Hoeft v. Friedli, 164 Wis. 2d 178, 185, 473 N.W.2d 604 (Ct. App. 1991). In the alternative, Elwyn could show that a confidential or fiduciary relationship existed between Arthur and William, and that there were suspicious circumstances surrounding the creation of the trust. See id. at 184. We will examine whether the record provides support for Elwyn's claim under either of these tests, beginning with the four-element test.

¶ 28. The first element, susceptibility to undue influence, involves a consideration of such facts as the person's age, personality, physical and mental health, and ability to handle business affairs. Lee v. Kamesar, 81 Wis. 2d 151, 159, 259 N.W.2d 733 (1977). If the record presents the possibility that a judge or jury could find that Arthur was "unusually receptive to the suggestions of others and consistently deferred to them on matters of utmost personal importance," then Elwyn's claim must survive summary judgment on the first element. Johnson v. Merta, 95 Wis. 2d 141, 156-57, 289 N.W.2d 813 (1980). We conclude, however, that the record does not do so.

¶ 29. The record contains ample evidence tending to show that Arthur was mentally agile and strong-willed until his death. For example, the trustee, Arthur's accountant of twenty years, testified at deposition that Arthur made "sound decisions" and was "very independent" concerning his finances until his death. Arthur's estate planner of twelve years described Arthur as a man who "knew what he wanted" and who was "quite forceful in saying this is what I want and this is what I want you to give to me." Arthur's long-time neighbors testified that Arthur was "[s]harp as a tack" and that they never noticed any decline in his mental acuity. Finally, Elwyn admitted at deposition that his father was "strong willed" and that his "stubbornness became much more pronounced toward the end of his life."

¶ 30. Elwyn attempts to counter this evidence by arguing that Arthur was mentally impaired and that his numerous trust revisions demonstrate a vacillating character. Neither claim finds support in the record. Elwyn submitted no expert medical testimony in support of his allegation of Arthur's mental impairment, and the lay witness testimony uniformly indicates that Arthur was of sound and independent mind until his death. Further, although Arthur revised his estate plan several times in the decade before his death, he had designated William as his primary beneficiary in documents that were in effect for at least several years before his death, thereby undermining Elwyn's allegation that Arthur was of a vacillating character, or that the final trust in William's favor was an impulsive or irrational act on Arthur's part.

¶ 31. We thus conclude that the record on summary judgment does not establish a factual dispute relating to Arthur's susceptibility to influence. On the record before us, there is only one reasonable inference —that Arthur was not susceptible to any influence William might have endeavored to apply. Because El-wyn had the burden to prove all four elements (or, for present purposes, to establish that a factual dispute exists with respect to each element), his failure to meet his burden on the first element entitles William to summary judgment on the undue influence claim. See Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2001 WI App 148, ¶ 48, 246 Wis. 2d 933, 632 N.W.2d 59 (Summary judgment opponent may not rely on conjecture; rather, the "opponent's obligation is to counter with evidentiary materials demonstrating there is a dispute ...."), aff'd, 2002 WI 80, 254 Wis. 2d 77, 646 N.W.2d 777; Transportation Ins. Co., Inc. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 291-92, 507 N.W.2d 136 (Ct. App. 1993) ("[0]nce sufficient time for discovery has passed, it is the burden of the party asserting a claim on which it bears the burden of proof at trial 'to make a showing sufficient to establish the existence of an element essential to that party's case.'" (citation omitted)).

¶ 32. We turn next to the question of whether the record would permit Elwyn's undue influence claim to survive summary judgment on the alternative, two-element test for undue influence. The first element of this test is the existence of a fiduciary or confidential relationship. The record contains no evidence from which one might conclude that either type of relationship existed between Arthur and William. Although Arthur executed a power of attorney designating Elwyn as his agent for health care decisions, the medical power of attorney did not create a fiduciary relationship between the two concerning Arthur's financial or estate planning matters. See First Nat'l Bank v. Wernhart, 204 Wis. 2d 361, 370, 555 N.W.2d 819 (Ct. App. 1996) (An agent is a fiduciary only with respect to matters within the scope of his agency.).

¶ 33. Neither did William and Arthur share a confidential relationship, which exists only if the favored beneficiary" 'can dictate the contents and control or influence the drafting'" of the will. Ruhr v. East Wisconsin Tr. Co., 88 Wis. 2d 199, 220, 277 N.W.2d 143 (1979) (citation omitted). Elwyn admitted at deposition that he did not know if Arthur sought advice from William on financial or other confidential matters, and that he (Elwyn) had no knowledge of any activities by William to attempt to affect the content of the trust. Similarly, Arthur's estate planning counsel denied having any reason to believe that Arthur was acting under any kind of undue influence at the time he executed his final trust. Thus, Elwyn has failed to demonstrate the presence of a factual dispute concerning the existence of a "fiduciary or confidential relationship," and his claim cannot survive summary judgment under the alternative test for undue influence.

¶ 34. Given that Elwyn failed to submit evidence that would establish or place in dispute required elements under both tests for establishing undue influence in Wisconsin, we conclude that the trial court did not err in dismissing his undue influence claim.

IV

¶ 35. We next address Elwyn's claim that the trial court erred in striking his expert witnesses. On the deadline set by the trial court to disclose expert witnesses and their opinions or summaries of their expected testimony, Elwyn filed a list containing the names of six primary expert witnesses and over fifty "fact witnesses with expert credentials" who "might at some time give an expert opinion." Attempts by the trustee to depose Elwyn's primary witnesses revealed that they had not been formally retained, had not formulated any opinions concerning the case, or would not testify absent advance payment of expert witness fees. On motions from William and the trustee, the trial court entered an order prohibiting the six primary witnesses "from testifying in any capacity in these proceedings" and prohibiting the remainder of the listed witnesses "from offering any professional opinions in this proceeding." We review this order under an abuse of discretion standard. See Gerrits v. Gerrits, 167 Wis. 2d 429, 446, 482 N.W.2d 134 (Ct. App. 1992).

¶ 36. The trial court has both statutory and inherent power to punish a party for failing to comply with a pretrial order to disclose expert witnesses. Under Wis. Stat. § 802.10(7), a court may in response to a violation of a scheduling order: (1) impose an "appropriate sanction" if an attorney signed a frivolous document in an attempt to comply with the scheduling order (see Wis. Stat. § 802.05(l)(a)); and (2) make "such orders ... as are just" (see Wis. Stat. § 805.03), including "prohibiting the disobedient party from introducing designated matters in evidence" (see Wis. Stat. § 804.12(2)(a)2). Additionally, the court has "inherent power" to punish a party for failing to comply with a pretrial order to disclose expert witnesses, including barring the party from presenting the expert evidence. See State v. Ronald L.M., 185 Wis. 2d 452, 461, 518 N.W.2d 270 (Ct. App. 1994).

¶ 37. Elwyn argues that the trial court erred in striking his expert witnesses because he "complied to the letter" with the trial court's order and because the trial court premised its sanction on "unexpressed requirements." Elwyn further argues that the trial court failed to consider the unfairness of opposing counsel's prompt issuance of subpoenas to his listed witnesses and the inequity of the court's requirement that he disclose his expert witnesses prior to the close of discovery. We conclude that these arguments are unpersuasive, if not disingenuous.

¶ 38. At the scheduling conference, the following discussion took place:

THE COURT: All right. May 1st, you'll identify your experts. And it will include. . . any opinion evidence that the expert is going to give at trial or a summary of.. . his or her testimony.
[COUNSEL FOR ELWYN]: Okay.
[COUNSEL FOR TRUSTEE]: Your Honor, just because I've run into this confusion ... recently in a case, I assume then that on May 1st that his witness should be prepared for discovery and should have opinions that they can give if their deposition occurs shortly thereafter.
THE COURT: That's why I'm requiring that the designation be accompanied by a report or opinion or a summary of the testimony, because simply identifying an expert is of no benefit. And if it's not accompanied by a report, an opinion or a summary, then they have no opinion that's going to be admitted in this court.

Consistent with this discussion, the trial court's written order required Elwyn to "identify his expert witnesses . . . and ... include any opinion provided by such expert or a summary of what the expert is expected to testify to at trial. Any material opinions not included in this disclosure will not be admitted at trial."

¶ 39. By any measure, Elwyn's "Expert Witness List" failed to comply with the trial court's oral and written orders. Although Elwyn identified six primary witnesses, he equivocated on whether they in fact had been retained (identifying them as experts "retained or to be retained for this action"), and on the opinions they supposedly held (stating that some of the experts "believe that expert opinions helpful to Elwyn's case may likely be obtained" and that others "expected" to have favorable opinions "once a report is prepared."). Elwyn apparently had ample reason to equivocate: when subpoenaed for deposition, none of the expert witnesses were ready or willing to testify. As for the over fifty "fact witnesses with expert credentials . . . who might at some time give an expert opinion," Elwyn's court-mandated summary of their expected testimony consisted only of the following: "[A]ny opinion would relate to the mental or physical condition or medical treatment of Arthur Shaw."

¶ 40. Given the clarity of the trial court's oral and written orders, Elwyn's unfocused "Expert Witness List," and the lack of preparedness of the named witnesses, we reject Elwyn's claims that he had "complied to the letter with the Judge's order" or that he was victimized by the court's "unexpressed requirements." In both its oral and written orders, the court set a date by which Elwyn was to have retained his expert witnesses and provided either a formal report of their opinion or a summary thereof. Instead, Elwyn filed with the court a list of experts that had little, if any, substantive knowledge of the case.

¶ 41. Elwyn's allegations of "hardball" litigation tactics and an inherently unreasonable scheduling order are similarly unavailing. Given the sheer number of potential expert witnesses identified in Elwyn's Expert Witness List, his ambiguous language concerning the opinions they purportedly held, and the limited time in which the trustee and William had to disclose their experts (approximately two months after Elwyn's disclosure), we conclude that counsel's efforts to promptly depose Elwyn's experts were a necessary response to Elwyn's inadequate disclosure. We also discern no inherent unfairness in the trial court's scheduling order, particularly given that Elwyn made no attempt to request an extension of the expert disclosure deadline prior to the deadline itself.

¶ 42. Accordingly, we conclude that the court did not erroneously exercise its discretion in striking Elwyn's expert witnesses.

V

¶ 43. We next address Elwyn's claim that the trial court erred in refusing to join his son, Nate, as a party to the lawsuit. Elwyn's counsel made two attempts to join Nate as a party, both of which the trial court rejected as untimely.

¶ 44. The first attempt was a "Motion to Add Party" filed on Elwyn's behalf, in which Elwyn claimed that Nate was a necessary party. A defending party may implead "a person not a party" to an action if the person is a "necessary party" under Wis. Stat. § 803.03. See Wis. Stat. § 803.05. A party is a "necessary party" if he or she is "subject to service of process" and if either of the following circumstances is present:

(a) In the person's absence complete relief cannot be accorded among those already parties; or
(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.

Section 803.03(1). Whether a party is a necessary party is a question of law that we decide de novo. See Dairyland Greyhound Park, Inc. v. McCallum, 2002 WI App 259, ¶ 10, 258 Wis. 2d 210, 655 N.W.2d 474, review denied, 2003 WI 1, 258 Wis. 2d 110, 655 N.W.2d 129 (Wis. Nov. 12, 2002) (No. 02-1204).

¶ 45. We conclude that Nate is not a necessary party to this action. Neither circumstance set forth in Wis. Stat. § 803.03(1) is present. Nate's absence from this lawsuit does not deny "complete relief. . . among those already parties," and neither does Nate possess "an interest relating to the subject of the action" that must be protected or that would subject the existing parties to multiple obligations. Section 803.03(l)(a), (b). Even if Elwyn were successful in invalidating the challenged trust, the assets would either be distributed to Elwyn, who is Arthur's sole heir, or, as William maintained in his standing argument, those assets would be subject to Arthur's immediately preceding trust, of which William was also the primary beneficiary. Under either possibility, Nate would acquire no interest in the assets. We thus conclude that the trial court did not err in denying Elwyn's motion to join Nate as a party to the action.

¶ 46. The second attempt by Elwyn's counsel to join Nate was by way of a "Motion for Leave to Intervene" filed on Nate's behalf. A motion to intervene must be "timely" filed. See Wis. Stat. § 803.09. There is no "precise formula" for determining whether a motion to intervene is timely, and therefore the question of timeliness "must necessarily be left to the discretion of the circuit court." State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 550, 334 N.W.2d 252 (1983). Relevant factors include whether the movant acted promptly and whether the movant's delay in bringing the motion for intervention will prejudice the existing parties to the case. Id. For example, in State ex rel. Jones v. Gerhardstein, 135 Wis. 2d 161, 168-69, 400 N.W.2d 1 (Ct. App. 1986), aff'd, 141 Wis. 2d 710, 416 N.W.2d 883 (1987), we affirmed the trial court's denial of a motion to intervene on the grounds that: (1) it was brought more than seven months after the action was commenced; (2) the action was at a critical stage; and (3) there was no reason for the delay.

¶ 47. This case presents facts similar to those in Jones. In denying the "Motion for Leave to Intervene," the court noted that the matter had been on the trial calendar "for over a year," that a motion for summary judgment was pending, that the subject of joining Nate had been raised months earlier at the scheduling conference, and that there was no apparent reason for the delay in filing the Motion for Leave to Intervene. These concerns parallel those that we deemed sufficient in Jones to warrant the denial of a motion to intervene as untimely. Thus, as in Jones, we conclude that the trial court did not erroneously exercise its discretion in denying Elwyn's motion to intervene.

VI.

¶ 48. We next address Elwyn's argument that the trial court erred with respect to the issue of sanctions. William and the trustee moved for the imposition of sanctions against Elwyn and/or his counsel on two grounds: (1) for bringing and maintaining an allegedly frivolous undue influence claim; and (2) for Elwyn's violation of the scheduling order regarding the disclosure of expert witnesses. The trial court stated at the conclusion of the sanctions hearing that "it appears to me that there is going to be some imposition of sanctions here in one or more of those categories." The appealed judgment, however, states only that "the matter of sanctions remain[s] open and subject to further order of the Court." Elwyn filed his notice of appeal prior to the court's taking further action on the sanctions issues.

¶ 49. An aggrieved party may appeal a judgment or order which " 'disposes of all of the substantive causes of action between the parties,'" notwithstanding the fact that a claim for attorney fees remains pending in the trial court. See Laube v. City of Owen, 209 Wis. 2d 12, 14-16, 561 N.W.2d 785 (Ct. App. 1997) (citation omitted). That is what Elwyn has done here — he appeals the judgment dismissing his challenges to the validity of the trust at issue but which leaves open the issue of whether Elwyn or his counsel will be ordered to pay a portion of the attorney fees incurred by William or the trustee in responding to his claims. With respect to the sanctions issue, the appealed judgment was not a "final judgment or a final order," and the issue is not properly before us. See Wis. Stat. § 808.03(1); Sell v. Thompson & Coates, Ltd., 163 Wis. 2d 765, 777, 472 N.W.2d 834 (Ct. App. 1991) (dismissing attempted appeal of a frivolousness finding where trial court "reserved ruling" and the "record is silent as to whether further action was taken").

¶ 50. Quite simply, we do not know what sanctions will be imposed against whom in what amounts or for what reasons. We therefore remand to the trial court for entry of a final order or judgment regarding the payment of attorneys' fees as sanctions. We note that the trustee and William have also moved this court for attorneys' fees under Wis. Stat. Rule 809.25(3) on the grounds that Elwyn's appeal is frivolous. Although we have rejected Elwyn's claims of error, we cannot conclude that his argument concerning the validity of the trust execution lacked any basis in law or equity. Because the entire appeal was not therefore frivolous, we deny the motions for attorneys' fees under Rule 809.25(3). See Tennyson v. School Dist. of the Menomonie Area, 2000 WI App 21, ¶¶ 33-35, 232 Wis. 2d 267, 606 N.W.2d 594. Moreover, because Elwyn's attempt to appeal the imposition of sanctions for frivolousness is premature, the rule of Riley v. Isaacson, 156 Wis. 2d 249, 456 N.W.2d 619 (Ct. App. 1990), does not apply. See id. at 263 (holding "that a party prevailing in the defense of an award of fees under sec. 802.05 is also entitled to a further award on appeal without a finding that the appeal itself is frivolous under Rule 809.25(3), Stats.").

CONCLUSION

¶ 51. For the reasons discussed above, we affirm the appealed judgment and remand for further proceed^ ings on the issue of sanctions.

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

       The "situs" of a trust refers to the "place of performance of active duties of [the] trustee." Black's Law Dictionary 1387 (6th ed. 1990).

       The record indicates that Elwyn's counsel filed such a lawsuit, but that it was dismissed based on the outcome of this action, and Elwyn elected not to appeal the dismissal. The record does not reflect the disposition of the probate court motion.

       The record does not contain a transcript of the summary judgment hearing.

       William argues on appeal that the trust complies with Florida law because the trustee and a notary signed the trust at the same time Arthur did. We note, however, that William essentially conceded in the trial court that the trust lacked the witness signatures required under Florida law. At the hearing on Elwyn's motion to invalidate the trust for improper execution, the court stated that "[a]s noted in the motion, and not seriously disputed, the trust at issue was not executed with the same formalities as required under Florida law. And most specifically, it... was not signed by witnesses." William's counsel did not object to this statement. Because we conclude, as did the trial court, that Wisconsin law applies, we do not address whether the trust's execution might also be deemed acceptable under Florida law.

       Both parties assert that a choice of law analysis is not required due to single, allegedly dispositive facts. William asserts that Wisconsin law must govern because the trust states that it "shall be construed according to the laws of the State of Wisconsin." Elwyn, on the other hand, asserts that Florida law governs because Arthur was domiciled in Florida at his death. We conclude, however, that neither Arthur's designation of law in the trust nor his domicile at death is dispositive because focusing on either fact in isolation might result in the application of the law of a state that lacks a material connection to the trust. Cf. Restatement (Second) of Conflict of Laws § 270(a) (1971) (providing that the settlor's designation of state law to govern the validity of a trust holding non-real estate assets is controlling only if the state "has a substantial relation to the trust" and the designated law does not violate a strong public policy of the state with which the trust has "its most significant relationship"); see also id. at § 270(b) cmt. c (providing that absent a designation of law by the settlor to govern the validity of the trust, the domicile of the settlor is one of several factors used in determining the governing law).
      We also note that we are unable to resolve the choice of law issue based solely on the location of the trust assets. The location of trust property is an important (and, in the case of trusts holding real estate, dispositive) factor in the choice of law applicable to a trust. Cf. id. at § 270 cmt. b (listing the location of non-real estate trust assets as a relevant factor in determining whether to effect a settlor's designation of law to govern the validity of a trust); McMahon v. Standard Bank & Trust Co., 202 Wis. 2d 564, 573, 550 N.W.2d 727 (Ct. App. 1996) (A trust funded with real estate must be governed by the law of the location of the real estate.). The record contains an affidavit from the trustee stating that the trust assets "include" checking and brokerage accounts. The record, however, also reflects some uncertainty concerning the identity of the trust's assets. The trustee requested in the complaint that the court determine "what real and personal property are the corpus of said Trust," but the trial court apparently never made such a determination. Because we lack any clear evidence or findings regarding the assets of the trust, we do not consider them as a factor in our analysis.

        See RestatembNt (Seoond) of TRusts § 197 cmt. b (1959). ("The creation of a trust is conceived of as a conveyance of the beneficial interest in the trust property rather than as a contract.").

       On the significance of the settlor's domicile to a choice of law issue relating to a trust's validity, one authority states:
      It cannot... be stated as a rule of law that the validity of an inter vivos trust of movables is determined by the law of the state in which the settlor was domiciled at the time of the creation of the trust. The domicil of the settlor is only one of the factors to be considered in determining the validity of the trust.... The domicil of the settlor plays no such important part as is played by the domicil of a testator in disposing of his property by will.
      VA William F. Fratcher, Soott on Trusts § 597 (4th ed. 1989).

       As we have doted (see footnote 4), although no "witnesses" signed the trust document at the time Arthur executed it, the document does bear the contemporaneous signatures of the trustee and a notary. Elwyn makes no claim that Arthur's signature on the trust document is not genuine.

       Elwyn also argues that the trust violates Florida law through its inclusion of a "penalty" if he "contests the Trust going to William." Because the trust contains no such provision, we reject this argument. (It appears that a will executed by Arthur may have contained such a provision.)

       Elwyn asserts that upholding the validity of the trust by applying Wisconsin law "effectively creates Wisconsin as a jurisdiction whereby decedents can deliberately bypass the law of their jurisdiction of domicile," likening the circumstances to "a quickie Mexican or Nevada divorce" or "an offshore tax haven." We reject the assertion. This is not a case where a settlor or his trust had no relationship with the state of execution save the execution itself. In addition to the ties to Wisconsin noted in the text, we note that Arthur was previously a Wisconsin resident and returned here regularly, and that predecessors of the trust at issue had apparently included among their assets both Wisconsin real estate and a vendor's interest in a Wisconsin land contract.

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

       Although Wisconsin courts typically apply the cited tests for undue influence in determining whether a will was the result of undue influence, courts have also applied the tests in other contexts. See, e.g., Casper v. McDowell, 58 Wis. 2d 82, 90, 205 N.W.2d 753 (1973) (applying undue influence test in determining whether to set aside inter vivos transfers). We discern no reason why these tests should not also govern Elwyn's challenge to the trust at issue here.

       We are not certain which of the two undue influence tests Elwyn believes finds support in the record. The record does not contain the transcript of the summary judgment hearing, and his briefs to the court are not entirely clear on the matter.

       Although the trial court stated that its "primary focus" in rejecting Elwyn's motion was its tardiness, we affirm the trial court's ruling given that "it is immaterial what ground the trial court assigned as the reason for his ruling if it be in fact correct." See Haswell v. Reuter, 171 Wis. 228, 231, 177 N.W 8 (1920).


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Kristin D. Rizzuto and Joe Rizzuto, Plaintiffs-Appellants, v. Cincinnati Insurance Company and Jackson Street Real Estate, LLC., Defendants-Respondents, Hartford Underwriters Insurance Company, Orlandini Company, Inc., The Traveler's Insurance Company, and/or The Traveler's Property Casualty Insurance Company, C.D. Smith Construction Inc. and ABC Insurance Company, Defendants.
    Court of Appeals

      No. 02-1686.

      Submitted on briefs January 7, 2003.

    Decided February 25, 2003.

    2003 WI App 59
    (Also reported in 659 N.W.2d 476.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Michael Riley and Molly K. Martin of Atterbury & Riley, S.C., Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Michael S. Murray and Matthew W. Moran of Kasdorf Lewis & Swietlik, S.C., Milwaukee.
    Before Wedemeyer, RJ., Fine and Schudson, JJ.
   FINE, J.

¶ 1. Kristin D. Rizzuto and Joe Rizzuto appeal from an order granting summary judgment in favor of Jackson Street Real Estate, LLC, and its insurer, Cincinnati Insurance Company. The Rizzutos sued Jackson Street and Cincinnati Insurance under the Wisconsin Safe Place Statute, Wis. Stat. § 101.11, after Kristin Rizzuto was injured when a granite tile in an elevator owned by Jackson Street fell on her head. The trial court concluded that Jackson Street was not liable for Kristin Rizzuto's injuries because it did not have notice that the tile was defective. The Rizzutos claim that notice was not a required element of their prima facie case because: (1) the loose tile was a structural defect; and (2) a per se breach of the safe place statute occurred when the tile was allegedly installed in violation of the Wisconsin Administrative Code. We affirm.

HH

¶ 2. Kristin D. Rizzuto, who worked in the Jackson Street building, was injured on August 14, 1998, when a twenty-pound granite tile fell from an elevator wall onto her head. The granite tiles on the elevator walls were not an original part of the building. They were installed on the walls and the floors of the elevator during a reconstruction project in 1988. The tiles, as they were installed originally, were attached to the elevator walls by adhesive.

¶ 3. Jackson Street bought the building in January of 1998, approximately seven months before the accident. It remodeled the building prior to August of 1998. As part of the remodeling project, paint was removed from the doors and control panels of the elevators. After Kristin Rizzuto was injured, Jackson Street added mechanical anchors to secure the tiles.

¶ 4. The Rizzutos alleged, among other things, that Jackson Street violated the safe place statute because it "failed to construct, repair, or maintain such public building as to render same safe and failed to maintain said building such that its frequenters and invitees were free from danger to life, health, safety, or their welfare in the use of said building as a public building."

¶ 5. Kristin Rizzuto was deposed. She testified that the elevators "shook as you rode up in them." She admitted that she never made a formal complaint to her employer or to the maintenance department about the elevators.

¶ 6. A partner in Jackson Street and the manager of the building were also deposed. The manager testified that the company responsible for cleaning the elevators every night did not report any physical defects in the building. The partner also testified that no one complained about shaking in the elevators during July or August of 1998.

¶ 7. Jackson Street and Cincinnati Insurance sought summary judgment based upon the deposition testimony. They alleged that the granite tile that fell off of the elevator wall was a "condition associated with the structure" under the safe place statute. To be liable for a condition associated with the structure, the owner of a public building must have actual or constructive notice of its existence. See Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶ 23, 245 Wis. 2d 560, 571-572, 630 N.W.2d 517, 522-523. Thus, Jackson Street and Cincinnati Insurance argued that the Rizzutos' claim should be dismissed because there was no evidence that Jackson Street had actual or constructive notice that the tile was defective.

¶ 8. The Rizzutos asserted that summary judgment was inappropriate because an issue of fact existed as to whether Jackson Street had notice of the defective tile. The Rizzutos contended that Kristin Rizzuto's deposition testimony that the elevator shook established that "anyone riding in it would have had constructive notice of the potential for a défective tile." At a hearing on the motion, the Rizzutos further claimed that Jackson Street had constructive notice of a defect when it renovated the building in 1998 because, they argued:

[M] ateríais, tools, [and] men were all transported, workers were all transported in these elevators. So it's conceivable that something could have jarred, or jostled, or cracked one of these tiles during construction.
We're looking at a situation where they were actively engaged in monitoring the remodeling of the building. Yet both the manager and one of the owners testified that they didn't order an inspection before they opened for business.

¶ 9. As noted, the trial court granted the motion for summary judgment. It concluded that the safe-place-statute claim against Jackson Street and Cincinnati Insurance should be dismissed because the Riz-zutos did not establish that Jackson Street had notice that the tile was defective:

I just don't see the circumstance where they're under the Safe Place Statute; where Jackson Street Real Estate would have notice, or constructive notice that there was anything wrong with the elevator and these panels in the elevator. I don't see a prima facie negligence that creates the constructive notice of safe place responsibilities on Jackson Street. And I see the theories as it [sicj relates to Jackson Street and Cincinnati as speculative. And based upon that I am granting the motion of Cincinnati and Jackson Street for summary judgment.

II.

¶ 10. Our review of the trial court's grant of summary judgment is de novo, and we apply the same standards as did the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 N.W.2d 816, 820-821 (1987). First, we examine the pleadings to determine whether or not a proper claim for relief has been stated. Id., 136 Wis. 2d at 315, 401 N.W.2d at 820. If the complaint states a claim and the answer joins the issue, our inquiry then turns to whether any genuine issues of material fact exist. Ibid. Wisconsin Stat. Rule 802.08(2) sets forth the standard by which summary judgment motions are to be judged:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

¶ 11. The Wisconsin Safe Place Statute provides, as relevant: "Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building as to render the same safe." Wis. Stat. § 101.11(1). This section applies to three categories: (1) employers; (2) owners of places of employment; and (3) owners of public buildings. Naaj v. Aetna Ins. Co., 218 Wis. 2d 121, 126, 579 N.W.2d 815, 817 (Ct. App. 1998). It is undisputed that Jackson Street is the owner of a public building. See Wis. Stat. § 101.01(12). The owner of a public building is liable for: (1) structural defects; and (2) unsafe conditions associated with the structure of the building. Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 639-640, 284 N.W.2d 318, 322 (1979). "The classification of the hazardous property condition is often crucial in safe place cases because of the differing notice requirements for each." Barry, 2001 WI 101 at ¶ 22, 245 Wis. 2d at 570, 630 N.W.2d at 522.

¶ 12. A structural defect is "a hazardous condition inherent in the structure by reason of its design or structure." Id., 2001 WI 101 at ¶ 28, 245 Wis. 2d at 574, 630 N.W.2d at 524. "A property owner ... is liable for injuries caused by structural defects regardless of whether he or she knew or should have known that the defect existed." Id., 2001 WI 101 at ¶ 22, 245 Wis. 2d at 570, 630 N.W.2d at 522. Examples of a structural defect include: the failure to install a handrail along a staircase, Harnett v. St. Mary's Congregation, 271 Wis. 603, 614, 74 N.W.2d 382, 388 (1956), a hole in a roof without a surrounding railing, Umnus v. Wisconsin Pub. Serv. Corp., 260 Wis. 433, 435, 51 N.W.2d 42, 44 (1952), and a false ceiling that did not support a worker's weight, Bellmann v. National Container Corp., 5 Wis. 2d 318, 320-321, 92 N.W.2d 762, 763-764 (1958).

¶ 13. An unsafe condition associated with the structure of the building arises when an originally safe structure is not properly repaired or maintained. Barry, 2001 WI 101 at ¶¶ 25, 27, 245 Wis. 2d at 572-573, 630 N.W.2d at 523. A property owner must have actual or constructive notice of the defect to be liable for an unsafe condition associated with the structure of the building. Pettric v. Gridley Dairy Co., 202 Wis. 289, 293, 232 N.W. 595, 597 (1930). Examples of an unsafe condition associated with the structure include: improper lighting, id., 202 Wis. at 290, 232 N.W. at 596, a loose window screen, Wright v. St. Mary's Hosp., 265 Wis. 502, 503, 61 N.W.2d 900, 901 (1953), and a missing theater seat, Boutin v. Cardinal Theatre Co., 267 Wis. 199, 202, 64 N.W.2d 848, 850 (1954).

¶ 14. The Rizzutos allege for the first time on appeal that notice was not a required element of their claim because the loose tile was a structural defect. Jackson Street and Cincinnati Insurance thus argue that the Rizzutos waived this issue on appeal because they did not present it to the trial court. We disagree.

¶ 15. Generally, an appellate court will not review an issue that is raised for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443-444, 287 N.W.2d 140, 145 (1980). We may, however, review new arguments on an issue that has been raised before the trial court. See State v. Holland Plastics Co., 111 Wis. 2d 497, 505, 331 N.W.2d 320, 324 (1983). The Rizzutos1 claim on appeal is a variation of what they argued to the trial court. When the trial court determined that the Rizzutos did not present evidence that the defendants had notice of the loose tile, it implicitly concluded that the tile was an unsafe condition associated with the structure of the building. Accordingly, we now turn to the issue of whether the loose tile was a structural defect or an unsafe condition associated with the structure of the building.

¶ 16. The interpretation of the safe place statute is a question of law that we review de novo. Barry, 2001 WI 101 at ¶ 17, 245 Wis. 2d at 568, 630 N.W.2d at 521. "Safe place cases are highly fact-specific and arise under a multitude of circumstances that make it difficult to craft a precise test for determining whether a hazardous property condition is 'structural' or 'associated with the structure.'" Id., 2001 WI 101 at ¶ 24, 245 Wis. 2d at 572, 630 N.W.2d at 523. In this case, both sides substantially rely upon Barry v. Employers Mutual Casualty Co. to support their claims.

¶ 17. In Barry, Fred Barry filed a lawsuit against the Ameritech Corporation, the owner of a place of employment, after he fell on stairs in an Ameritech building. Id., 2001 WI 101 at ¶ 7, 245 Wis. 2d at 565-566, 630 N.W.2d at 520. The stairway, as it was constructed originally, was fully carpeted. Id., 2001 WI 101 at ¶ 4, 245 Wis. 2d at 565, 630 N.W.2d at 519. When the carpet began to come loose, Ameritech installed vinyl strips, called nosings, on the front of each step. Id., 2001 WI 101 at ¶ 5, 245 Wis. 2d at 565, 630 N.W.2d at 519. An inspection of the stairway revealed that the nosing on the step where Barry fell was loose and was partially detached from the step. Id., 2001 WI 101 at ¶ 8, 245 Wis. 2d at 566, 630 N.W.2d at 520. Barry sued Ameritech under the safe place statute, alleging that the loose nosing was a structural defect and, therefore, that notice was not required. Id., 2001 WI 101 at ¶ 10, 245 Wis. 2d at 566, 630 N.W.2d at 520.

¶ 18. Barry concluded that the nosings added to the stairway were an unsafe condition associated with the structure of the building. Id., 2001 WI 101 at ¶ 30, 245 Wis. 2d at 574, 630 N.W.2d at 524. It reasoned that "nosings added to the original stairway are not part of the original structure, but rather, are 'associated with the structure.'" Ibid, (emphasis in original; quoted source omitted). Barry thus held that the loose stairway-nosing was an unsafe condition associated with the structure of the building because "the accident was attributable to the failure to safely repair or maintain the steps rather than a defect in the original structural design or construction of the steps." Id., 2001 WI 101 at ¶ 30, 245 Wis. 2d at 575, 630 N.W.2d at 524.

¶ 19. In this case, the Rizzutos argue that the loose tile was "a defect in the original structural design or construction of the granite tile facings." They point to the fact that Jackson Street installed mechanical anchors to secure the tiles after Kristin Rizzuto's accident as evidence that the tiles, as they were installed originally, were unsafe. We disagree.

¶ 20. Like Barry, the loose tile in this case was an unsafe condition associated with the structure of the building. The Rizzutos offer no evidence that the granite tiles, as they were installed originally, were unsafe. Thus, they have presented no evidence that the tiles, as installed originally, constituted a "structural defect." Rather, the accident here was the result of an adhesive failure that occurred approximately ten years after the tile was installed originally. As with the loose nosing in Barry, the loose tile that hit Kristin Rizzuto was arguably a result of Jackson Street's failure to maintain the elevator in a safe manner. See id., 2001 WI 101 at ¶ 28, 245 Wis. 2d at 574, 630 N.W.2d at 524 ("a condition associated with the structure ... may develop over time"). Although both Barry and this case involve a renovation, here, unlike Barry, the remodeling was not undertaken to fix a potentially dangerous condition (loose carpeting), but was, rather, part of a general remodeling unconnected with any perceived or potential danger. But this superficial distinction is immaterial. The fact that Jackson Street installed mechanical anchors after Kristin Rizzuto was injured does not prove that the tiles were incorrectly installed originally. See id., 2001 WI 101 at ¶ 30, 245 Wis. 2d at 574-575, 630 N.W.2d at 524 ("To conclude [that nosings added to the original stairway are a structural defect] would be to accept.. . 'circular reasoning,' effectively 'transmorgrify[ing] all maintenance and repair defects into structural defects.'") (second bracket in original; quoted source omitted).

¶ 21. Accordingly, the Rizzutos were required to show that Jackson Street had notice that the tile was loose. See Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 290, 507 N.W.2d 136, 139 (Ct. App. 1993) (the nonmoving party has the burden to set forth specific facts to establish the elements on which they have the burden of proof at trial). The Rizzutos do not present any evidence that Jackson Street had actual knowledge of the defect. According to the deposition testimony, Jackson Street did not receive any complaints about a loose tile or elevators that "shook." Thus, the Rizzutos must show that Jackson Street had constructive notice.

"The general rule is that constructive notice is chargeable only where the hazard has existed for a sufficient length of time to allow the vigilant owner or employer the opportunity to discover and remedy the situation." Ordinarily, constructive notice cannot be found when there is no evidence as to the length of time the condition existed.

Kaufman v. State St. Ltd. P'ship, 187 Wis. 2d 54, 59, 522 N.W.2d 249, 251-252 (Ct. App. 1994) (quoted source and citation omitted).

¶ 22. We agree with the trial court that the 1998 remodeling was not enough to provide constructive notice. The fact that workers were using the elevators to transport equipment during the 1998 remodeling is simply not enough to provide proof of how long the defect in the tile existed or whether it existed so long that Jackson Street should have discovered it and remedied it. Accordingly, we affirm the trial court's grant of summary judgment.

¶ 23. The Rizzutos also allege that notice is not an element of their case because the granite tiles were installed in violation of the "Wisconsin Building Code." (Uppercasing omitted.) In support of this argument, the Rizzutos rely upon the report of John L. Donnelly, an elevator consultant. Donnelly reviewed the relevant sections of the Wisconsin Administrative Code that were in effect in 1988, the year the tiles were installed. He concluded:

It is my preliminary opinion with a reasonable degree of engineering certainty that if the granite tiles had been securely fastened and so supported that they would not loosen or become displaced while in ordinary service, that this incident would not have occurred. I base this preliminary opinion upon the review of the material supplied to me, my research of the applicable codes and standards, as well as my experience within the elevator industry.

¶ 24. The Rizzutos claim that the Donnelly Report supports their view that there was a per se violation of the safe place statute, and thus notice is not required. See Nordeen v. Hammerlund, 132 Wis. 2d 164, 166, 389 N.W.2d 828, 829 (Ct. App. 1986). Although the Rizzutos attached the Donnelly Report to their witness list, and alluded to the negligence per se argument in their brief opposing Jackson Street's motion for summary judgment, they only submitted the Donnelly Report to the trial court in connection with the summary judgment motion in their response to the reply brief submitted by Jackson Street and Cincinnati Insurance. The Rizzutos never developed before the trial court their contention that Jackson Street was guilty of negligence per se, and, accordingly, the trial court was unable to assess it without, essentially, first making their argument for them. We do not expect trial courts to decide issues that are not sufficiently developed. Barakat v. Department of Health & Soc. Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995) (we do not review arguments that are "amorphous and insufficiently developed"). As noted in State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897, 901 (Ct. App. 1995), "[w]e will not... blindside trial courts with reversals based on theories which did not originate in their forum." See also Wirth, 93 Wis. 2d at 443-444, 287 N.W.2d at 145 (generally, an appellate court will not review an issue raised for the first time on appeal).

By the Court. — Order affirmed.

       The Rizzutos also filed a claim against C.D. Smith Construction, Inc., Orlandini Company, Inc., and their respective insurers. The Rizzutos alleged that C.D. Smith Construction and Orlandini Company negligently installed the granite tiles. The negligent-installation claim was still pending before the trial court on a motion for summary judgment when this appeal was filed.

       Wisconsin Stat. § 101.01(12) provides:
      "Public building" means any structure, including exterior parts of such building, such as a porch, exterior platform, or steps providing means of ingress or egress, used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public or by 3 or more tenants. When used in relation to building codes, "public building" does not include a previously constructed building used as a community-based residential facility as defined in s. 50.01 (lg) which serves 20 or fewer residents who are not related to the operator or administrator or an adult family home, as defined in s. 50.01 (1).

       An employer, but not the owner of a public building, may also be liable for a third type of unsafe property condition: unsafe conditions not associated with the structure of the building. See Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶ 21 n.4, 245 Wis. 2d 560, 570, 630 N.W.2d 517, 522.

       The Rizzutos argue that the granite tiles were installed in violation of the "Wisconsin Building Code." (Uppercasing omitted.) As we discuss below, however, this claim is waived.

       We express no opinion whether evidence of installation of the anchors would be admissible. See Wis. Stat. Rule 904.07 (subsequent remedial measures generally not admissible).


author: CANE, C.J.

text:
    Walter Mills and the Mills Family Limited Liability Company, Plaintiffs-Appellants, v. Vilas County Board of Adjustments, Defendant-Respondent. Walter Mills and the Mills Family Limited Liability Company, Plaintiffs-Appellants, v. Vilas County Board of Adjustments, Defendant-Respondent. Lac Du Flambeau Band of Lake Superior Chippewa Indians, Plaintiff-Respondent, v. John Anderson, Vilas County Zoning Administrator, and Vilas County Zoning Committee, Defendants-Respondents.
    Court of Appeals

      No. 02-2546.

      Submitted on briefs February 6, 2003.

    Decided February 25, 2003.

    2003 WI App 66
    (Also reported in 660 N.W.2d 705.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gregory B. Conway of Lieb-mann, Conway, Olejniczak & Jerry of Green Bay.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Carol J. Brown of Brown & LaCounte, LLP of Madison.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Walter Mills appeals judgments upholding a building permit denial by the Vilas County Board of Adjustment and refusing to enforce a mediation agreement between Mills and the Lac du Flambeau Band of Lake Superior Chippewa Indians (Tribe). He contends the circuit court incorrectly concluded that the Vilas County zoning administrator could not issue a permit while the certiorari appeal of a previous denial of the same permit was pending. In addition, he contends the court erred when it refused to enforce the mediation agreement based on the political question doctrine and comity.

¶ 2. We conclude the trial court correctly determined that the certiorari appeal prevented the zoning administrator from issuing another permit and also that the court properly refused to enforce the mediation agreement based on principles of comity. Therefore, we affirm the judgments. We reject, however, the Tribe's request that we determine Mills's appeal is frivolous.

Background

¶ 3. Strawberry Island is a twenty-six-acre island in Flambeau Lake, which is located within the Lac du Flambeau reservation. The Mills family has owned the island since 1910. The island has great historical and cultural significance for the Tribe. It is also listed on the National Register of Historic Places and is considered a likely burial site by the Wisconsin State Historical Society under the Burial Sites Preservation Law. The island has not been developed in any substantial way.

¶ 4. In 1976, Mills received approval for a subdivision plat on the island and in 1995 he applied for a permit to build a single-family home and garage on one of the lots. Vilas County zoning administrator David Anderson denied the permit and gave Mills a list of five concerns he had with the proposed development. Mills appealed to the board of adjustment, which affirmed the denial. Mills then filed for a writ of certiorari with the circuit court.

¶ 5. While certiorari review was pending, Mills gave Anderson information to address the concerns. Anderson issued the building permit. The Tribe intervened as an interested party and appealed. The board concluded Anderson's decision was improper because of the pending certiorari review. Mills then sought certio-rari review of the board's decision. In addition, the Tribe sought injunctive relief to prevent Anderson from issuing further permits until the court could resolve both certiorari reviews.

¶ 6. The circuit court consolidated the three cases and affirmed the board's decision to uphold the administrator's original denial of the building permit. The court also determined the board was correct when it concluded Anderson improperly issued a new permit while certiorari review was pending. Finally, based on these two decisions, the court concluded the Tribe's request for injunctive relief was moot.

¶ 7. At the court's suggestion, the parties began mediation in December 1997 to discuss the Tribe's purchase of the island. Mills agreed to mediation on the conditions that the Tribe waive its sovereign immunity and that its representatives have the authority to bind the Tribe. The Tribe agreed to waive its immunity. It further agreed that at least a majority of its council, which would have to approve any proposal, would participate directly in the mediation to avoid unnecessary delays.

¶ 8. In June 1998, the parties agreed that the Tribe would purchase the island for $1.5 million. After Mills accepted the Tribe's offer, the council members noted the Tribe's constitution might require a referendum to approve the expenditure. The parties' written agreement states the Tribe will pay Mills $1.5 million for the island "subject to the approval of Tribe membership, if needed." In July 1999, the Tribe informed Mills that it intended to hold a referendum because of a clause in the Tribe's constitution requiring a referendum for expenditures of more than $10,000 of the Tribe's funds held in trust by the Department of the Interior. The Tribe said the use of trust funds was necessary because its gaming funds alone were insufficient.

¶ 9. The referendum, held in August 1999, failed. The parties agreed to reenter mediation, but their attempt at resolution failed after one brief session. Mills then moved to enforce the original mediation agreement, arguing the Tribe's constitution did not require a referendum. The court denied the motion, concluding Mills should have challenged the decision to hold the referendum prior to the vote and may have waived any objection to the result by failing to do so. In addition, the court noted Mills was asking the court to overturn the results of an election. The court concluded the referendum was a political question and declined to address the dispute. In addition, the court said respect for the Tribe's sovereignty and the doctrine of comity weighed against enforcing the agreement. Mills appeals.

Discussion

¶ 10. We first address Mills's claim the zoning administrator had the authority to grant the building permit. He argues the administrator's initial rejection of the permit was conditional and, after Mills satisfied the conditions, the administrator could properly issue the permit. Mills further contends the board erred when it reversed because of the pending certiorari appeal. We disagree.

¶ 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. Fabyan v. Waukesha County Board of Adj., 2001 WI App 162, ¶ 11, 246 Wis. 2d 851, 632 N.W.2d 116. Mills's challenge to the board's conclusion that the administrator could not issue a new permit when the prior denial was on appeal presents a jurisdictional issue, which is a question of law we review de novo. See State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 840, 472 N.W.2d 839 (Ct. App. 1991).

¶ 12. The board's authority is governed by Vilas County's zoning regulations. Article IX, § 9.3(c), of Vilas County's zoning ordinance reads in part: "The Zoning Administrator may also require any additional information necessary to decide upon the issuance of a Zoning permit." Article X, § 10.4(B), states: "An appeal shall stay all proceedings in furtherance of the action appealed from." Finally, article X, § 10.4(D) reads: "All decisions and findings of the Board of Adjustment on appeal shall in all instances be final administrative determinations and shall thereafter be only subject to review by a court of law upon the filing of a writ of certiorari within 30 days of the board's decision."

¶ 13. Mills argues that the provision allowing the administrator to request additional information allows the grant of conditional permits and, therefore, Anderson properly issued the permit. We disagree. The interpretation of an ordinance is a question of law we review de novo. See Hansman v. Oneida County, 123 Wis. 2d 511, 514, 366 N.W.2d 901 (Ct. App. 1985). The ordinance says the administrator may request additional information "necessary to decide upon the issuance of a Zoning permit." We read the ordinance to require that the administrator request the information before making the decision, not after, as was the case here.

¶ 14. Further, we determine that even had the permit been conditional, the other two quoted sections of the ordinances would have required the board to reach the conclusion it did. Mills's certiorari appeal of the permit denial stayed any further proceedings regarding that denial under article X, § 10.4(B). Further, the board's decision was final under article X, § 10.4(D), and the only appeal was to the circuit court. Even if we were to construe the permit denial as conditional, Mills gave up any opportunity to have the administrator revisit his decision by requesting certiorari review.

¶ 15. Mills argues that his compliance with the conditions rendered the certiorari proceedings moot. We disagree. Not only would this contravene the plain language of Vilas County's ordinances, it would also, as the circuit court noted, create "jurisdictional chaos." If a zoning ordinance provides for an appeal to a board of adjustment from an adverse ruling of an administrative officer and circuit court review of the hoard's decision is also provided by statute, such remedies are exclusive of all others. Nodell Invest. Corp. v Glendale, 78 Wis. 2d 416, 423, 254 N.W.2d 310 (1977) (citing Jefferson County v. Timmel, 261 Wis. 39, 63-64, 51 N.W.2d 518 (1952)). As the circuit court noted, parties often erroneously resort to court before exhausting their administrative remedies. When the party is properly before the court, however, the court has exclusive jurisdiction over the dispute, and the administrative agencies cannot reevaluate their decision until the court relinquishes that jurisdiction. To allow otherwise would be to encourage conflicting and competing decisions of courts and various administrative agencies.

¶ 16. We next address the trial court's refusal to enforce the mediation agreement. Mills argues the court incorrectly applied the political question doctrine to the dispute and refused to decide the case on its merits. Instead, Mills claims, the court should have enforced the agreement because the Tribe's constitution did not require a referendum. While we agree the political question doctrine does not apply to this case, we conclude the trial court nonetheless correctly refused to address the merits of the dispute because of the doctrine of comity.

¶ 17. The political question doctrine is invoked by courts declining to address issues better left resolved by other branches of government. See Vincent v. Voight, 2000 WI 93, ¶ 192, 236 Wis. 2d 588, 614 N.W.2d 388 (Sykes J., concurring in part, dissenting in part). The doctrine is based upon separation of powers principles and essentially states, "The judiciary should not be drawn into deciding issues that are essentially political in nature, exclusively committed by the constitution to another branch of government and not susceptible to judicial management or resolution." Id.

¶ 18. The political question doctrine does not apply here. Central to the doctrine are notions of the separation of powers. The court's use of the doctrine here focused on the Tribe's decision to hold the referendum and its results. This does not strictly present a political question. It does not involve two branches of the same government, but rather two branches of two different governments. It would not be for Wisconsin courts to determine what constitutes a political question within the Lac du Flambeau Tribe.

¶ 19. Instead, the court's invocation of the doctrine of comity correctly addresses its role regarding the referendum. Under this doctrine, courts will, as a matter of discretion, rather than obligation, defer to the assertion of jurisdiction or give effect to the judgments of other states or sovereigns out of mutual respect and for the purpose of furthering the orderly administration of justice. Teague v. Bad River Band of Chippewa Indians, 2000 WI 79, ¶ 35, 236 Wis. 2d 384, 612 N.W.2d 709. The scope of comity is determinable as a matter of judicial policy, and we review the circuit court's decision under the erroneous exercise of discretion standard. See id. (citing International Harvester Co. v. McAdam, 142 Wis. 114, 124 N.W 1042 (1910)). A court properly exercises discretion when it considers the facts of record under the proper legal standard and reasons its way to a rational conclusion. Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991).

¶ 20. The circuit court's justification for invoking comity was fostering and maintaining the relationship between state and tribal governments. Specifically, the court pointed to the problems resulting from overlaps in state and tribal jurisdiction, the efforts the governments have made to resolve these concerns and the admonishment state courts have received to respect tribal decisions. The court noted Mills was essentially asking the court to overturn the decision of a sovereign nation. We conclude these considerations reflect the court's exercise of discretion.

¶ 21. The court's decision focuses primarily on the outcome of the referendum. While we agree this was proper, we conclude the tribe's decision to hold the referendum should also be deferred to based upon principles of comity. The mediation agreement stated the purchase was subject to the tribal membership's agreement, if needed. The parties agree "if needed" means if required by the tribal constitution. The record shows the tribal council determined it would need to use trust funds, in part, to pay for the island, and under the Tribe's constitution, a referendum is required if more than $10,000 of these funds is to be expended. Comity does not allow Wisconsin courts to second guess that decision.

¶ 22. Mills argues comity should not apply because the Tribe waived its sovereign immunity and also agreed to allow the tribal council to bind the Tribe to any agreement reached. This argument, however, is undercut by Mills's acceptance of the agreement's language. The Tribe alerted Mills at mediation that a referendum might be required. Mills agreed to this condition, which affected the council's ability to bind the Tribe. Further, the Tribe's consent to suit in state court is not a waiver of its sovereign right to interpret and apply its own laws.

¶ 23. Nor do we accept Mills's claim that comity only applies when two courts claim jurisdiction. He relies on the specific facts of the supreme court's decision in Teague, which involved a state court and a tribal court disputing which had jurisdiction over an employment dispute. Teague, 2000 WI 79 at ¶ 1. Comity, however, encompasses more than just the competing jurisdiction of courts. It is the recognition that one state allows within its territory to legislative, executive or judicial acts of another, having due regard to duty and convenience and to the rights of its own citizens. Estate of Steffke, 65 Wis. 2d 199, 203, 222 N.W.2d 628 (1974).

¶ 24. Additionally, Mills attacks the Tribe's actions as incorrect under its constitution and as a ruse to back out of the agreement. He contends the Tribe relied on different rationales to justify the referendum when it informed him of the decision to hold the vote and before the circuit court. In addition, he argues the referendum's wording and actions by the tribal council prior to the vote suggest the referendum was merely advisory rather than required. He attacks the Tribe's decision to use trust funds as merely an excuse to justify the referendum and further claims the Tribe should not be allowed to use the trust funds because the mediation agreement does not contemplate their use.

¶ 25. Principles of comity, however, lead us to conclude we should not address Mills's concerns. The Tribe's rationale for requiring the referendum is a result of the council's interpretation of the constitution. Further, the referendum's wording and the decision to use trust funds to pay for the island are legislative decisions by the council. Comity requires Wisconsin courts to defer not only to the council's interpretation of the constitution, but also its budgetary and policy decisions. See id. Further, the mediation agreement's silence regarding the source of the Tribe's funding supports the argument we should defer to the Tribe's decision. The absence of a specified funding source suggests that the Tribe alone would determine the purchase money's source. The council's decision to use trust funds is a legislative choice that, according to its interpretation of the constitution, required a referendum. Whether the Tribe is legally correct or had questionable motives are not issues we should address.

¶ 26. Our decision hinges on the agreement's use of the "subject to the approval of tribe membership, if needed" language. Without this language, the court would likely have been able to hold the Tribe to the agreement because of its sovereign immunity waiver. The parties, however, conditioned their agreement on obtaining the approval of the Tribe's membership, if it was needed. The Tribe, interpreting its own law, determined it was. Our reliance on comity defers to the Tribe's law and the council's interpretation of it.

¶ 27. Mills also contends he did not waive his right to challenge the referendum by failing to prevent the vote from taking place. We do not address this argument because of our conclusion that the court correctly applied the doctrine of comity. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

¶ 28. Finally, the Tribe has moved for costs and fees for a frivolous appeal, pursuant to Wis. Stat. § 809.25(3). The Tribe asserts Mills's appeal lacks good faith and is intended to harass the Tribe because it is a continuing step in his attempt to prolong the legal dispute over the island. Also, the Tribe argues Mills should have known the portions of his appeal were without a good faith argument for an extension, modification or reversal of existing law. We disagree.

¶ 29. In order to impose sanctions against a party for a frivolous appeal under Wis. Stat. § 809.25, we must determine whether one or more of the following exist:

1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

¶ 30. We cannot conclude that Mills's appeal was filed to harass the Tribe or that he should have known the appeal was without any reasonable basis in the law. The scope of comity, as noted, is a question of judicial policy and we determine Mills's appeal presents a good faith argument why it should not have applied in this situation. Further, Mills correctly argued the court misapplied the political question doctrine. The appeal is not frivolous.

By the Court. — Judgments affirmed.

       The Tribe opened with an offer of $800,000. Each party accuses the other of walking out shortly thereafter.