author: FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Christopher Swiams, Defendant-Appellant.
    Court of Appeals

      No. 04-0299-CR.

      Oral argument September 28, 2004.

    Decided October 19, 2004.

    2004 WI App 217
    (Also reported in 690 N.W.2d 452.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Jefren E. Olsen, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of and oral argument by David J Becker, assistant attorney general, and Peggy A. Laut-enschlager, attorney general.

      Before Fine, Curley and Kessler, JJ.
   FINE, J.

¶ 1. Christopher Swiams appeals the trial court's order directing that he be reconfined in the Wisconsin State Prisons following the revocation of the extended-supervision part of his bifurcated sentence, and from the trial court's order denying his motion for postconviction relief. We reverse the trial court's order denying his motion for postconviction relief, and remand for further proceedings.

I.

¶ 2. Christopher Swiams pled guilty to the delivery of fewer than five grams of cocaine as a second or subsequent offense, see Wis. Stat. §§ 961.41(l)(cm)l and 961.48, and was sentenced on November 20, 2001, to a bifurcated term of fifteen months in the Wisconsin State Prisons and twenty-seven months of extended supervision, see Wis. Stat. § 973.01. When sentenced, he formally indicated that he did not intend to seek postconviction relief. Judgment of conviction was entered on November 21, 2001.

¶ 3. Swiams served the confinement portion of his sentence and was released to serve the twenty-seven months of extended supervision. The Department of Corrections revoked his extended supervision on April 17, 2003, based on things Swiams did in March of 2003. See Wis. Stat. § 302.113(9)(am) (2001-02). Swiams was then returned to court for imposition of a period of reconfinement. See ibid. On May 30, 2003, the trial court ordered that Swiams be sent to prison for eighteen months. Swiams sought review of the trial court's reconfinement order by filing a notice of intent to pursue postconviction relief under Wis. Stat. Rule 809.30 on June 6, 2003. The trial court denied his motion for postconviction relief, ruling that Swiams's postconviction rights under Rule 809.30 had long expired.

¶ 4. The question presented by this appeal is whether persons sentenced to a bifurcated term of imprisonment whose extended supervision is revoked may seek relief under Wis. Stat. Rule 809.30 from the trial court's reconfinement order. We hold that they may.

II.

A.

¶ 5. This appeal requires us to apply several interrelated statutes to facts that are not in dispute. Thus, our review is de novo. See State v. Wilson, 170 Wis. 2d 720, 722, 490 N.W.2d 48, 50 (Ct. App. 1992), denial of habeas corpus aff'd, Wilson v. McCaughtry, 994 F.2d 1228 (7th Cir. 1993). Application of statutes requires that we "faithfully give effect to the laws enacted by the legislature." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 662, 681 N.W.2d 110, 123-124 ("It is the enacted law, not the unenacted intent, that is binding on the public."). In doing so, "[w]e assume that the legislature's intent is expressed in the statutory language." Id., 2004 WI 58, ¶ 44, 271 Wis. 2d at 662, 681 N.W.2d at 124. If that language is clear, we apply it as it reads because the words used by the legislature are the best evidence of its intent. Id., 2004 WI 58, ¶ 45, 271 Wis. 2d at 663, 681 N.W.2d at 124. Further, we may use context to derive the meaning of words that, when viewed in isolation, appear unclear. Ibid. External sources of legislative intent, that is matters not appearing in statutes themselves, id., 2004 WI 58, ¶ 50, 271 Wis. 2d at 666, 681 N.W.2d at 125, can help to discern legislative intent when the statutory language is not clear on its face, id., 2004 WI 58, ¶¶ 50-51, 271 Wis. 2d at 666-667, 681 N.W.2d at 125-126. External sources may also help "confirm or verify a plain-meaning interpretation." Id., 2004 WI 58, ¶ 51, 271 Wis. 2d at 666-667, 681 N.W.2d at 126. We examine the statutes against this background.

B.

¶ 6. Under the law applicable to Swiams when he was sentenced, the trial court was required to "impose a bifurcated sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113." Wis. Stat. § 973.01(1) (1999-2000). As we have seen, that is what the trial court did. Wisconsin Stat. § 302.113(9)(am) (2001-02) reads, as material to this appeal:

If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence.

(Footnote added.) The Department of Corrections was the "reviewing authority" in Swiams's case. After the trial court ordered that Swiams be sent back to prison, Swiams filed a notice of intent to pursue postconviction relief under Wis. Stat. Rule 809.30 within twenty days of entry of the reconfinement order. Rule 809.30(2)(b) requires that a defendant filing "a notice of intent to pursue postconviction ... relief' must do so, as material here, "[w]ithin 20 days after the date of sentencing." As we have seen, the trial court ruled that Rule 809.30 did not apply because the twenty days under the rule was triggered by the original November 2001 sentencing. The trial court explained its ruling in a written decision:

Although it may be argued that a defendant has a right to counsel at the reincarceration hearing and for purposes of appealing the results of the revocation hearing, that right must be created by the legislature. Section 302.113(9), Stats., merely allows the court to take over the function originally performed by the administrative law judge at the revocation hearing, i.e. to determine the reincarceration time period after revocation of extended supervision. Act 109 (eff. 2/1/03) transferred that responsibility to the courts but did not create any additional appellate rights to challenge the amount of reincarceration time imposed by the court; the only challenge to a revocation period proceeding currently in statutory existence is a petition for writ of certiorari. Consequently, the only remedy at this juncture before the trial court is a motion to modify sentence predicated on the existence of a new factor. All of the other appellate timelines have expired, and the legislature has not provided for any other remedy. The court does not find that a new factor exists in this instance.

(Footnote added.)

¶ 7. Swiams does not contest the trial court's determination that modification of the reconfinement order was not warranted under a "new factor" analysis. See Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69, 73 (1975) ("New factor" is fact or set of facts highly relevant to imposition of sentence, but not known to trial court at original sentencing, either because it was not then in existence or because it was unknowingly overlooked by the parties.). He argues, however, that Wis. Stat. Rule 809.30 does provide the mechanism for him to challenge the trial court's reconfinement order.

¶ 8. The State, on the other hand, takes a middle course. It eschews the trial court's view that persons challenging reconfinement orders may do so only if they show a "new factor." The State contends, however, that reconfinement orders may only be reviewed via common-law certiorari and not under Wis. Stat. Rule 809.30. It relies on State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995) (per curiam).

¶ 9. Bridges held that a trial court's order extending the maximum period of confinement of an intensive-sanctions sentence under Wis. Stat. §§ 301.048 and 973.032 (1993-94) was not a "sentence" as that term is used in Wis. Stat. Rule 809.30, Bridges, 195 Wis. 2d at 257-258, 536 N.W.2d at 154, and was thus reviewable only by common-law certiorari, id., 195 Wis. 2d at 258-259, 536 N.W.2d at 154. This preserved Bridge's ability to get review of the extension order as a matter of right because Rule 809.30, as we have seen, requires that a notice of intent to seek postconviction relief be filed "[w]ithin 20 days after the date of sentencing," Rule 809.30(2)(b), and those twenty days had expired when he filed his pro se notice of appeal forty-five days after entry of the extension order, Bridges, 195 Wis. 2d at 259, 536 N.W.2d at 154.

¶ 10. In ruling that Bridges could seek review via common-law certiorari, Bridges noted that certiorari "may be used to review judicial decisions." Id., 195 Wis. 2d at 258, 536 N.W.2d at 154. Bridges cited State ex rel. Department of Health and Social Services v. Circuit Court, 84 Wis. 2d 707, 711-712, 267 N.W.2d 373, 375 (1978) (per curiam), in support. Bridges, 195 Wis. 2d at 258, 536 N.W.2d at 154. Department of Health and Social Services recognized, however, in haec verba and by a decision upon which it relied, that certiorari review of a judicial act determines only whether the judicial tribunal was acting within its jurisdiction. Id., 84 Wis. 2d at 711-712, 267 N.W.2d at 375; see Krueger v. Cone, 106 Wis. 522, 523-524, 81 N.W 984, 985 (1900) (cited by Department of Health & Soc. Servs., 84 Wis. 2d at 712, 267 N.W.2d at 375); Barnes v. Schmitz, 44 Wis. 482, 482 (1878) (cited by Krueger, 106 Wis. at 524, 81 N.W. at 985); see also State v. Gibbons, 71 Wis. 2d 94, 99-100, 237 N.W.2d 33, 35-36 (1976) (certiorari proper mechanism to review whether trial court had jurisdiction to impose conditions on a sentence to a state prison).

¶ 11. Opposing the State's reliance on Bridges, Swiams points to State v. Mahone, 127 Wis. 2d 364, 379 N.W.2d 878 (Ct. App. 1985). Mahone assumed that a person absolved of criminal responsibility because of a mental disease or defect and conditionally released under Wis. Stat. § 971.17(2) from confinement could use Wis. Stat. Rule 809.30 to challenge revocation of that conditional release and recommitment pursuant to § 971.17(3), even though the record in Mahone did "not reveal whether Mahone pursued his appeal in a proper manner under Rule 809.30." Mahone, 127 Wis. 2d at 381 n.7, 379 N.W.2d at 887 n.7. The State had argued in Mahone that Wis. Stat. § 808.04, applicable to appeals in civil cases, governed, and, accordingly, Mahone's appeal was irretrievably untimely. Mahone, 127 Wis. 2d at 381 n.7, 379 N.W.2d at 886-887 n.7. Mahone, on its own motion, enlarged the time for Mahone to file his appeal, which would not have been possible if § 808.04 applied. Mahone, 127 Wis. 2d at 381 n.7, 379 N.W.2d at 887 n.7.

¶ 12. As we explain below, neither Bridges nor Mahone is helpful here.

C.

¶ 13. Wisconsin Stat. § 974.02 governs appeals and postconviction relief in criminal cases. Section 974.02(1) (2001-02) provides, as material here:

A motion for postconviction relief other than under s. 974.06 or 974.07 (2) by the defendant in a criminal case shall be made in the time and manner provided in s. 809.30. An appeal by the defendant in a criminal case from a judgment of conviction or from an order denying a postconviction motion or from both shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30.

(Footnote added).

¶ 14. Wisconsin Stat. Rule 809.30, which, as Wis. Stat. § 974.02(1) provides, governs, among other things, an "appeal by the defendant in a criminal case. .. from an order denying a postconviction motion," and has several interrelated provisions that are material to this appeal.

• "A person seeking postconviction relief in a criminal case... shall comply with" Rule 809.30. Rule 809.30(2)(a). This incorporates the twenty-day requirement in Rule 809.30(2)(b).
• The phrase "[p]ostconviction relief' is defined as "an appeal or a motion for postconviction relief in a criminal case, other than an appeal, motion, or petition under ss. 302.113 (7m), 302.113 (9g), 973.19, 973.195, 974.06 or 974.07 (2)." Rule 809.30(l)(c).
• " 'Sentencing' means the imposition of a sentence, a fine, or probation in a criminal case." Rule 809.30(l)(f).

There is no dispute but that the revocation of Swiams's extended supervision and his return to court under Wis. Stat. § 302.113(9)(am) (2001-02) was in a "criminal" case. Although the State argues that his desired contest of the trial court's reconfinement order did not seek "postconviction relief1 as that term is used in Rule 809.30, the clear and common-sense assessment is that the motion that the trial court denied was, in fact, Swiams's motion for "postconviction relief1 (the motion was filed after his conviction, and the motion sought relief from something that the trial court did after his conviction) as defined by Rule 809.30(1)(c), quoted above. Indeed, although Rule 809.30(1)(c) specifically excludes relief sought under § 302.113(9)(g) (certiorari review of decision whether to revoke extended supervision) from the definition of "postconviction relief," it did not exclude from the definition relief from a reconfinement order entered under § 302.113(9)(am). The core of the disagreement between Swiams and the State thus resolves to whether the reconfinement proceeding was a "sentencing."

¶ 15. Swiams concedes that his November 20, 2001, sentencing was a "sentencing" as that term is used in Wis. Stat. Rule 809.30. He contends, however, that the reconfinement proceeding was also a "sentencing" as that term is defined by Rule 809.30(l)(f) and used in Rule 809.30(2)(b). Accordingly, he argues that his notice of intent to pursue postconviction relief was timely.

¶ 16. Although the word "sentencing" might be thought by non-lawyers to refer to any process by which a penalty is imposed on a person found guilty of an offense, see The American Heritage Dictionary of the English Language 1644 (3d ed. 1992) ("[a] court judgment, especially a judicial decision of the punishment to be inflicted on one adjudged guilty"), it has conflicting meanings in Wisconsin law.

• Custody on a parole hold is "actual confinement serving a criminal sentence" under Wis. Stat. § 939.62(2) so that the time on the hold does not count toward the five years that a person must remain crime-free so as not to be "a repeater" under § 939.62(1). State v. Price, 231 Wis. 2d 229, 235-236, 604 N.W.2d 898, 901 (Ct. App. 1999).
• Custody on a parole hold is not a "sentence" to which a sentence may be made consecutive under Wis. Stat. § 973.15(2)(a) ("court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence"). Guyton v. State, 69 Wis. 2d 663, 666-667, 230 N.W.2d 726, 727-728 (1975) ("sentence" imposed after revocation of parole does not start until person "returned to prison").
• Probation is not a "sentence" and thus probationer in custody as a condition of probation is not entitled to good-time credit available to those serving a "sentence," even though a relevant statute provided that "[a] sentence of probation shall have the effect of placing the defendant in the custody of the department." Prue v. State, 63 Wis. 2d 109, 114-116, 216 N.W.2d 43, 45-46 (1974) (emphasis added).
• Probation is a "sentence" so that a post-revocation motion to withdraw a guilty plea is governed by the standard applicable to those who seek to withdraw their pleas after sentencing. State v. Booth, 142 Wis. 2d 232, 234-235, 237, 418 N.W.2d 20, 21, 22 (Ct. App. 1987).
• Person on "straight probation" is "in custody under sentence of a court" and is thus entitled to seek relief under Wis. Stat. § 974.06. State v. Mentzel, 218 Wis. 2d 734, 737-744, 581 N.W.2d 581, 582-584 (Ct. App. 1998).

If anything is clear it is that the word "sentence" is not; the word is colored by the light with which it is viewed. Id., 218 Wis. 2d at 740, 581 N.W.2d at 583 (meaning of "sentence depends on the particular statute involved and the setting to which the statute applies"). That the same word may have different meanings in varying contexts is not unique or something from which to shrink. See Kalal, 2004 WI 58, ¶ 49, 271 Wis. 2d at 665, 681 N.W.2d at 125 ("Many words have multiple dictionary definitions; the applicable definition depends upon the context in which the word is used."). A neutral-principled analysis requires that we apply the meaning that is most congruent with "the purpose of the particular statute under consideration." Price, 231 Wis. 2d at 234, 604 N.W.2d at 901.

¶ 17. Statutes that permit the deprivation of a persons liberty because of that person's crime must ensure that the public is protected from the person and also that the person not have his or her liberty circumscribed unfairly. Thus, for example, Wis. Stat. § 973.017(2), requires every court making "a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003," to consider, in addition to any applicable sentencing guidelines, the following: (1) "[t]he protection of the public"; (2) "[t]he gravity of the offense"; (3) "[t]he rehabilitative needs of the defendant"; and (4) "[a]ny applicable mitigating factors and any applicable aggravating factors.” § 973.017(2)(a), (ad), (ag), (ak), (b). Although a "sentencing decision” under § 973.017 "means a decision as to whether to impose a bifurcated sentence under s. 973.01 or place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation," § 973.017(1), the factors spelled out in § 973.017(2) predate the enactment of § 973.017 by 2001 Wis. Act 109, and are a codification of pre-existing sentencing law, see State v. Echols, 175 Wis. 2d 653, 682, 499 N.W.2d 631, 640-641 (1993).

¶ 18. Sentencing is, and always has been, left to the trial courts reasonable exercise of its discretion. State v. Gallion, 2004 WI 42, ¶¶ 17-18, 270 Wis. 2d 535, 549, 678 N.W.2d 197, 203. But there must also be the safeguard of meaningful appellate review. Id., 2004 WI 42, ¶¶ 19, 76, 270 Wis. 2d at 549-550, 572, 678 N.W.2d at 203, 214. Consistent with the appropriate method of statutory analysis recognized by both Kalal and Price, that we have discussed, this need for meaningful appellate review of a trial court's decision to take away a person's liberty must be our polestar.

¶ 19. We are presented with three possible alternatives in assessing Swiams's appellate rights in connection with the reconfinement order about which he complains.

¶ 20. First, we could adopt the trial court's approach and rule that a defendant whose extended supervision has been revoked may only challenge a reconfinement order if he or she shows a "new factor." This would effectively immunize from review a trial court's decision under Wis. Stat. § 302.113(9)(am) (2001-02) as to how long the defendant should be reconfined; the only avenues of complaint would be if the trial court either ignored the mandate that the defendant may "be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence," ibid, (emphasis added), or misapplied the law as to what is or is not a "new factor." As recognized by the Wisconsin Criminal Penalties Study Committee, which advised the legislature as Wisconsin's truth-in-sentencing scheme made it through the legislative process, Gallion, 2004 WI 42, ¶ 29, 270 Wis. 2d at 553, 678 N.W.2d at 205, this would hardly be consistent with the need for meaningful appellate review of trial court reconfinement orders that could result in the defendant being "returned to prison for a substantial length of time." State of Wis., Criminal Penalties Study Comm., Final Report, at 131 (1999).

¶ 21. Second, we could adopt the State's approach and rule that Swiams's remedy is review by common-law certiorari. As the trial court noted, before the responsibility for determining the length of an offender's reconfinement was vested in the trial courts, that decision was made by an administrative agency. See footnote 4 of this opinion. Certiorari review of decisions by administrative agencies involves a fourfold inquiry:

(1) whether the board kept within its jurisdiction, (2) whether the board acted according to law, (3) whether the board's action was arbitrary, oppressive or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that the board might reasonably make the order or determination in question.

Drow v. Schwarz, 225 Wis. 2d 362, 368, 592 N.W.2d 623, 627 (1999). On the other hand, as we have seen, certiorari review of decisions by judicial tribunals is limited to whether the tribunal had the jurisdiction to do what it did. Department of Health Soc. Servs., 84 Wis. 2d at 712, 267 N.W.2d at 375. As Swiams observes in his reply brief, a review of a trial court's reconfinement order by common-law certiorari would provide "no review at all" — or, at the very least, review so limited as to be the functional equivalent of "no review."

¶ 22. Third, we could permit defendants seeking to challenge reconfinement orders to do so under Wis. Stat. Rule 809.30 by recognizing the common-sense reality that a hearing to determine whether a person should be sent to prison (or returned to prison) and for how long is a "sentencing." Indeed, although the Criminal Penalties Study Committee opined that the recon-finement "disposition hearing is not a 'resentencing,'" Final Report, at 130, it appears from the legislative history that we have been provided by Swiams, and that has not been questioned by the State, that the "sentencing" word was shunned to avoid what the then staff counsel to the Criminal Penalties Study Committee, and now circuit court judge, Michael B. Brennan reflected in a May 7, 1999, e-mail memorandum to Jefren E. Olsen, then a drafting attorney with the Legislative Reference Bureau, and now an assistant state public defender (and the attorney representing Swiams on this appeal), said were double-jeopardy concerns if the re-confinement order were viewed as a "resentencing." E-mail from Michael B. Brennan, staff counsel to the Criminal Penalties Study Committee, to Jefren E. Olsen, drafting attorney with the Legislative Reference Bureau (May 7, 1999, 12:33 CST) (on file with the court). Nevertheless, it is clear from that legislative history that the drafters of what became Wis. Stat. § 302.113(9)(am) routinely used the term "sentencing" to describe the order of recommitment following revocation of a prisoner's extended supervision. Thus, to quote a readily accessible example, a subcommittee referred to the reconfinement disposition hearing as a "resentencing" in one of the Final Report's appendices: "The subcommittee recommends that at the time of resentencing, the trial court has authority to specify a new bifurcated sentence which may not be longer than but may be equal to or less than the [extended supervision] period in the offender's original sentence." Final Report, Appendix H, at 2 (emphasis added).

¶ 23. In light of the need for meaningful assessment of decisions that deprive persons of their liberty, Gallion, 2004 WI42, ¶¶ 19, 76, 270 Wis. 2d at 549-550, 572, 678 N.W.2d at 203, 214, we perceive no reason why a "sentencing" under Wis. Stat. Rule 809.30 should not encompass reconfinement under Wis. Stat. § 302.113(9)(am) (2001-02). Indeed, other than a concern expressed at oral argument that to require the trial courts to fully explain a reconfinement order might take too much time, the State does not point to any adverse consequences that could possibly flow from permitting defendants to seek review of reconfinement orders via Rule 809.30, and we see none. We reject the State's attempted expediency-based justification for any truncation of the sentencing explanation to which every person deprived of his or her liberty is entitled. As for the alleged conflict between Bridges and Mahone, we do not perceive any. Each decision involved not only statutory schemes that were different from each other, but also different from the one we consider here. As Price teaches, "the purpose of the particular statute under consideration" is a crucial factor in determining legislative intent. Price, 231 Wis. 2d at 234, 604 N.W.2d at 901. As we have seen, both Bridges and Mahone preserved appellate review as of right by the appellants in those cases. Moreover, Mahone predates Bridges, and insofar as Bridges conflicts with Mahone, Bridges must give way. See State v. Bolden, 2003 WI App 155, ¶ 9-11, 265 Wis. 2d 853, 858-859, 667 N.W.2d 364, 366-367 (if two court of appeals decisions conflict, the first governs). Accordingly, we reverse the order of the trial court dismissing Swiams's motion for postconviction relief, and remand for further proceedings.

By the Court. — Order reversed and cause remanded.

       Wisconsin Stat. § 302.113(9)(am) was so numbered and its text put into its present form by 2001 Wis. Act 109, § 397, made effective to those persons whose extended-supervision-revocation proceedings were started on or after February 1, 2003. 2001 Wis. Act 109, §§ 9359(4), 9459(1).

       WISCONSIN Stat. § 973.01(1) was amended effective February 1, 2003, by 2001 Wis. Act 109, §§ 1114, 9459(1). As material to this appeal, there are no substantive differences between the version in effect when Swiams was sentenced and the current version.

       As we have seen in footnote 1 of this opinion, Wis. Stat. § 302.113(9)(am) was put into its present form by § 397 of 2001 Wis. Act 109. The changes are as follows (deletions indicated by interlineations, additions indicated by underlining): ■
      If a person released to extended supervision under this section violates a condition of extended supervision, the division of hearings and appeals in-thc department of administrationyupon proper notice andhearingror-the department of corrections,-if the person on extended supervision waives a -hearing^ reviewing authority may revoke the extended supervision of the person and return the person to-priaon. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison,- he or 3hc 3hall be-roturned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in custody confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The revocation court order returning a person to prison under this paragraph shall provide the person on whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

       Under Wis. Stat. § 302.113(9)(ag), " 'reviewing authority' means the division of hearings and appeals in the department of administration, upon proper notice and hearing, or the department of corrections, if the person on extended supervision waives a hearing."

       Wisconsin Stat. Rule 809.30(2)(b) reads, as material here:

        Notice of intent to pursue postconviction or postdisposition relief. Within 20 days after the date of sentencing or final adjudication, the person shall file in circuit court and serve on the prosecutor and any other party a notice of intent to pursue postconviction or postdisposition relief.
      The phrase " '[flinal adjudication' means the entry of a final judgment or order by the circuit court in a ch. 48, 51, 55, or 938 case, other than a termination of parental rights case under s. 48.43 or a parental consent to abortion case under s. 48.375 (7)." Rule 809.30(l)(a). This appeal thus does not concern an attempt to seek relief under Rule 809.30 from a "final adjudication."

       As the trial court indicated, review of the decision by the Department of Administration, Division of Hearings and Appeals to revoke or to not revoke extended supervision (as opposed to review of the trial court's order sending the defendant to prison following revocation) is by certiorari. Wis. Stat. § 302.113(9)(g) (2001-02). The Department of Corrections is the "reviewing authority" only when the prisoner waives his or her right to a revocation hearing. § 302.113(9)(ag). Thus, we assume for the purposes of this opinion, but do not decide, that a prisoner who waives his or her right to a hearing will rarely, if ever, seek judicial review of whether revocation was warranted.

       WISCONSIN Stat. Rule 809.82(2) recognizes that, inter alia, the time to take action under Wis. Stat. Rule 809.30 can be "enlarge[ed]" by the court. See State v. Mahone, 127 Wis. 2d 364, 381 n.7, 379 N.W.2d 878, 886 n.7 (Ct. App. 1985). State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995) (per curiam), did not discuss the right of a party to seek discretionary enlargement of the time limits in Rule 809.30.

       The sentences of Wis. Stat. § 974.02 quoted in the text of this opinion originally read:
      A motion for postconviction relief other than under s. 974.06 or 974.07 (2) by the defendant in a criminal case shall he made in the time and manner provided in ss. 809.30 and 809.40. An appeal by the defendant in a criminal case from a judgment of conviction or from an order denying a postconviction motion or from both shall be taken in the time and manner provided in ss. 808.04 (3), 809.30 and 809.40.
      The references to "809.40" were repealed by 2003 Wis. Act 326, § 134, effective June 12, 2004. 2003 Wis. Act 326, § 146.
      Wisconsin Stat. § 974.06(1) establishes the procedure for persons in designated custodial circumstances who claim:
      the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.

        Under § 974.06(1), the prisoner "may move the court which imposed the sentence to vacate, set aside or correct the sentence" even though "the time for appeal or postconviction remedy provided in s. 974.02 has expired." Swiams does not claim that § 974.06 applies to him in connection with the trial court's reconfinement order. Wisconsin Stat. § 974.07, which concerns motions for postconviction deoxyribonucleic acid testing, also does not apply here. Insofar as Wis. Stat. § 808.04 has any applicability, it provides that "an appeal in a criminal case ... shall be initiated within the time period specified in s. 809.30." § 808.04(3). Wisconsin Stat. Rule 809.40 concerns "[a]ppeals in termination of parental rights, ch. 799, traffic regulation, municipal ordinance violation, and parental consent to abortion cases."

       The Final Report may be accessed at: http://www.doa. state.wi.us/docs_view2.asp? do cid=42.

       We express no view whether those concerns were warranted.

       The appendices to the Final Report may be accessed at: http://www.doa.state.wi.us/ docs_view2.asp?docid=43. The reference to "a new bifurcated sentence" apparently was to a draft of what ultimately became Wis. Stat. § 302.113(9)(am) that permitted the trial court to impose a bifurcated reconfinement order. Thus, in the legislative-history materials that Swiams has provided to us there is a Legislative Reference Bureau Drafter's Note from then legislative attorney Jefren E. Olsen that notes that a new draft of the provision did "not refer to a court giving a person a new bifurcated 'sentence' after revoking [extended supervision]," opining "that such language is unnecessary because that is essentially what happens by operation of s. 302.113 (9), stats." Drafter's Note from the Legislative Reference Bureau (Aug. 3, 1999) (small caps omitted) (on file with the court).

       In view of our decision that the reconfinement order was a "sentencing," we do not address Swiams's alternative contention that depriving him of postconviction relief via Wis. Stat. Rule 809.30 violates the Wisconsin Constitution. See State ex rel. State Pub. Defender v. Percy, 97 Wis. 2d 627, 632, 294 N.W.2d 528, 531 (Ct. App. 1980) (arguments based on constitution should not be reached unless necessary).


source: Caselaw Access Project

license: Public Domain

text:
    James Logic, Plaintiff-Appellant, v. City of South Milwaukee Board of Canvassers, Defendant-Respondent, David Kieck, Intervenor-Respondent.
    Court of Appeals

      No. 04-1642.

      Submitted on briefs October 6, 2004.

    Decided October 19, 2004.

    2004 WI App 219
    (Also reported in 689 N.W.2d 692.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Basil M. Loeb, Mequon.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Joseph G. Murphy, South Milwaukee. Intervenor-respondent represented by Michael S. Maistelman, Milwaukee, joins in the brief of defendant-respondent.

      Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review dismissed.

   FINE, J.

¶ 1. James Logic, a candidate for mayor of the City of South Milwaukee in the April 6, 2004, election, appeals the circuit court's dismissal of his action contesting a recount by the City of South Milwaukee Board of Canvassers. The circuit court held that Logic's failure to serve his notice of appeal on the other and, according to the Board of Canvassers, successful, mayoral candidate meant that the court had no jurisdiction over the appeal. We affirm.

I.

¶ 2. Both Logic and the then incumbent, David Kieck, ran for mayor of South Milwaukee. The initial tally had them tied at 2,783 votes apiece. Kieck sought a recount under Wxs. Stat. § 9.01. As a result of that recount, the Board of Canvassers determined that Kieck won by one vote. Logic, contending that the Board of Canvassers erred in the recount, sought review by the circuit court. See Wis. Stat. § 9.01(6)(a). Section 9.01(6)(a) provides, as material to this appeal:

Within 5 business days after completion of the recount determination by the board of canvassers .. . any candidate . . . may appeal to circuit court. The appeal shall commence by serving a written notice of appeal on the other candidates.... The appellant shall serve the notice by certified mail or in person.

Logic did not serve Kieck either personally or by certified mail, and, as noted, the circuit court dismissed Logic's appeal. Our review is de novo. See Burnett v. Hill, 207 Wis. 2d 110, 118, 557 N.W.2d 800, 803 (1997).

II.

A. "Fundamental" versus "Technical" Defect.

¶ 3. Failure to follow statutory requirements in commencing an action, serving a party, or taking an appeal deprives the court from which relief is sought of jurisdiction over the action, party, or appeal if the defect of process is "fundamental" rather than merely "technical." See American Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 533, 481 N.W.2d 629, 632 (1992). A defect is "fundamental" if it defeats "the purpose of the rule." Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 208, 211-213, 562 N.W.2d 401, 409, 411 (1997) (overriding purpose of preventing non-lawyers from practicing law rendered ineffective a notice of appeal filed on corporation's behalf by its non-lawyer president); Burnett, 207 Wis. 2d at 123-125, 557 N.W.2d at 805-806 ("mailing of an unauthenticated copy of the publication summons along with authenticated copies of the original summons and complaint, although not in strict compliance, fulfilled the purpose" of statute and was, therefore, a "technical" defect); Gaddis v. LaCrosse Prods., Inc., 198 Wis. 2d 396, 405-407, 542 N.W.2d 454, 457-458 (1996) (serving unsigned summons together with signed complaint was "technical" defect because purpose of summons is to give notice only and that the unsigned summons did); American Family, 167 Wis. 2d at 535, 481 N.W.2d at 633 (service of unauthenticated photocopy of authenticated summons and complaint was fundamental defect).

¶ 4. The purpose of Wis. Stat. § 9.01(6)(a)'s requirement that a vote-recount appeal to the circuit court be served "on the other candidates" is to give them notice of the appeal so they can seek to protect their interests. Failure to comply with this requirement defeats that purpose and is thus "fundamental." See Jadair, 209 Wis. 2d at 208, 562 N.W.2d at 409. Thus, that Kieck knew about the appeal, and sought and was permitted by the circuit court to intervene in Logic's appeal of the recount is immaterial to the validity of that appeal. See id., 209 Wis. 2d at 212-213, 562 N.W.2d at 411 ("once we determine that a defect is fundamental, we need not consider prejudice"); American Family, 167 Wis. 2d at 530, 481 N.W.2d at 631 ("[A]ctual notice alone is not enough to confer jurisdiction upon the court. Service must be made in accordance with the manner prescribed by statute.") (internal quotation marks and quoted source omitted).

B. "Directory" versus "Mandatory."

¶ 5. Logic argues that because election laws are generally interpreted as directory rather than mandatory, in order to preserve the electorate's will, see Wis. Stat. § 5.01(1); Gradinjan v. Boho, 29 Wis. 2d 674, 682, 139 N.W.2d 557, 561 (1966), strict compliance with Wis. Stat. § 9.01(6)(a) is not required. We disagree.

¶ 6. The "will of the electorate" rule is designed to ensure that an elector's vote will be counted even though there has been noncompliance with the election law as long as the defect is de minimis. Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2004 WI 6, ¶¶ 19-27, 268 Wis. 2d 335, 348-351, 677 N.W.2d 599, 605-607; Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2001 WI App 221, ¶¶ 27-37, 247 Wis. 2d 708, 726-733, 634 N.W.2d 882, 889-893. As we have seen, however, the fundamental purpose of Wis. Stat. § 9.01(6)(a) is to guarantee that "other candidates" have notice of a recount-appeal filed by a candidate; this is an electorate-will neutral requirement — no vote's validity is affected directly by the application of § 9.01(6)(a). Accordingly, the will-of-the-electorate rule does not apply here.

¶ 7. Moreover, as Gradinjan recognizes, even under the "will of the electorate" rule votes will be discarded despite the apparent good faith of the electors if noncompliance with the election law is not de minimis. See id., 29 Wis. 2d at 682-683, 139 N.W.2d at 562 (requirement that absentee ballots bear either the name or the initials of the town clerk is to prevent possible fraud; thus, absentee ballots without either the town clerk's name or initials may not be counted). This is consistent with the "fundamental defect"/"technical defect" analysis of irregularities in commencement of either an action or appeal. Wisconsin Stat. § 9.01(6)(a)'s requirement that those challenging recounts serve "other candidates" is, as we have seen, a core protection that is hardly de minimis. Thus, in the terminology of the election-law cases upon which Logic relies, § 9.01(6)(a)'s command that "other candidates" be served with the appeal is mandatory rather than directory.

C. Service on City Clerk.

¶ 8. In a one-paragraph and undeveloped argument, Logic contends that service of the appeal was made on Kieck because, as recounted in an affidavit submitted to the circuit court by a law clerk employed by the law firm representing Logic, the law clerk "personally served the City of South Milwaukee Board of Canvassers and Mayor David Kieck, by serving the Notice of Appeal in the above-captioned action on Jacqueline Johnson, in her official capacity as the City Clerk for the City of South Milwaukee." Without citation to authority other than Wis. Stat. Rule 801.11(l)(d), which provides that personal service on a defendant may be made "by serving the summons ... upon an agent authorized by appointment or by law to accept service of the summons for the defendant," Logic argues that service on Johnson was service on Kieck because he was the City's mayor at the time. We disagree. Kieck’s persona in the contested election was qua candidate not mayor; he was running for office in his personal, not his official, capacity. Although Johnson might have been a proper person to serve if Kieck were being sued in his official capacity for some act done or not done as mayor, she was not the proper person to serve here because there is nothing in the record that indicates that Kieck had either authorized or appointed her to accept service for him in his capacity as a candidate. See Useni v. Boudron, 2003 WI App 98, ¶ 11, 264 Wis. 2d 783, 791-792, 662 N.W.2d 672, 676-677 (person who is named in a dual capacity must be properly served in each capacity).

III.

¶ 9. The circuit court properly determined that it lacked jurisdiction over Logic's appeal because Logic did not personally serve Kieck as required by Wis. Stat. § 9.01 (6)(a). Accordingly, we do not address either Logic's contention that the circuit court erred in permitting Kieck to intervene in the action, or Logic's argument that the Board of Canvassers improperly gave the election to Kieck. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

By the Court. — Judgment affirmed.

       This is an expedited appeal under Wis. Stat. Rule 809.17.


author: ANDERSON, PJ.

text:
    American National Property and Casualty Company, Plaintiff-Respondent, v. Marderos Nersesian and Susan Nersesian, Defendants-Third-Party Plaintiffs-Appellants, West Bend Mutual Insurance Company, Defendant, v. Jacinto R. Benavidez, United Services Automobile Association General Indemnity Company, and Racine Unified School District, Third-Party Defendants. [Case No. 03-3343.] American National Property and Casualty Company, Plaintiff-Respondent,† v. Marderos Nersesian and Susan Nersesian, Defendants-Third-Party Plaintiffs, West Bend Mutual Insurance Company, Defendant, v. Jacinto R. Benavidez, Third-Party Defendant-Respondent, United Services Automobile Association General Indemnity Company, Third-Party Defendant, Racine Unified School District, Third-Party Defendant-Appellant. [Case No. 03-3435.]
    Court of Appeals

      Nos. 03-3343, 03-3435.

      Submitted on briefs September 9, 2004.

      Decided October 20, 2004.

    2004 WI App 215
    (Also reported in 689 N.W.2d 922.)

      On behalf of the third-party defendant-appellant, the cause was submitted on the briefs of David A. Westrup and Maureen Hegarty Ranter of von Briesen & Roper, S.C., Milwaukee.
    On behalf of the defendants-third-party plaintiffs-appellants, the cause was submitted on the briefs of D. Michael Guerin and Kathryn A. Keppel of Gimbel, Reilly, Guerin & Brown, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Patrick J. Anderson of Mohr & Anderson, LLC, Hartford.
    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review denied 3-8-2005.

   ANDERSON, PJ.

¶ 1. Marderos and Susan Ners-esian appeal from a circuit court order granting American National Property and Casualty Company's (ANPAC's) motion for summary judgment. The Ners-esians contend that the circuit court erred in concluding that they had entered into a valid and enforceable settlement agreement with ANPAC. After an examination of the record in this matter and, in particular, the correspondence between the parties, we conclude that the Nersesians never accepted ANPAC's offer and therefore a settlement agreement was never reached. Accordingly, we reverse.

FACTS

¶ 2. On December 17, 1999, Marderos was involved in an automobile accident with ANPAC's insured, Jacinto R. Benavidez, in Racine county. As a result of the accident, the Nersesians retained the law firm Gimbel, Reilly, Guerin & Brown to represent both of their interests relative to the injuries and damages Marderos sustained in the accident. On January 15, 2000, Sue M. Soczka, a paralegal at the law firm who was assisting Attorney D. Michael Guerin with the case, wrote to ANPAC advising it that the firm had been retained by the Nersesians. Thereafter, ANPAC wrote to Soczka confirming ANPAC's understanding that the law firm had been retained to represent the Nersesians and requesting all of Marderos's medical information. Over the course of the months following the Nersesians' retention of the law firm, various representatives of ANPAC and the firm exchanged information regarding the potential settlement of the Nersesians' claims.

¶ 3. On June 19, 2001, Guerin submitted a letter to ANPAC proposing to settle the case for $48,500. On July 2, 2001, ANPAC informed the Nersesians that it would be willing to settle their claims for $15,000. On August 9, 2001, Guerin rejected the $15,000 settlement offer and proposed to settle the Nersesians' claims for $36,750. On August 24, 2001, ANPAC increased its offer to $16,500.

¶ 4. Ultimately, on December 20, 2001, Soczka sent a letter by facsimile to ANPAC confirming that the parties had agreed to resolve the Nersesians' claims for a total of $17,725. Soczka wrote:

This will confirm that the above-entitled claim has been settled for a total of $17,725. As was discussed with Attorney D. Michael Guerin, we would greatly appreciate it if two settlement checks were issued to our firm's trust account, to reflect the separate claims of Susan Nersesian for her loss of consortium with that of the personal injury claim of Marderos Nersesian. To that end, if one check could be issued in the amount of $2,500 (for Mrs. Nersesian's claim) and the other in the amount of $15,225 (for Mr. Nersesian's claim)....
As you are aware, Mr. Nersesian was acting within the scope of his employment at the time this accident occurred; therefore, his settlement proceeds must be distributed in accordance with Wisconsin State Statute Section 102.29. Enclosed for your file is a copy of the worker's compensation distribution based on the $15,225 settlement.
If you should have any questions or concerns regarding the above, please do not hesitate to contact me. Otherwise, we look forward to receiving the settlement checks and release from you in the near future.

Soczka also enclosed a copy of a worker's compensation distribution agreement based on the $15,225 settlement.

¶ 5. On January 4, 2002, Soczka wrote ANPAC advising it that the worker's compensation carrier, West Bend Mutual Insurance Company, had agreed to the settlement. She further wrote: "Our office will provide you with a conformed copy of the [worker's compensation] document when we return the executed release. We look forward to receiving the settlement paperwork from you in the near future." On that same date, ANPAC also wrote to Soczka confirming that the case had been settled for a total payment of $17,725. The letter stated:

This will confirm settlement of this case for a total payment of $17,725, including any and all liens known or unknown.
Per your request, we have cut two settlement checks. Also enclosed is a Release. I ask that you return the signed, notarized Release before negotiating the check.
I do appreciate your help and cooperation in working to resolve this case.

Soczka forwarded the release and settlement checks to the Nersesians.

¶ 6. On January 30, Soczka received a telephone call from Marderos, who informed her that he was experiencing numbness and tingling in his right side (along with an associated loss of coordination), which radiated from his neck through his arms. Marderos reported that he began to experience these symptoms in late December 2001. He advised Soczka that he had seen his physician about the symptoms and had been referred to another doctor for an orthopedic assessment.

¶ 7. Based upon her conversation with Marderos, Soczka contacted ANPAC and West Bend in early February to advise them as to Marderos's changed condition and subsequent medical treatment. She advised both parties that the pending settlement would be "put on hold" and that the law firm would be retaining the settlement documentation (release, settlement checks, the worker's compensation form) until a determination was made as to whether the additional medical treatment was related to the accident. According to Soczka, neither West Bend nor ANPAC expressed any objection or concern relative to putting the matter "on hold."

¶ 8. Under his doctor's recommendation, Mard-eros ultimately underwent an anterior cervical discec-tomy and interbody fusion on May 6, 2002. Soczka spoke with Marderos in late May and asked him to return the documents she had sent him, including the release and settlement checks. Thereafter, Soczka learned that Marderos had suffered complications from the surgical procedure. Marderos underwent the procedure two more times in mid-June.

¶ 9. On June 12, the law firm received a letter from Marderos's doctor outlining his medical opinion. He wrote:

[T]o a reasonable degree of medical certainty, this patient's condition of degenerative disk disease, cervical spine, and central spinal stenosis has been aggravated and accelerated as a result of the motor vehicle accident .... The surgical procedure was performed as a result of his degenerative changes which have been aggravated and accelerated as a result of the motor vehicle accident.

The letter was forwarded to the Nersesians. Based upon the doctor's assessment of Nersesian, it was determined that the negotiated settlement was no longer equitable under the circumstances.

¶ 10. On July 8, Guerin wrote a letter to ANPAC advising it that the Nersesians were "formally withdrawing ... acceptance of the $17,725 settlement offer." Guerin returned the uncashed settlement checks and the release along with the letter. The release, which both Susan and Marderos signed on January 28, 2002, had the word "VOID" written across its face.

¶ 11. On October 7,2002, ANPAC filed the underlying action against the Nersesians and West Bend seeking to enforce the December 2001 settlement. While that action was pending, Susan's employer, the Racine Unified School District (RUSD) filed its own action against Benavidez, the liable driver, and ANPAC, asserting a subrogation claim for health benefits it paid on behalf of the Nersesians. This subrogation case was consolidated with ANPAC's action in August 2003.

¶ 12. On September 22, 2003, ANPAC filed a summary judgment motion, seeking a declaration as a matter of law that it had a valid and enforceable agreement to pay no more than $17,725 to the Ners-esians and seeking dismissal of all other claims pending against it. The Nersesians opposed the motion and also moved for relief pursuant to Wis. Stat. § 806.07 (2001-02). The circuit court, after hearing argument on the matter, granted ANPAC's summary judgment motion, ruling that the settlement contract was enforceable and dismissing RUSD's claim. The court also refused to consider relief under § 806.07. Both the Nersesians and RUSD appealed from the court's final order. Their appeals were consolidated by order of this court.

STANDARD OF REVIEW

¶ 13. We review summary judgment decisions de novo, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. It is sufficient to say that summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Green Spring Farms, 136 Wis. 2d at 315.

¶ 14. Additionally, a settlement agreement is a contract and is governed by the traditional requirements for contracts. Degerman v. S.C. Johnson & Son, Inc., 875 F. Supp. 560, 562 (E.D. Wis. 1995); State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶ 13 n.8, 257 Wis. 2d 421, 651 N.W.2d 345 (noting that contract law is often applicable to settlement agreements); 66 Am. Jur 2d Release § 7 (2001). Accordingly, the interpretation of a settlement agreement is a question of law reviewed independent of the circuit court. See Lambert v. Wrensch, 135 Wis. 2d 105, 115, 399 N.W.2d 369 (1987).

DISCUSSION

¶ 15. On appeal the Nersesians argue that the trial court erred in concluding that they entered into a valid and enforceable settlement agreement with AN-PAC prior to the commencement of the current action. They claim that ANPAC's January 4, 2002 letter represents nothing more nor less than an offer of settlement and because they did not negotiate the checks or return the signed release to ANPAC as specified in the letter, they had not yet accepted ANPAC's offer.

¶ 16. Because a settlement agreement is a contract by nature, a valid settlement agreement requires an offer, an acceptance and consideration all resulting from a meeting of the minds. Degerman, 875 F. Supp. at 562; 66 Am. Jur. 2d Release § 7. Thus, while it is true that settlement agreements are favored in the law, to create an enforceable settlement agreement there still must be an offer on one side and an acceptance that is communicated to the offerer on the other. An authorized offer from an insurance company, if properly accepted (and assuming consideration), must be held to create a binding settlement contract. Carey v. Dairyland Mut. Ins. Co., 41 Wis. 2d 107, 117, 163 N.W.2d 200 (1968). However, until accepted in the mode and manner expressly provided by the terms of the offer, there remains an unaccepted offer, which cannot, in itself, be considered a binding contract. Nelson Inc. of Wis. v. Sewerage Comm'n of Milwaukee, 72 Wis. 2d 400, 419, 241 N.W.2d 390 (1976).

¶ 17. Applying these principles to ANPAC's offer of settlement, it is clear that the mere issuance of the checks and delivery of the release to the Nersesians did not effect a contract. ANPAC's previously-quoted January 4 offer expressly specified that the Nersesians were to sign and return the release to ANPAC prior to negotiating the settlement checks it enclosed with the offer. Thus, by its plain language, the offer was conditioned on the execution and return of the release to ANPAC. While the Nersesians did sign the release and the Nersesians did receive the two checks for the agreed upon amount, the Nersesians neither presented the checks for payment nor delivered the signed release to ANPAC. Furthermore, within one month of receiving the settlement paperwork, the Nersesians' attorney contacted the parties and explained that the Nersesians were putting the release "on hold" due to Marderos's complications, thereby communicating an unwillingness to accept the offer at the time. Having failed to properly accept ANPAC's offer by both signing and delivering the release, the Nersesians did not bind themselves to the settlement agreement.

¶ 18. ANPAC responds that the parties actually had reached a valid and enforceable agreement on December 20, 2001, when Soczka sent the letter to ANPAC confirming the settlement amount. The creation of a binding and enforceable contract is predicated on the parties' intent as derived from a consideration of the parties' words, written and oral, and their actions. Kernz v. J.L. French Corp., 2003 WI App 140, ¶¶ 21-22, 266 Wis. 2d 124, 141, 667 N.W.2d 751, review denied, 2003 WI 140, 266 Wis. 2d 62, 671 N.W.2d 849 (Wis. Oct. 27, 2003) (No. 02-1291).

¶ 19. While Soczka's December 20, 2001 letter expresses a willingness to settle the Nersesians' claims for a total of $17,725, the correspondence represents nothing more than a mere continuation of the lengthy negotiations between the parties and not an acceptance of an offer. First, as the letter states, the Nersesians' acceptance of the settlement depended upon the approval of the worker's compensation carrier. Second, the December 20, 2001 letter clearly contemplates the execution of another document containing more material provisions — a release from ANPAC. In her letter, Soczka wrote: "we look forward to receiving the settlement checks and release from you in the near future." Then, approximately two weeks later in her January 4, 2002 letter informing ANPAC that the worker's compensation carrier had agreed to the settlement, Soczka stated: "Our office will provide you with a conformed copy of the [worker's compensation] document when we return the executed release. We look forward to receiving the settlement paperwork from you in the near future." Where, as here, it is part of the understanding between the parties that preliminary writings are to be followed by a formal contract containing additional material provisions and signed by the parties, no binding or completed contract will be found. See Milwaukee Med. Coll., Inc. v. Marquette Univ., Inc., 208 Wis. 168, 170-71, 242 N.W. 494 (1932) (where during preliminary negotiations it is understood that a formal written agreement is to be signed, no contract is entered into); Goldstine v. Tolman, 157 Wis. 141, 155-56, 147 N.W. 7 (1914) (writings will not be construed as a contract when intended only as preliminary negotiations to be followed by a formal contract containing other material provisions); Skycom Corp. v. Telstar Corp., 813 F.2d 810, 816 (7th Cir. 1987) ("Even if parties agree, point by point, on all the terms of a contract, if they understand that the execution of a formal document shall be a prerequisite to their being bound there is no contract until the document is executed." (Citation omitted.)). Thus, it was not until ANPAC sent the release and the checks to the Nersesians that an offer, which if accepted could form the basis for an enforceable contract, was made.

¶ 20. In the alternative, ANPAC maintains that the Nersesians' retention of the settlement checks for approximately seven months was unreasonable and constitutes an accord and satisfaction as a matter of law. ANPAC relies upon Hoffman v. Ralston Purina Co., 86 Wis. 2d 445, 448-49, 452, 273 N.W.2d 214 (1979), where our supreme court concluded that an offeree's retention of an uncashed settlement check for a period of seven months was unreasonable and constituted an accord and satisfaction.

¶ 21. Contrary to ANPAC's assertions, Hoffman does not establish a bright-line rule that retaining a check for seven months is unreasonable and automatically results in a contract by accord and satisfaction. Rather, Hoffman teaches that whether a check is held for an unreasonable length of time depends on the circumstances of the dispute and the status of the negotiations between the adversary parties. Id. at 456. In Hoffman, the offeree had retained the settlement check for seven months, acquiesced in the receipt of a credit memorandum which had the effect of reducing to zero the offeree's outstanding balance with the offerer and maintained complete silence over those seven months. Id. at 456-57. It was for these reasons that the supreme court determined that the retention of the check was unreasonable.

¶ 22. Here, unlike the offeree in Hoffman, the Nersesians did not remain silent nor did they otherwise acquiesce in the benefits of ANPAC's offer. Instead, the Nersesians chose not to return the release, a condition of acceptance ANPAC imposed. Then, within weeks of receiving the settlement paperwork, they contacted ANPAC and the worker's compensation carrier and notified them that Marderos's condition had changed and the Nersesians were putting the settlement "on hold." This communication, coupled with the failure of the Nersesians to return the release and cash the checks, put ANPAC on notice that the Nersesians were not willing to accept its offer of settlement. ANPAC then could have requested the return of the checks and release or availed itself of its right to stop payment on the checks. Instead, ANPAC acquiesced to the Ners-esians' retention of all of the settlement paperwork. Because the Nersesians fully explained the grounds for their retention of the check and release within weeks of receiving them and ANPAC acquiesced in that retention, we see no reason to hold that the Nersesians had agreed to accept an offer of accord which they had expressly rejected.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       On appeal, the parties also address the subrogation issue raised by the consolidated case — that being whether a plaintiffs settlement with a tortfeasor forecloses the subrogee's claim if the subrogee is not involved in the settlement. However, because we conclude that the parties had not entered into a valid and enforceable settlement agreement prior to litigation, we need not address the subrogation issue further. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only disposi-tive issues need he addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground"). For this same reason, we need not discuss the Wis. Stat. § 806.07 issue.

       ANPAC also seems to suggest that the Nersesians' counsel conceded at the motion hearing that a completed contract— offer, acceptance and consideration — had occurred as of December 20, 2001. We have reviewed the record and find no such unequivocal concession.


author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael D. Lewis, Defendant-Appellant.
    Court of Appeals

      No. 03-3191-CR.

      Submitted on briefs August 30, 2004.

      Decided October 27, 2004.

    2004 WI App 211
    (Also reported in 690 N.W.2d 668.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy A. Provis, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Anderson, EJ., Nettesheim and Snyder, JJ.
   SNYDER, J.

¶ 1. Michael D. Lewis appeals from a judgment of conviction for second-degree sexual assault with use of force contrary to Wis. Stat. § 940.225(2)(a) (2001-02), and two counts of child enticement contrary to Wis. Stat. § 948.07(3). He argues that the trial court erred when it denied his motion to dismiss on grounds that the State failed to bring his case to trial within 120 days as required under Wis. Stat. §971.11(2). Lewis also appeals a postconviction order denying his request for resentencing, arguing that the court's application of the persistent repeater statute, Wis. Stat. § 939.62(2m), resulted in cruel and unusual punishment. Because we conclude that the trial court erred when it failed to dismiss the action pursuant to § 971.11(7), we reverse the judgment of conviction and remand for a determination of whether the dismissal will be with or without prejudice. Although the trial court did not err in applying the persistent repeater statute at sentencing, the postconviction order must also be reversed in light of our reversal of Lewis's conviction.

BACKGROUND

¶ 2. On March 8, 2002, the State charged Lewis with two counts of second-degree sexual assault with use of force and two counts of child enticement. The State also alleged that Lewis was a persistent repeat offender under Wis. Stat. § 939.62(2m)(a)lm.a and (2m)(b)2, citing a 1994 conviction for second-degree sexual assault of a child.

¶ 3. Lewis made his initial appearance with appointed counsel on April 3 and requested a preliminary hearing. On April 11, Lewis's appointed counsel moved to withdraw at Lewis's request. On May 2, Lewis appeared with newly appointed counsel and the preliminary hearing was rescheduled. By stipulation, he again substituted counsel on June 4.

¶ 4. Lewis signed a Detainer Acknowledgment on June 4, requesting prompt disposition of his case. The Kenosha County District Attorney's office received the request for prompt disposition on June 7.

¶ 5. At the preliminary hearing on June 19, Lewis was bound over for trial. At his arraignment one month later, Lewis entered a plea of not guilty. The case was set for pretrial on September 11 and trial on September 30.

¶ 6. Lewis's attorney attended the pretrial conference but Lewis did not. The prosecutor, Lewis's attorney, and the trial court discussed the upcoming trial, specifically the court's congested calendar and scheduling conflicts with the September 30 trial date. The court considered the possibility of an adjournment, and Lewis's attorney questioned whether an adjournment would violate the 120-day time limit for bringing the case to trial. The prosecutor indicated that he did not believe Lewis had filed an intrastate detainer request for prompt disposition in this case. The court set the new trial date for December 2, 2002. Lewis's attorney indicated the new trial date was "fine."

¶ 7. On October 21, Lewis filed a motion to dismiss, asserting that the State had failed to bring his case to trial within 120 days as required under Wis. Stat. § 971.11(2). The trial court denied his motion, and the trial began on December 2, 2002.

¶ 8. The jury returned a verdict finding him not guilty on count two, a charge of second-degree sexual assault with use of force, but finding him guilty on both child enticement charges and the remaining second-degree sexual assault with use of force charge. The trial court sentenced Lewis to life in prison without the possibility of parole as a persistent repeater under Wis. Stat. § 939.62(2m)(b)2. Lewis challenges his conviction and his sentence.

DISCUSSION

Motion to Dismiss Under the Intrastate Detainer Act

¶ 9. We begin with Lewis's contention that the trial court erred when it failed to dismiss the case as required by Wis. Stat. § 971.11, also referred to as the Intrastate Detainer Act (IDA). When a defendant properly requests prompt disposition of his or her criminal case pursuant to the IDA, the State's failure to bring the case to trial within 120 days permits the trial court to exercise its discretion to dismiss the case with or without prejudice under § 971.11(7). State v. Davis, 2001 WI 136, ¶ 5, 248 Wis. 2d 986, 637 N.W.2d 62. To identify our standard of review, however, we must draw a distinction between a trial court's discretion to dismiss with or without prejudice, and its decision whether to dismiss in the first place. Here we must decide whether the trial court properly applied § 971.11(7) to the facts of the case when it refused to dismiss the case. The application of a statute to a particular set of facts is a question of law that we review de novo. State v. Piddington, 2001 WI 24, ¶ 13, 241 Wis. 2d 754, 623 N.W.2d 528.

¶ 10. The State does not dispute that it failed to bring Lewis's case to trial within 120 days after the district attorney's office received his request for prompt disposition of his case. The State concedes that the Kenosha County District Attorney's office received Lewis's request on June 7, 2002, and that, as a result, the deadline for bringing the case to trial was October 5, 2002. Wisconsin Stat. § 971.11 states, in relevant part:

(1) Whenever the warden or superintendent receives notice of an untried criminal case pending in this state against an inmate of a state prison, the warden or superintendent shall, at the request of the inmate, send by certified mail a written request to the district attorney for prompt disposition of the case ....
(2) If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary examination as soon as convenient and notify the warden or superintendent of the prison thereof, unless such examination has already been held or has been waived .... The district attorney shall bring the case on for trial within 120 days after receipt of the request subject to s. 971.10.
(7) If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2)... the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. (Emphasis added.)

¶ 11. The statute mandates that when the case is not brought to trial within 120 days, it "shall be dismissed" unless the defendant escapes or otherwise prevents the trial from taking place. Here, two factors influenced the trial court's decision to reschedule the trial: the court's crowded trial calendar for the week of September 30, and the prosecutor's vacation plans. Either of these factors may be an appropriate reason to reschedule a trial within the statutory time limit; however, they do not justify violating a defendant's statutory right to prompt disposition under the IDA.

¶ 12. The State argues, however, that Lewis waived his right to a prompt disposition at the September 11, 2002 pretrial conference and urges us to affirm the trial court's decision to proceed with a trial beyond the 120-day deadline. At the pretrial conference, the following exchange took place between the court, Lewis's attorney (Meyeroff) and the prosecutor (Jam-bois):

THE COURT: Mr. Meyeroff, we are talking about adjourning the trial date. Your sense?
MR. MEYEROFF: Is there a problem with that de-tainer statute where he has the absolute right to a trial within 120 days?
MR. JAMBOIS: 180 days. There is only a problem if he implicates the detainer statute, which he had in the last case. I don't know [if] he did in this case.... If there were a problem with the detainer statute, we would have to try this case in September. I... did not file a request for prompt disposition intrastate matter nor has he filed a speedy trial demand in this case, to my knowledge.
MR. MEYEROFF: He is serving six years in prison.
MR. JAMBOIS: It seems like an adjournment won't be a major problem. I do not believe there has ever been an intrastate detainer request filed in this case.
THE COURT: I don't see it looking through it quickly .... I am going to rely on both counsels' representations in that regard. It seems appropriate for us to adjourn the trial.
MR. MEYEROFF: All right.

¶ 13. At the November 15 motion hearing, the trial court implied that Lewis waived or withdrew his request for prompt disposition by denying the court "the opportunity to try the case within 120 days." The court retraced the statements made at the pretrial conference and then ruled as follows:

THE COURT: I think we have an issue in terms of whether or not the defendant is entitled [to] the advantages of the statute under [Wis. Stat. §] 971.11(2), unfettered by the actions of his own attorney.
His own attorney comes into court — Mr. Meyeroff had come into court on September 11th and basically said nothing when the district attorney said, I don't know anything about a prompt detainer, prompt disposition request.
The Court says ... I am going [to] rely on both attorneys in that regard in terms of their [sic] not being a prompt disposition request. I don't see how a defendant ought to he able to benefit by the actions of his own attorney in standing silent when the Court indicates that it has no knowledge of the request for prompt disposition, and then raise the issue after the 120 [days] expires and says, hey, my client is entitled to it.
MR. MEYEROFF: I am the one who brought up the 120 days. If I was trying to lie in the weeds, I wouldn't have brought it up, and I don't think there is any requirement it has to be in your file. The requirement is it has to be served on the district attorney.
THE COURT: I believe, in this case, that the case should not be dismissed .... Because if a court who has to administer the 120 issue once the Court is involved and once the Court begins to discuss it and seeks out the information as to whether or not, in fact, there is a prompt disposition request by the defendant, I believe the defendant, through his attorney, has an obligation to disclose that there is. You did raise the issue, but you did not complete the issue, and now we are sitting more than 120 days. The only way this case should be dismissed — if as a matter of law if 120 days goes by and you have a certified mail return receipt signed by someone from the DA's Office, and that's it, 120 days goes by and the case ought to be dismissed. I don't think under these facts it ought to be the way it is. I think the Court was denied the opportunity to try the case within 120 days. I believe that defense counsel had some affirmative responsibility to tell us but, Judge, we filed this. But give me some notice, and I can't in good conscience consider dismissing the case.

¶ 14. The trial court held that Lewis had an "affirmative responsibility" to advise the court of his prompt disposition request. We cannot agree because no such duty exists in the statute. Further, we cannot conclude that Lewis's attorney, his third attorney on this case, waived Lewis's statutory right to prompt disposition by stating the rescheduled trial date was "fine." Waiver of a statutory right must he an intentional and voluntary relinquishment of a known right, and it must be accomplished by a clear and specific renunciation of that right. Mulvaney v. Tri State Truck & Auto Body, Inc., 70 Wis. 2d 760, 768, 235 N.W.2d 460 (1975). Lewis's attorney acquiesced to the rescheduled trial date only after the prosecutor indicated, incorrectly, that no request for prompt disposition had been filed. This is not an intentional and voluntary relinquishment of a known right. We are troubled by Lewis's absence from the pretrial hearing and observe that, had he been present, the issue of whether a request for prompt disposition had been filed could have been immediately, and accurately, resolved.

¶ 15. We conclude that the trial court misplaced the responsibility for complying with the 120-day time limit on Lewis when it imposed an "affirmative responsibility" on him to advise the court of his properly submitted request. Once the district attorney receives the request, the responsibility for prompt disposition is placed squarely on the district attorney. Wis. Stat. § 971.11(1), (2). We hold that the trial court erred when it failed to dismiss the case in accordance with the mandate of § 971.11(7). We reverse and remand the case and direct the trial court to determine whether dismissal will be with or without prejudice. See Davis, 248 Wis. 2d 986, ¶ 29.

Eighth Amendment Challenge to the Persistent Repeater Statute

¶ 16. Lewis also challenges the trial court's imposition of an enhanced sentence for persistent repeater status under Wis. Stat. § 939.62(2m)(b)2, arguing that it violates his Eighth Amendment protection against cruel and unusual punishment. Whether a statute is constitutional is a question of law that we review de novo. State v. Migliorino, 150 Wis. 2d 513, 524, 442 N.W.2d 36 (1989).

¶ 17. Lewis was sentenced to life in prison without the possibility of parole under the "two strikes" law because he was convicted of a serious child sex offense in 1994 and faced sentencing on at least one serious child sex offense here. See Wis. Stat. § 939.62(2m)(b)2, (2m) (c). In State v. Radke, 2003 WI 7, ¶¶ 16-18, 259 Wis. 2d 13, 657 N.W.2d 66, our supreme court provided a history of Wisconsin's approach to repeat offenders. The court explained that:

For more than a century, Wisconsin laws have authorized courts to enhance the sentences of repeat offenders. By 1993 Act 289, the legislature enacted the "three strikes" law, creating a new subcategory of repeat offenders known as "persistent repeaters."
The legislature added to this new persistent repeater subcategory of repeat offenders by 1997 Act 326, the "two strikes" law. Included in this second group of persistent repeaters are defendants who have been convicted of one offense that the legislature has designated as a "serious child sex offense" and who are being sentenced for a second such offense.... Persistent repeaters under the "two strikes" law face a mandatory sentence of life in prison without the possibility of parole.

Id., ¶¶ 16, 18. Persistent repeater statutes have survived Eighth Amendment challenges in the past. See State v. Hahn, 2000 WI 118, ¶ 34, 238 Wis. 2d 889, 618 N.W.2d 528 ("Forty-seven states and the District of Columbia have enacted persistent repeater statutes, many of which require life sentences upon an offender's third offense. These persistent repeater statutes and the resulting sentences have withstood Eighth Amendment challenges."). Furthermore, our supreme court upheld the "two strikes" law, stating that the legislature "could reasonably determine that the need for incarceration without the possibility of parole is especially acute when children, a particularly vulnerable segment of the population, are the explicit targets of the offenses." Radke, 259 Wis. 2d 13, ¶ 28 (footnote omitted).

¶ 18. When sentencing Lewis, the trial court correctly determined that Lewis's 1994 conviction for second-degree sexual assault of a child and the current convictions for child enticement placed him within that category of persistent repeaters covered by the "two strikes" law and that the resulting sentence did not violate the Eighth Amendment. See Wis. Stat. § 939.62(2m)(a)lm.a, (2m)(b)2; Hahn, 238 Wis. 2d 889, ¶ 34.

Other Acts Evidence and Voir Dire

¶ 19. Lewis raises two additional issues on appeal. First, he contends that the State's peremptory challenge to the only African-American in the jury pool violated basic equal protection under Batson v. Kentucky, 476 U.S. 79 (1986). He further contends that the court erroneously allowed the State to introduce other acts evidence at trial. We do not reach these issues because we reverse on other grounds. If a decision on one point disposes of the appeal, we will not decide the other issues raised. Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938).

CONCLUSION

¶ 20. We conclude that the trial court erred when it denied Lewis's motion to dismiss under Wis. Stat. § 971.11(7). We reverse and remand for the trial court to determine whether the dismissal should be granted with or without prejudice, using factors our supreme court has developed to guide the trial court's exercise of discretion. See Davis, 248 Wis. 2d 986, ¶ 29.

¶ 21. We also conclude that although the trial court properly applied the persistent repeater penalty enhancement at sentencing, the order must be reversed in light of our reversal of Lewis's conviction. We remand the matter for further proceedings in accordance with this opinion.

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

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       We note that the Detainer Acknowledgment in the record applies to No. 02-CF-275; however, it references charges of theft and first-degree reckless endangerment rather than sexual assault or child enticement. At a motion hearing on November 15, 2002, the State argued that the Detainer Acknowledgment was defective due to the incorrect charge. The trial court rejected that argument and ruled that the document contained sufficient information to conclude that it was for No. 02-CF-275. The State does not challenge this ruling on appeal.

       The trial court explained Lewis's absence from the pretrial hearing as follows: "We don't have the defendant here. He is in custody, and we were in the middle of a suppression hearing with two other in-custodies, so we are short of transport people." From this we gather that Lewis would have been there but for transportation issues. It is not explained, however, why Lewis could not have participated by telephone.


author: HIGGINBOTHAM, J. DYKMAN, J.

text:
    Debra A. Degenhardt-Wallace, Plaintiff, v. Hoskins, Kalnins, McNamara & Day, Ivars Kalnins, and Great American Insurance Company, Defendants-Appellants, State Farm Mutual Automobile Insurance Company, Intervenor-Respondent.
    Court of Appeals

      No. 03-3091.

      Submitted on briefs March 18, 2004.

    Decided October 28, 2004.

    2004 WI App 209
    (Also reported in 689 N.W.2d 911.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Ward I. Richter and Sheila M. Sullivan of Bell, Gierhart & Moore, S.C., Madison.
    On behalf of the intervenor-respondent, the cause was submitted on the brief of Kara M. Burgos of Moen, Sheehan, Meyer, Ltd., La Crosse.
    Before Dykman, Vergeront and Higginbotham, JJ.
   HIGGINBOTHAM, J.

¶ 1. This case involves an insurance dispute and requires us to interpret language in an underinsured motorist (UIM) policy that obligates the UIM carrier to pay benefits to its insured only after the underinsured motorist's liability limits "have been exhausted by payment of judgments or settlements." The question is whether the policy's exhaustion requirement can be satisfied by a judgment or settlement with someone other than the alleged tortfeasor.

¶ 2. Hoskins, Kalnins, McNamara & Day, Attorney Ivars Kalnins and Great American Insurance Company (collectively Kalnins) appeal from an order dismissing State Farm Mutual Automobile Insurance Company (State Farm) from this action. In January 1999, Debra Degenhardt-Wallace was involved in an auto accident with another vehicle. Degenhardt-Wallace filed this malpractice action against Kalnins because Kalnins failed to file a personal injury claim against the alleged tortfeasor prior to the expiration of the statute of limitations. Degenhardt-Wallace had an auto insurance policy with State Farm; the policy contained UIM coverage. After State Farm intervened in this malpractice action, the circuit court concluded that the UIM coverage was not triggered by any potential settlement or judgment paid by Kalnins.

¶ 3. Kalnins argues the exhaustion clause in the State Farm policy does not require that a particular party exhaust the policy's liability limits before the UIM coverage is triggered. Kalnins further argues that any ambiguities in State Farm's policy must be construed against State Farm. We conclude that the applicable policy language is ambiguous and thus we must construe this ambiguity in favor of coverage. We therefore reverse the order of the circuit court.

FACTS

¶ 4. The facts are undisputed. Degenhardt-Wallace and Derrick McCoy were involved in an auto accident on January 5, 1999. Degenhardt-Wallace hired Attorney Kalnins to represent her in a lawsuit against McCoy; however Kalnins failed to file suit before the statute of limitations expired. As a result, Degenhardt-Wallace filed the present action against Kalnins alleging legal malpractice.

¶ 5. At the time of the accident, McCoy was insured by an automobile liability policy through State Farm. That policy had bodily injury liability limits of $50,000. Degenhardt-Wallace also had a policy with State Farm at the time of the accident that provided her with UIM benefits of $100,000.

¶ 6. Kalnins has admitted liability for legal malpractice. However, the parties dispute the amount of damages for which Kalnins may be liable. Kalnins has taken the position that he can ‘be liable for no more than $50,000, the amount of McCoy's underlying liability policy, because Degenhardt-Wallace remains eligible for UIM benefits from State Farm for damages exceeding $50,000. The statute of limitations has not yet run on the UIM claim.

¶ 7. The circuit court granted State Farm permission to intervene in this lawsuit. State Farm then brought a motion asking for a declaration that it did not owe UIM coverage to Degenhardt-Wallace, pointing to the following language in the UIM portion of her policy:

THERE IS NO COVERAGE UNTIL THE LIMITS OF LIABILITY OF ALL BODILY INJURY LIABILITY BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY PAYMENT OF JUDGMENTS OR SETTLEMENTS.

State Farm argued that because this provision requires exhaustion of the limits of "bodily injury liability bonds and policies," UIM coverage was not triggered unless a liability insurer paid the limits itself. Kalnins argued that the clause merely sets the point at which UIM coverage is triggered, i.e. after the insured has received the underlying liability policy limits, and says nothing about the source of those funds. If the provision is meant to convey to the insured that a specific individual or entity must pay the limits, according to Kalnins, then it is ambiguous in that respect and must be construed against the insurer.

¶ 8. At a hearing on September 26, 2003, the circuit court granted State Farm's motion. On October 7, 2003, an order was entered finding that State Farm did not owe UIM coverage to Degenhardt-Wallace and on October 31, 2003, a subsequent order dismissed State Farm from the lawsuit. Kalnins appeals.

DISCUSSION

¶ 9. This case requires us to construe an insurance policy. "When determining insurance coverage, we shall apply the same rules that are applied to contracts generally." Kendziora v. Church Mut. Ins. Co., 2003 WI App 83, ¶ 6, 263 Wis. 2d 274, 661 N.W.2d 456. An insurance policy is construed to give effect to the intent of the parties, expressed in the language of the policy itself, which we interpret as a reasonable person in the position of the insured would understand it. Danbeck v. American Family Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150.

¶ 10. In construing a policy, the first thing a court must do is determine if the disputed language is ambiguous. Folkman v. Quamme, 2003 WI 116, ¶ 13, 264 Wis. 2d 617, 665 N.W.2d 857. The words of an insurance policy are given their common and ordinary meaning. Danbeck, 245 Wis. 2d 186, ¶ 10. Where the language of the policy is plain and unambiguous, we enforce it as written, without resort to rules of construction or principles in case law. Id. This is to avoid rewriting the contract by construction and imposing contract obligations the parties did not undertake. Id.

¶ 11. Insurance contract language is ambiguous only if it is susceptible to more than one reasonable construction. Folkman, 264 Wis. 2d 617, ¶ 13. We construe such ambiguities against the insurer and in favor of coverage. Id.; also Danbeck, 245 Wis. 2d 186, ¶ 10.

¶ 12. The policy language in question reads

THERE IS NO COVERAGE UNTIL THE LIMITS OF LIABILITY OF ALL BODILY INJURY LIABILITY BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY PAYMENT OF JUDGMENTS OR SETTLEMENTS.

Kalnins argues that the language of this clause is ambiguous in that it does not require a particular party exhaust the policy's liability limits before the UIM coverage is triggered. We agree.

¶ 13. The exhaustion clause in the insurance policy sets forth these requirements for UIM coverage: (1) the limits of liability (2) of all applicable bodily injury liability bonds or policies (3) must be used up (4) by payment of judgments or settlements. The phrase "limits of liability" clearly refers to the total amount of liability coverage available under the tortfeasor's bodily injury liability insurance policy. Id., ¶ 14. Here, McCoy carried $50,000 of liability insurance.

¶ 14. The phrase "used up" has been used interchangeably with "exhausted." See State Farm Mut. Auto. Ins. Co. v. Gillette, 2002 WI 31, ¶ 90, 251 Wis. 2d 561, 641 N.W.2d 662. The term "exhaust" is defined as "to use up or consume completely; expend the whole of. . . Danbeck, 245 Wis. 2d 186, ¶ 15, citing to Random House Unabridged Dictionary 678 (2d ed 1993). When determining the plain and ordinary meaning of words, we may look to definitions in a recognized dictionary. Oaks v. American Family Mut. Ins. Co., 195 Wis. 2d 42, 48, 535 N.W.2d 120 (Ct. App. 1995). Accordingly, to "use up" the tortfeasor's liability policy limits, the full $50,000 must he expended in total or exhausted completely. See Danbeck, 245 Wis. 2d 186, ¶ 15.

¶ 15. Finally, the exhaustion clause specifies the only manner by which exhaustion will trigger the obligation to pay UIM benefits: exhaustion "by payment of judgments or settlements." However, nothing in this clause requires the limits of liability be "used up" by receiving that amount under the bodily injury liability bond or policy. Indeed, the exhaustion clause makes no reference to the source of the judgment or settlement funds.

¶ 16. Kalnins argues that nothing in the exhaustion clause mandates that the liability limits to be exhausted must be paid by a particular party before UIM is triggered. According to Kalnins, if Degenhardt-Wallace receives a payment from a settlement or judgment of $50,000, then the liability policy limits will have been "used up."

¶ 17. Conversely, State Farm argues that the plain language of the policy requires payment from the tortfeasor's liability policy, as the language requires the limits of all bodily injury liability bonds or policies be exhausted. According to State Farm, payment by Kalnins' malpractice insurer does not exhaust the limits of a bodily injury liability bond or policy because bodily injury liability insurance does not include legal malpractice insurance.

¶ 18. "Can reasonable minds differ? This is the tried and true test for determining ambiguity." Danbeck, 245 Wis. 2d 186, ¶ 26 (Bradley, J., dissenting). Reasonable minds can differ here. We conclude that both Kalnins' and State Farm’s readings of the policy language are reasonable interpretations and thus the language of the insurance contract language is ambiguous. See Folkman, 264 Wis. 2d 617, ¶ 13. Such ambiguities must be construed against State Farm in favor of coverage. See id.; see also Danbeck, 245 Wis. 2d 186, ¶ 10. If Degenhardt-Wallace receives a payment from a settlement or judgment of $50,000 from Kalnins, then the liability policy limits will have been "used up" and UIM coverage is triggered. We therefore reverse the order of the circuit court.

By the Court. — Order reversed.

DYKMAN, J.

¶ 19 0concurring). So far, this case is about a straw man. His name is "used up." He doesn't have much to do with this case. But, for what it's worth, I agree with the majority that "to 'use up the tortfeasor's liability policy limits, the full $50,000 must be expended in total or exhausted completely." Majority at ¶ 14. The majority's opinion convincingly beats this straw man into submission, and I agree that its conclusion as to "used up" is correct.

¶ 20. But that's not what this case is about. Though the case began as a legal malpractice action, once State Farm intervened, it became, for the purpose of this appeal, an action by Degenhardt-Wallace against State Farm, her underinsured motorist coverage carrier. This appeal is here because Degenhardt-Wallace wants to recover under her UIM coverage, and State Farm is resisting her efforts. The language of Degenhardt-Wallace's policy that State Farm relies on is:

THERE IS NO COVERAGE UNTIL THE LIMITS OF LIABILITY OF ALL BODILY INJURY BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY PAYMENT OF JUDGMENTS OR SETTLEMENTS

¶ 21. The crux of the majority opinion is in ¶ 15, where it concludes: "However, nothing in [the exhaustion clause] requires the limits of liability be 'used up' by receiving that amount under the bodily injury liability bond or policy. Indeed, the exhaustion clause makes no reference to the source of the judgment or settlement funds."

¶ 22. This is not true. The source of the judgment or settlement funds must come from applicable bodily injury policies. The disputed sentence is written in the passive voice, but the operative words are: limits of applicable bodily injury policies are used up by payment or settlement. It is undisputed that malpractice insurance is not found in a bodily injury policy. Whether the limits of other policies are used up is irrelevant.

¶ 23. I do not know whether McCoy's bodily injury policy is applicable because I am not sure of the meaning of the word "apply" in the context of Degenhardt-Wallace's policy with State Farm. The pertinent dictionary definition of "apply" is: "to have relevance or a valid connection." Merriam Webster's Collegiate dictionary 57 (10th ed. 1993). If the question is whether Degenhardt-Wallace can recover money from McCoy or his insurance carrier, the answer is, No, McCoy's policy does not have relevance or a valid connection; it does not apply. If the question is whether Degenhardt-Wallace could have recovered from McCoy or his insurer had she timely sued, the answer is, Yes, McCoy's policy is applicable.

¶ 24. Though I believe that "No" is the better answer, it is possible that reasonable people could differ as to the meaning of the phrase "that apply." If McCoy's policy is inapplicable because Degenhardt-Wallace can recover nothing from it, the policy does not "apply" and UIM coverage exists. If McCoy's policy applies because Degenhardt-Wallace could have recovered had she timely sued, the limits of McCoy's policy have not been "used up," and UIM coverage does not exist. The disputed phrase is therefore ambiguous because it "is capable of being understood by reasonably well-informed persons in two or more senses." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 47, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We are therefore to construe the sentence against State Farm. See Folkman v. Quamme, 2003 WI 116, ¶ 13, 264 Wis. 2d 617, 665 N.W.2d 857 (citation omitted). The result is UIM coverage exists, whether we accept the first meaning or conclude that the sentence is ambiguous.

¶ 25. UIM coverage is designed to be coverage of last resort, but its context and design is limited to the interaction between two or more automobile liability policies. The designers of this coverage never contemplated more than the disputed policy provision provides.

¶ 26. The problem with the majority's analysis is that it never addresses the real issue, which is whether McCoy's bodily injury policy "applies" to this lawsuit. My conclusion is that the best State Farm can show is that the meaning of "that apply" is ambiguous. Accordingly, I would construe those words against State Farm, and conclude that the sentence on which it relies does not prevent Degenhardt-Wallace from recovering under her UIM policy. I therefore respectfully concur.

       The circuit court declined to grant a stay of the proceedings between the remaining parties pending resolution of the appeal. Degenhardt-Wallace and Kalnins continue to litigate the issues of whether McCoy is liable for the accident and the extent of Degenhardt-Wallace's injuries.

       In its response brief, State Farm argues that Kalnins has no standing to challenge any provision in the insurance policy because he is neither a party to nor a third-party beneficiary of the insurance contract. However, State Farm did not raise this issue before the circuit court. In general, parties must raise issues for the first time before the circuit court. Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980). If a party does not present an issue before the circuit court, he or she effectively waives the right to assert this issue on appeal. Id. Because it failed to raise the issue before the circuit court, State Farm has waived the right to raise the issue before us.

       State Farm Mutual Automobile Insurance Company begins its brief by asserting that Attorney Kalnins has no standing to challenge a contract to which he is neither a party nor a third party beneficiary. The majority does not address this issue. My conclusion is that Kalnin's standing is irrelevant. This is, for the purposes of this appeal, a dispute between Degenhardt-Wallace and State Farm.

       I recognize that an exhaustion clause that omits the words "that apply" is unambiguous. See Danbeck v. American Family Mut. Ins. Co., 2001 WI 91, ¶ 13 n.3, 245 Wis. 2d 186, 629 N.W.2d 150. The omission of those words distinguishes Danbeck. Even without that distinction, the supreme court has recognized that what is unambiguous in one context may be ambiguous in another. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999).

       State Farm may have other reasons why it believes Degenhardt-Wallace cannot recover under her UIM coverage. I do not find those reasons, if they exist, in State Farm's brief.