author: SNYDER, J.

text:
    State of Wisconsin ex rel. Micheal Locklear, Petitioner-Appellant, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent.
    Court of Appeals

      No. 99-3211.

      Submitted on briefs January 12, 2001.

    Decided February 21, 2001.

    2001 WI App 74
    (Also reported in 629 N.W.2d 30.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs oí Micheál Locklear, pro se.
    On behalf of the respondent-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Micheál Locklear, a prisoner in the Wisconsin correctional system, appeals pro se from an order of the circuit court dismissing his petition for certiorari review of his probation revocation. Locklear argues that the circuit court erred when it held that his petition was untimely filed. We agree with Locklear that his petition was timely filed; we therefore reverse the order of the circuit court and remand this matter to the circuit court for proceedings consistent with this decision.

FACTS

¶ 2. On March 11, 1992, Locklear was sentenced to five years in prison, to be served concurrently with another sentence. That same day, Locklear was also sentenced to seven years in prison; however, this sentence was imposed and stayed and Locklear was placed on probation for five years, which was to be served consecutive to any other sentence. On April 28, 1992, Locklear was sentenced to four years in prison. This sentence was also imposed and stayed and Locklear was placed on probation for five years, to be served concurrent with any other terms of probation.

¶ 3. On February 24, 1998, Locklear allegedly violated the terms of his probation, and he was placed in custody pending revocation proceedings. On August 20,1998, Locklear's final probation revocation hearing was held in Milwaukee; on September 16, 1998, his probation was revoked by an administrative law judge (ALJ).

¶ 4. Locklear appealed this decision to David H. Schwarz, the Administrator of the Division of Hearings and Appeals, and on October 6,1998, Schwarz affirmed the ALJ's decision and entered an order revoking Locklear's probation. Schwarz's decision was mailed to Columbia Correctional Institution (CCI) in Portage, Wisconsin, where Locklear had been incarcerated at the time of the final revocation hearing. However, on October 20,1998, Locklear was transferred from CCI to Dodge Correctional Institution (DCI) in Waupun, Wisconsin. It does not appear that Locklear received a copy of Schwarz's decision until October 28,1998.

¶ 5. On October 13, 1998, Locklear wrote to the Department of Justice (DO J) asking for a three-strikes certification pursuant to WlS. STAT. §§ 801.02(7)(d) and 802.05(3)(c) (1999-2000). On October 22, 1998, Locklear wrote to the circuit court asking for an extension of time to file his petition. On November 10,1998, the circuit court clerk responded to Locklear, asking about the status of his potential submissions, and informing him that the circuit court had granted his request for a time extension. On November 22, 1998, Locklear submitted a second request for a three-strikes certification to the DOJ; in addition, he sent a request to the DCI registrar for a certified copy of his prison trust account statement. On November 25, 1998, the Department of Corrections (DOC) refused to provide Locklear a legal loan for photocopying and mailing services.

¶ 6. On December 13, 1998, Locklear mailed all of his legal documents to the Waukesha county clerk of court's office. Locklear's certified trust account statement was sent by separate mail from the DCI registrar and was initially received by the criminal/traffic division of the clerk of court's office on November 30, 1998, but must have been forwarded to the civil division and was received there on December 17, 1998. Locklear's documents were received by the clerk of court's office the next day, December 18,1998, and included an original and two copies of a petition for certiorari review of his probation revocation, a proposed writ, a proposed order waiving costs and fees, an affidavit of indigency, and a request to proceed without paying the filing fee. Locklear's authorization to withhold the funds from his prison trust account and his indigency affidavit were also received by the clerk of court's office that same day. On December 18, 1998, the circuit court denied Locklear's petition because he did not provide documentary proof of exhaustion of administrative remedies. The record is unclear whether Locklear's materials were returned to him.

¶ 7. On December 30,1998, Locklear submitted a copy of Schwarz's decision as proof of exhaustion of administrative remedies.

¶ 8. On January 4,1999, Locklear sent a letter to the circuit court asking the court to reconsider its denial of his petition. That same day, another Locklear indigency affidavit was received by the circuit court. On January 13, 1999, the circuit court sent Locklear a letter indicating that it had received his papers; the court informed Locklear that he was still missing the DOJ certification and the six-month certified trust account statement.

¶ 9. On January 29,1999, Locklear's DOJ certification and certified trust account statement were received by the court. Despite their receipt, that same day, January 29, 1999, the circuit court denied Locklear's petition for failure to include the DOJ certification and a certified trust account statement. Locklear's papers were returned to him on or about February 10,1999.

¶ 10. On or about February 11, 1999, Locklear resubmitted his papers; they were again returned to him on or about February 16,1999. On March 10,1999, Locklear again submitted his papers. Locklear's certified trust account statement was received by the clerk of court's office on March 17,1999. However, on March 17,1999, Locklear's petition was denied for lack of DOJ certification and documentary proof of exhaustion of administrative remedies.

¶ 11. On April 19, 1999, Locklear's indigency affidavit was again received, along with his certified trust account statement, his DOJ certification and his authorization to withhold funds from his prison account. Schwarz's decision was also received that same day. Locklear's petition was then accepted for filing.

¶ 12. On July 9, 1999, Schwarz filed a motion to quash the petition for writ of certiorari for being untimely filed. A hearing was held on September 30, 1999, and on November 11, 1999, the circuit court granted Schwarz's motion and Locklear's petition was dismissed as untimely. Locklear appeals from the order dismissing his petition. Further facts will be discussed as necessary to this decision.

DISCUSSION

¶ 13. Locklear argues that the circuit court misused its discretion when it found that his petition for writ of certiorari review was untimely filed. Schwarz argues that the circuit court properly quashed the writ because the petition was not filed in a timely manner. We agree with Locklear.

¶ 14. A prisoner petitioning for a writ of certiorari can request waiver of prepayment of costs and fees on the grounds of indigency under WlS. STAT. § 814.29(lm). The circuit court must determine whether the prisoner has insufficient funds to pay the fees up front and whether all the proper papers have been submitted. State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶ 8, 238 Wis. 2d 393, 617 N.W.2d 201. If all conditions are met, the circuit court must issue an order allowing the prisoner to commence the action without prepayment of the fees. Id.

¶ 15. Wisconsin Stat. § 893.735 addresses actions by prisoners contesting a governmental decision and states, in relevant part:

(2) An action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues. The 45-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition. Subject to no contact requirements of a court or the department of corrections, a prisoner in administrative confinement, program segregation or adjustment segregation may communicate by 1st class mail, in accordance with department of corrections' rules or with written policies of the custodian of the prisoner, with a 3rd party outside the institution regarding the action or special proceeding.
(3) In this section, an action seeking a remedy available by certiorari is commenced at the time that the prisoner files a petition seeking a writ of certiorari with a court.

Here, the issue we must address is whether Locklear filed his petition for writ of certiorari within the forty-five day deadline of § 893.735.

¶ 16. To determine the point at which a petition for writ of certiorari is filed for the purpose of satisfying the forty-five day deadline, we must interpret and apply Wis. Stat. § 893.735. The interpretation and application of statutes present questions of law that we review de novo. Steldt, 2000 WI App 176 at ¶ 11.

¶ 17. On October 6, 1998, Schwarz issued the decision affirming Locklear's probation revocation and mailed a copy to CCI. However, Locklear was transferred from CCI to DCI on October 20, 1998, and he maintains that he did not receive the decision until October 28,1998.

¶ 18. There is evidence that Schwarz's decision was received at DCI on October 15, 1998. However, there is also support for Locklear's argument that he did not receive the decision until October 28, 1998; on the back of the document indicating DCI receipt on October 15, 1998, there is also a date stamp of October 27, 1998. It is unknown where this date stamp came from, and as the State conceded during the hearing on the motion to quash, it is unlikely that Locklear himself had a date stamp to make this mark.

¶ 19. The circuit court made no precise finding as to when Locklear received notice of Schwarz's decision, but found that Locklear had received notice "by at least October 28th of 1998." Because WlS. STAT. § 893.735 allows the court to "extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition" and because the circuit court found that Locklear had received notice no later than October 28, 1998, we shall utilize October 28, 1998 as the appropriate starting point for the forty-five day deadline.

¶ 20. Wisconsin Stat. §990.001(4) addresses construction of laws and provides rules for how time is computed. Subsection (a) states that "[t]he time within which an act is to be done or proceeding had or taken shall be computed by excluding the first day and including the last. . . ." We therefore exclude October 28.1998, in the computation of the forty-five day deadline, and October 29,1998 is day one.

¶ 21. With October 29, 1998 as day one, December 12, 1998 should be day forty-five. Locklear's petition and accompanying materials for fee waiver were received by the clerk of court's office on December 18.1998.

¶ 22. In order to obtain waiver of prepayment of costs and fees, an indigent prisoner must submit an original and one copy of the following papers:

(1) The Prisoner's Petition/Affidavit of Indi-gency; WlS. Stat. § 814.29(lm)(a)l;
(2) A certification from the Department of Justice regarding the number of litigation dismissals the prisoner has accumulated; WlS. Stat. §§ 801.02(7)(d) and 802.05(3)(c);
(3) A certified prison/jail trust account statement for the past six months; § 814.29(lm)(b)2;
(4) An authorization allowing the custodial institution to forward payments from the prisoner's trust account to the clerk of court's office; § 814.29(lm)(c)2; and
(5) All documentary evidence of exhaustion of administrative remedies; § 801.02(7)(c). This documentary evidence of exhaustion of administrative remedies is considered part of the initial pleading and must be attached to-all copies of the petition. Id.

The absence of any one of these requirements can lead to the court's rejection of the petition.

¶ 23. Locklear's December 18, 1998 materials included an original and two copies of a petition for certiorari, a proposed writ of certiorari, a proposed order waiving costs and fees, an affidavit of indigency, and a request to proceed without paying the filing fee. Locklear's certified trust account statement, dated April 24, 1998 through November 24, 1998, was received on December 17, 1998, and his authorization, pursuant to WlS. Stat. § 814.29(lm)(c)2, was received on December 18, 1998. Missing from Locklear's submissions were the required DOJ certification and all documentary proof of exhaustion of administrative remedies.

¶ 24. In a letter to the circuit court dated December 28, 1998, Locklear asserted that he had submitted two separate requests to the DOJ for a three-strikes certification, the first on October 13, 1998, and the second on November 22, 1998. Locklear apparently received no response to either of those requests prior to the expiration of the forty-five day deadline. In fact, it appears that the DOJ did not respond to Locklear's request until at least January 12, 1999, almost three months past his October 13, 1998 request, almost two months past his November 22, 1998 request, and well past the forty-five day deadline.

¶ 25. In State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409, we concluded that when a prison inmate places a certiorari petition in the institution's mailbox for forwarding to the circuit court, the forty-five day time limit in Wis. Stat. § 893.735(2) is tolled. Shimkus, 2000 WI App 238 at ¶ 14. Citing to the United States Supreme Court in Houston v. Lack, 487 U.S. 266 (1988), we reasoned that

[piro se prisoners necessarily lose all control over (and all contact with) their documents the moment they deliver them to the prison authorities. . . . Reliance must instead be placed wholly on the good faith of prison officials and employees to see to the timely forwarding of the documents to the designated office. If this trust is violated, whether willfully or through neglect or simple inadvertence, the prisoner loses by default.

Shimkus, 2000 WI App 238 at ¶ 13. We therefore effectively tolled the statutory forty-five day time limit from the time the appropriate documents are deposited in the prison mail receptacle and their receipt by the clerk of court. Id. at ¶ 9.

¶ 26. Here again, when obtaining a DOJ certification, a prisoner must rely wholly on the good faith of government officials in order to acquire documentation necessary to obtain waiver of prepayment of costs and fees and initiate litigation. As with the mailing of a prisoner's papers, it would be inequitable to penalize Locklear for the DOJ's delay in providing him with this required documentation, particularly as here where the conditional liberty of a probationer is at stake. "[T]he pro se prisoner has no choice but to entrust [his papers] ... to prison authorities whom he cannot control or supervise and who may have every incentive to delay." Steldt, 2000 WI App 176 at ¶ 14 (citation omitted). Equity requires that we toll the statute of limitations either from the date of Locklear's first or second request until the date he received the DOJ certification.

¶ 27. Locklear claims that he first requested a DOJ certification on October 13,1998; this request was made prior to the commencement of the forty-five day time period on October 28, 1998. On November 22, 1998, Locklear submitted a second request for a DOJ certification. November 22,1998 was day twenty-five.

¶ 28. Locklear could not proceed with his petition without this DOJ certification, the receipt of which lay totally in the hands of government officials; we therefore toll the running of the statute of limitations from day twenty-five until Locklear's receipt of this certification.

¶ 29. There is no evidence in the record as to when Locklear received the DOJ certification. The earliest DOJ certification is dated January 12, 1999, and was submitted to the court on January 29,1999. Therefore, Locklear must have received this certification sometime between January 12 and January 29, 1999. Giving the DOJ the benefit of the doubt, we shall utilize January 13, 1999, the day after the certification was issued, as the date of Locklear's receipt. January 13, 1999 then becomes the new day twenty-five, and February 2, 1999 becomes the new day forty-five.

¶ 30. Locklear's papers were adjudged complete and accepted for filing on April 19, 1999; his submissions included an indigency affidavit, certified trust account statement, DOJ certification, his authorization, and Schwarz's decision. However, all these same papers were before the circuit court on January 29, 1999.

¶ 31. On January 13, 1999, the circuit court sent Locklear a letter indicating that all of his papers were currently before the court except for the DOJ certification and the certified trust account statement. On January 29, 1999, these missing documents were received by the clerk of court's office. If Locklear's papers were complete except for the DOJ certification and certified prison trust account statement on January 13, 1999, and on January 29, 1999, these documents were provided to the court, Locklear's papers would then be complete and ready for acceptance on January 29,1999.

¶ 32. Because the statute of limitations must be tolled while the prisoner waits for the DOJ to provide him or her with the required documentation, and Locklear's papers were, in fact, complete on January 29, 1999, before the expiration of the forty-five day period on February 2, 1999, Locklear's petition was, in fact, filed in a timely manner. We must therefore reverse the order of the circuit court.

¶ 33. We also must note that there appeared to be some delay in providing Locklear his personal and legal property after his transfer and with postage and copying services. Locklear was transferred from CCI to DCI on October 20, 1998. The record indicates that he did not receive his personal property until ten days later, October 30,1998.

¶ 34. Furthermore, on October 20, 1998, and October 22, 1998, Locklear made two requests for photocopying services. There is no evidence of a response to either of these requests. On or about November 19, 1998, Locklear made another request for photocopies. This request was denied, with the terse explanation, "You are not indigent." Locklear then submitted a money disbursement request for photocopies on November 22, 1998. However, this disbursement request was denied because Locklear had "insufficient funds."

¶ 35. On November 11, 1998, Locklear filed an interview/information request form, asking why money his wife had recently deposited in his prison account was not reflected in his prison trust account statement. The response indicated "75% of all incoming funds is being deducted for a legal loan issued to you by CCI info. #05211998."

¶ 36. On November 23, 1998, Locklear wrote a letter to Cheri Rose in the DCI records office, asking how he could have insufficient funds to pay for the photocopying charges, yet still not be considered indigent. Rose's response was:

The bottom line is that you do not have enough money for the copy work. The papers you sent along to justify the copies did not ask for 7 copies ... some of the papers looked like they were typed by you. You will have to type up as many copies as you need.
Attached is the complete copy work procedure. You will not get the copies without following the directions or if you do not have the money.
You might want to send out the paper work to friends or family and have them copy it.

¶ 37. On November 23, 1998, Locklear again wrote a letter, asking for photocopies and the proper way in which to request photocopies. The undated response contradicts Rose's response, stating, "You are not indigent. You have $4.64 in your regular account. On 11/24/98 money, $.60, was deducted from your account for copies. You have received money from Betty Locklear. You will need to contact Mr. Hart-Assoc. Warden-Treatment if you need copy work done." On November 23, 1998, Locklear submitted another request for photocopies. There is no evidence of a response. There is a memo from James Hart, undated, which states: "Re: legal loan. You should submit a signed disbursement request, specifying the items required to my office."

¶ 38. On November 25, 1998, Locklear wrote to the circuit court, asking the court to issue an order commanding the DOC to provide him with the requested services. On December 10, 1998, Locklear filed an inmate complaint about his inability to obtain a legal loan and the photocopies that he needed. His complaint was denied for the following reasons:

The inmate claims that staff would not make photocopies of legal documents for him because he couldn't provide them with proof of a court deadline. Cheri Rose, when contacted, indicated that the inmate did not have any proof of a court deadline. Investigation reveals that Cheri Rose acted in accordance with established procedure. The documents the inmate wanted copied could very well be in handwritten form as the courts do accept handwritten materials. Therefore, I recommend that this complaint be dismissed.

¶ 39. Locklear's first request was denied for insufficient funds, but the request for a legal loan was denied because he had too much money. Locklear's wife provided him money, which was apparently confiscated to pay off a previous legal loan. Locklear's requests were also denied because he allegedly did not comply with established procedure and because he did not provide proof of an established court deadline. Rose's initial denial conflicts with the reasons she provided to the inmate complaint investigator. While Locklear and all prisoners seeking photocopy services are counseled to comply with established prison procedures for obtaining these services, we strongly advise the DOC to promptly address such requests, complying with all constitutional requirements and the requirements of Wis. Admin. Code §§ DOC 309.155 and DOC 309.51 to avoid any potential accusations of denial of access to the courts.

¶ 40. Furthermore, we must comment that the state of the record in this matter is inexcusably disorganized. Documents did not appear to be in any semblance of order, and some documents had two or three different date stamps on them, rendering it difficult to determine when the papers were received. In addition, it appears that Locklear's papers were received and rejected numerous times and for various reasons. However, it is not always clear when or even if Locklear's papers were returned to him after each rejection or which rejection corresponded to which submission. Because of the shortened deadline for prisoners filing certiorari actions, it is extremely important that both clerk of courts and judicial offices keep thorough and meticulous records when dealing with pro se prisoner submissions. We strongly suggest that each county develop and maintain a system for processing pro se prisoner civil filings, not only to aid in their processing of the submissions, but also, if later necessary, to facilitate appellate review.

CONCLUSION

¶ 41. Because the statute of limitations is tolled while a prisoner waits for the DOJ to provide him or her with the required WlS. Stat. §§ 801.02(7)(d) and 802.05(3)(c) certification, Locklear's petition was timely filed. We therefore reverse the order of the circuit court and remand this matter for proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded.

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

       As noted above, in order to obtain waiver of prepayment of costs and fees, an indigent prisoner must submit, among other things, all documentary evidence of exhaustion of administrative remedies, which must be attached to all copies of the initial pleading. Wis. Stat. § 801.02(7)(c). In Locklear's case, all documentary evidence of exhaustion of administrative remedies would have included a copy of the ALJ decision revoking his probation, Locklear's appeal of the ALJ decision, and Schwarz's final decision. However, there is no evidence in the record that Locklear's petition included copies of the ALJ decision revoking his probation or his appeal of the ALJ decision. Nevertheless, the circuit court accepted Locklear's materials for filing. We are bound by the record as it comes to us. Fiumefreddo v. McLean, 174 Wis. 2d 10, 26, 496 N.W.2d 226 (Ct. App. 1993). When an appellate record is incomplete, we must assume that the missing material supports the circuit court's ruling. Id. at 27.

       That same day, the circuit court rejected Locklear's papers because of the supposedly missing DOJ certification and certified prison trust account statement. No explanation is provided for this inconsistency.

       We note that some counties (Dane county, for example) have in place a system which includes forms and filing requirement checklists, designed to evaluate and process pro se prisoner civil litigation.


source: Caselaw Access Project

author: ZAPPEN, J.

license: Public Domain

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

      No. 00-0889-CR.

      Submitted on briefs November 7, 2000.

    Decided February 22, 2001.

    2001 WI App 63
    (Also reported in 626 N.W.2d 5.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Michael R. Klos, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jane Krueger Smith of Oconto Falls.

      Before Vergeront, Deininger and Zappen, JJ.

      Petition to review granted.

       Circuit Judge Edward F. Zappen is sitting by special assignment pursuant to the Judicial Exchange Program.

   ZAPPEN, J.

¶ 1. The State appeals from an order that dismissed a criminal prosecution with prejudice because the State violated WlS. Stat. § 971.11(2) (1999-2000), a portion of Wisconsin's Intrastate Detainers Act. The State contends that the statute requires the court to dismiss the complaint without prejudice. Because we conclude that § 971.11 permits the circuit court to dismiss with prejudice, we affirm.

¶ 2. Wisconsin's Intrastate Detainers Act, WlS. Stat. § 971.11, permits an inmate of a state prison to request that a pending felony case against the inmate be brought to trial within 120 days after the district attorney receives a request for prompt disposition of the case. The act mandates dismissal if the case is not brought on for trial within the 120 days, providing in relevant part as follows:

971.11 Prompt disposition of intrastate detainers.
(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. After the preliminary examination or upon waiver thereof, the district attorney shall file an information, unless it has already been filed, and mail a copy thereof to the warden or superintendent for service on the inmate. 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. . . any pending case ... is not brought on for trial within the time specified in sub. (2) . . . the case shall be dismissed. ...

BACKGROUND

¶ 3. The facts are undisputed. On March 16, 1999, the district attorney for Dodge County filed a criminal complaint alleging that a Fox Lake Correctional Institution inmate, Christopher Davis, was involved in a conspiracy to deliver marijuana at Fox Lake. On March 23,1999, the district attorney received Davis's request for prompt disposition of the case. This triggered the 120-day period during which the district attorney was required to bring the case to trial.

¶ 4. On January 3, 2000 and January 7, 2000, Davis filed requests for dismissal of the prosecution with prejudice because the district attorney had failed to bring Davis to trial within 120 days after the district attorney received the request for prompt disposition of his case. The circuit court ordered Davis's complaint to be dismissed with prejudice. The State appeals.

DISCUSSION

¶ 5. Neither party questions the authority of the court to dismiss the criminal charges for a violation of the 120-day time deadline. The issue is whether the circuit court may do so with prejudice. The State argues that the circuit court had no such authority.

¶ 6. The State relies on State v. Braunsdorf, 98 Wis. 2d 569, 297 N.W.2d 808 (1980), for the proposition that circuit courts have no inherent power to dismiss criminal complaints with prejudice. Braunsdorf was charged with welfare fraud and the case was scheduled for a jury trial as the number two case on the calendar for December 19, 1978. Id. at 570. On the morning of the scheduled trial date, the assistant district attorney moved the court for an adjournment. Id. at 571. In response to the court's inquiries, he stated that, although he had been aware of the forthcoming trial date for several weeks, he had not undertaken any action to contact witnesses and place them on standby or otherwise to prepare for the trial of the case. When the circuit court denied the assistant district attorney's motion to adjourn, he then moved to dismiss the case. Id. at 572. The circuit court granted the motion, but ordered dismissal with prejudice. The State appealed.

¶ 7. This court reversed, concluding that, in the absence of statutory authority, a circuit court did not possess the inherent power to dismiss a criminal case with prejudice on nonconstitutional grounds prior to the attachment of jeopardy. We modified the order of dismissal accordingly, and the supreme court affirmed. State v. Braunsdorf, 98 Wis. 2d 569, 571, 297 N.W.2d 808 (1980). The supreme court concluded "that the power to dismiss a criminal case with prejudice prior to jeopardy on nonconstitutional grounds is not essential to the existence or the orderly functioning of a trial court, and it is not, therefore, an inherent power of the trial courts of this state." Id. at 585.

¶ 8. We agree with Davis that Braunsdorf is not controlling on the present facts. In Braunsdorf, the circuit court had no statutory authority to dismiss a criminal case. In this case, however, there is a statutory requirement to dismiss. WISCONSIN STAT. § 971.11(7) explicitly directs the circuit court to dismiss a criminal case for failure to comply with the time limits of §971.11(2) or (3). The statute is silent on whether dismissal is to be with or without prejudice. This omission creates an ambiguity that we must resolve.

¶ 9. The interpretation of a statute is a question of law, which we review de novo. DOR v. Milwaukee Brewers Baseball Club, 111 Wis. 2d 571, 577, 331 N.W.2d 383 (1983). The goal of statutory interpretation is to discern and to give effect to the intent of the legislature. State v. Cardenas-Hernandez, 219 Wis. 2d 516, 538 ¶ 36, 579 N.W.2d 678 (1998). If a statute does not clearly set forth the legislative intent, we then look to the scope, history, context, subject matter, and object of the statute. Jones v. State, 226 Wis. 2d 565, 574 ¶ 10, 594 N.W.2d 738 (1999) (citations omitted), cert. denied, 528 U.S. 1143 (2000).

¶ 10. There are several Wisconsin statutes which unambiguously direct that a dismissal is to be with or without prejudice. For example:

§ 971.14(1) Competency proceedings.
(c) ... If the court finds that any charge lacks probable cause, it shall dismiss the charge without prejudice and release the defendant. . . .
§ 971.37(3) Deferred prosecution programs; domestic abuse.
Upon completion of the period of the agreement, if the agreement has not been terminated under sub. (2), the court shall dismiss, with prejudice, any charge or charges against the person in connection with the crime specified in sub. (lm), or if no such charges have been filed, none may be filed.
§ 971.39 Deferred prosecution program; agreements with department.
(f) The circuit court shall dismiss, with prejudice, any charge which is subject to the agreement upon the completion of the period of the agreement, unless prosecution has been resumed under par. (e).

(Emphasis added.)

¶ 11. The history of WlS. STAT. § 971.11 suggests that the legislature intended to leave the matter up to a court's discretion. The original proposal for the intrastate detainers statute, WlS. Stat. § 955.22(7) (Laws of 1961, ch. 109), the predecessor of the current §971.11(7), came from the Wisconsin Department of Public Welfare in July 1960. The first draft, introduced in February 1961 as A.B. 292, provided that "[i]f the district attorney moves to dismiss any pending charge or if it is not brought on for trial within the time herein specified, the charge shall be forever barred." The director of the Wisconsin Department of Public Welfare proposed amending the statute to read "shall be forever barred, unless it is dismissed without prejudice." (Emphasis added.) The bill as passed contains the language in the present day version, "the case shall be dismissed" with no reference to prejudice. Thus, language relating to prejudice was proposed both ways. That is, with prejudice and without prejudice, and ultimately both proposals were rejected in favor of the present language not specifying either.

¶ 12. The State argues that the evolution of the statute shows the legislature did not intend to either require or authorize dismissal with prejudice. We note that the same evolution shows that it could have but did not direct dismissal without prejudice. The history of this statute is fairly inconclusive. The issue of prejudice was considered and left open. The State's argument that the court has no authority to dismiss with prejudice leads to the conclusion that all dismissals must be without prejudice. The State cites no authority for that proposition nor can we find any.

¶ 13. If the dismissals under WlS. STAT. § 971.11 must be without prejudice, the prosecutor can reinstate the dismissed proceedings by refiling the former complaint without ever permitting the inmate the relief contemplated by the statute. By so doing the State is able to obtain a fresh 120 days, while the inmate remains adversely affected because of his security classification at the institution. If this can be done once, why not several times? By the repeated refilings, the 120-day deadline set by statute for disposition can become virtually unlimited. (In Davis's case 289 days passed by the time he filed a motion to dismiss for violation of the 120-day time limit.) A dismissal without prejudice leaves the inmate without the remedy permitted under the statute.

¶ 14. This court has previously recognized that an inmate has a special interest in speedy disposition of detainers. In State v. Adams, 207 Wis. 2d 568, 575, 558 N.W.2d 923 (Ct. App. 1996), we observed "that § 971.11, Stats, indicates a legislative intent to provide the option of a speedier disposition for inmates than for others charged with crimes." Early support for the legislation is consistent with that view. In a letter to the members of the State Board of Public Welfare, the Director of Public Welfare recommended passage of legislation relating the prompt disposition of intrastate detainers. He noted among the reasons in support of the law that "[a] prisoner would have a greater degree of knowledge about his future. He could begin more constructive planning and co-operate on a treatment program with the knowledge his efforts would not be minimized by the threat of unsatisfied charges."

¶ 15. We recognize that prosecutors in this state enjoy largely unfettered discretion in the prosecution of crime. Braunsdorf 98 Wis. 2d at 572 (citing Sears v. State, 94 Wis. 2d 128, 133, 287 N.W.2d 785 (1980)). That discretion, however, is not without its limits. Those limits can be reached when the legislature speaks or the courts have the power to intervene. Here the legislature placed a 120-day limit on the time within which a prosecutor must bring a case to trial when a proper demand has been made under WlS. Stat. §971.11. The legislature has left the matter up to the courts to exercise its discretion to dismiss with prejudice in a proper case lest the statute have no meaning at all. The proper control of continued refiling of charges by the State is the authority of the court to dismiss with prejudice.

¶ 16. We conclude, therefore, that the legislature intended to leave that decision to the circuit court.

¶ 17. Having concluded that the question whether to dismiss with or without prejudice is left to the circuit court, it remains for us to examine the record to determine whether the exercise of discretion was proper in this case. A court properly exercises discretion when it considers the facts of record under the relevant law and reasons its way to a rational conclusion. Burkes v. Hales, 165 Wis. 2d 585, 590-91, 478 N.W.2d 37 (Ct. App. 1991).

¶ 18. The circuit court here concluded that a dismissal without prejudice left the inmate without a remedy.

I also find as a matter of law that without dismissal without [sic] prejudice in this Court's view would leave absolutely no teeth in the statute whatsoever. As far as I'm concerned, it would mean that the inmate has a remedy without any enforcement power. As soon as he requests prompt disposition, if it's not had within 120 days, the case is dismissed and we refile the charges.

¶ 19. The circuit court also recognized the special interest that an inmate has in the speedy disposition of pending criminal charges.

[B]ecause of my knowledge here sitting in this court with inmates coming to the courthouse on a regular basis because of the number of institutions we have in this county and because these charges pending do affect their security classification . . . why would somebody put this in the statute to get this done? ...
I'm assuming we are all interested in rehabilitating our inmates. We can't rehabilitate out inmates by keeping them in security classifications simply because there are charges pending elsewhere.

¶ 20. We determine that the circuit judge properly applied the law and exercised discretion in this case.

¶ 21. In sum, we conclude that a court, when faced with a motion to dismiss for failure to comply with the time requirements of WlS. Stat. § 971.11(2) or (3), has the discretion to direct that the dismissal be with or without prejudice as the court deems proper under the circumstances.

CONCLUSION

¶ 22. For the reasons discussed above, we affirm the circuit court's dismissal with prejudice.

By the Court. — Order affirmed.

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

       The State also argues that no violation of the 120-day time deadline occurred because Davis waived his statutory right to prompt disposition. Because this latter issue was not raised in the circuit court, it will not be considered here. See County of Columbia v. Bylewski, 94 Wis. 2d 153, 171, 288 N.W.2d 129 (1980). Additionally, the record is insufficient to evaluate whether any actions of the defendant or defense counsel could be construed as a waiver.

        State v. Braunsdorf, 92 Wis. 2d 849, 853—54, 286 N.W.2d 14 (Ct. App. 1979), aff'd, 98 Wis. 2d 569, 297 N.W.2d 808 (1980).


author: VERGERONT, J.

text:
    Bank of Sun Prairie, Plaintiff-Appellant, v. Marshall Development Company, Thomas E. Schoenauer, Kaltenberg Seed Farms, Inc., Badgerland Farm Credit Services, ACA, State of Wisconsin-Department of Workforce Development, and State of Wisconsin-Department of Revenue, Defendants, John J. Grimmer, Defendant-Respondent.

    Court of Appeals

      No. 00-1076.

      Submitted on briefs November 7, 2000.
    Decided February 22, 2001.

    2001 WI App 64
    (Also reported in 626 N.W.2d 319.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Kimberly P. Sebranek and Kevin M. Laffey of Eustice, Laffey & Shellander, S.C., Sun Prairie.
    On behalf of the defendant-respondent, the pause was submitted on the brief of Robert J. Welcenbach and Michael J. Widmann of Welcenbach & Widmann, Milwaukee.
    A nonparty brief was filed by John E. Knight and James E. Bartzen of Boardman, Suhr, Curry & Field LLP, Madison, for Wisconsin Bankers Association.
    Before Vergeront, Roggensack and Deininger, JJ.

      Petition to review denied.

   VERGERONT, J.

¶ 1. The Bank of Sun Prairie appeals the summary judgment dismissing its action for foreclosure of a mortgage on the ground that the Bank had previously obtained a deficiency judgment in a foreclosure action on another mortgage securing the same debt. The trial court concluded that under the doctrine of merger, the debt was extinguished when the deficiency judgment was entered, and the Bank's only remedy was to execute on the deficiency judgment. We agree with the Bank that the doctrine of merger does not bar this action, and we also conclude neither Wisconsin case law nor statutory law nor the doctrine of claim preclusion bars this action. We therefore reverse and remand for further proceedings.

BACKGROUND

¶ 2. The parties agree the facts are not in dispute. Central States Construction Company executed and delivered to the Bank a note in the amount of $198,000. The president of Central States, Thomas Ludlow, personally guaranteed the debt. The debt was secured by two mortgages: one granted by Central States on real estate located in Sun Prairie, Wisconsin, and one granted by Marshall Development Company on real estate located in Marshall, Wisconsin. After Central States defaulted on the note, the Bank brought an action against Central States and Ludlow, requesting foreclosure of the Sun Prairie mortgage and a deficiency judgment. The court in that action entered a judgment of foreclosure, which provided that if the proceeds of the sale of the Sun Prairie property were insufficient to pay the amount due the Bank under the note, a deficiency judgment was to be entered against Central States and Ludlow. On April 2,1998, the court entered an order in that action confirming the sheriff s sale and directing a deficiency judgment to be entered against Central States and Ludlow, jointly and severally in the amount of $173,636.41.

¶ 3. The Bank filed this action against Marshall Development on June 9,1999, alleging the amount due under the judgment against Central States and Lud-low and requesting foreclosure of the Marshall mortgage. The Bank also named as defendants persons with an interest in the Marshall property, including John Grimmer. Grimmer moved for summary judgment, asserting that the note and all mortgages merged into the deficiency judgment and the Bank was thus precluded from foreclosing on the Marshall mortgage. He also asserted the doctrine of claim preclusion barred the Bank from maintaining this action. The court agreed with Grimmer's merger argument and did not reach the issue of claim preclusion. Relying on Production Credit Ass'n v. Laufenberg, 143 Wis. 2d 200, 205, 420 N.W.2d 778 (Ct. App. 1988), the court ruled that, by operation of the doctrine of merger, with the entry of the deficiency judgment the note ceased to bind the parties, and the Bank's only recourse was to enforce the deficiency judgment. The court concluded: "[t]o permit the Bank to foreclose on the second mortgage in addition to collecting on the deficiency judgment would result in a windfall to the plaintiff and allow the Bank to foreclose on a mortgage that secures a debt that no longer exists."

DISCUSSION

¶ 4. The Bank argues on appeal that the trial court erred in applying the doctrine of merger to bar this action. It also argues the alternative grounds asserted by Grimmer to support the summary judgment — Wis. STAT. §§ 846.10 and 846.101 (1999-2000) as construed in Glover v. Marine Bank, 117 Wis. 2d 684, 693-94, 345 N.W.2d 449 (1984), and the doctrine of claim preclusion — do not bar this action.

¶ 5. When we review a summary judgment we apply the same methodology, as the trial court, and our review is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 NW.2d 816 (1987). The remedy is appropriate in cases where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984).

Merger

¶ 6. The general statement of the merger doctrine, which we adopted from Restatement (Second) of JUDGMENTS § 18 (1982) in Waukesha Concrete Prods. v. Capitol Indem. Corp., 127 Wis. 2d 332, 343-44, 379 N.W.2d 333 (Ct. App. 1985), is:

When a valid and final personal judgment is rendered in favor of the plaintiff:
(1) The plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment; and
(2) In an action upon the judgment, the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first action.

¶ 7. In Production Credit, we applied this doctrine to preclude recovery of costs and attorney fees under a contract provision after a judgment was entered on the claim for breach of that contract, and the judgment did not include costs and attorney fees as provided in the contract. Production Credit, 143 Wis. 2d at 205-06. We described the doctrine of merger as "a common law principle that is generally applied throughout state and federal forums in a consistent manner." Id. at 205. In Waukesha Concrete, we applied the doctrine to preclude recovery of the contractual rate of interest (rather than the statutory rate of 12% on judgments), concluding that, upon the entry of the judgment on the claim for breach of contract, the claim for interest under the contract was extinguished. Wau-kesha Concrete, 127 Wis. 2d at 343-44.

¶ 8. Our reasoning in Production Credit and Waukesha Concrete instructs that, with the entry of the deficiency judgment in the Bank's first action, the Bank's claim on the note merged with that judgment, thereby precluding the Bank from bringing another action to recover on the note. However, neither the general statement of the merger doctrine we adopted in Waukesha Concrete, nor the application of it in either that case ox Production Credit, is a basis for concluding the deficiency judgment in the Bank's first action precludes a later lawsuit to foreclose on a mortgage securing the same debt, when that mortgage was not the subject of foreclosure in the first action. Indeed, Restatement (Second) of Judgments § 18 cmt. g, illus. 10 (1982) specifically provides otherwise:

Incidents of claim preserved. When by reason of the plaintiffs obtaining judgment upon a claim the original claim is extinguished and rights arise upon the judgment, advantages to which the plaintiff was entitled with respect to the original claim may still be preserved despite the judgment. Thus if a creditor has a lien upon property of the debtor and obtains a judgment against him, the creditor does not thereby lose the benefit of the lien.

(Emphasis added.)

¶ 9. As courts in other jurisdictions that have followed Restatement cmt. g explain,

[t]he doctrine of merger is an aspect of res judicata which prevents relitigation of existing judgments . . . [and] serves to prevent the splitting of causes of action. . . . [However] [m]erger does not discharge the debt for all purposes. The judgment only changes the form of the action for recovery. The creditor retains the right to enforce a lien or gain possession of property held as collateral for the debt.

Brenton State Bank v. Tiffany, 440 N.W.2d 583, 585 (Iowa 1989) (footnote added) (citations omitted). See also Albrecht v. Zwaanshoek Holding En Financiering, 816 P.2d 808, 811 (Wyo. 1991).

¶ 10. Allowing an action to foreclose on a mortgage securing a debt that has been reduced to a judgment is the general rule:

Independent action as bar to foreclosure. Except as affected by statute in a few states and subject to the conflict of authority as respects the effect of an execution or an attachment upon the mortgaged property by the judgment creditor or a sale thereunder, the cases are uniform in holding that until the mortgage debt is actually satisfied, the recovery of a judgment on the obligation secured by a mortgage, without the foreclosure of the mortgage, although merging the debt in the judgment, has no effect upon the mortgage or its lien, does not merge it, and does not preclude its foreclosure in a subsequent suit instituted for that purpose, or the exercise of the power of sale contained in the mortgage or deed of trust — the conclusion often reached in such cases being that the debt is not destroyed by the merger and that the mortgage secures the debt in its new form as merged in the judgment.

55 Am. Jur. 2d § 524 (1996) (footnotes omitted). Accord 50 C.J.S. § 773(c) (1997) (in absence of statute to contrary, it is generally held that an unsatisfied judgment on a debt or a note evidencing it, is no bar to an action to enforce mortgage or other lien given as security for such debt).

¶ 11. Grimmer contends, however, that Wisconsin case law addressing the relationship between deficiency judgments and actions for foreclosure of mortgages require that we apply the doctrine of merger in this case. Our examination of the cases Grimmer relies on persuades us they neither require nor provide support for that result.

¶ 12. In Wisconsin, the cause of action on a note evidencing an indebtedness and the cause of action to foreclose the mortgage on real estate that secures the indebtedness are distinct. Witter v. Neeves, 78 Wis. 547, 548, 47 N.W. 938 (1891). At common law these remedies had to be pursued separately; they could be brought at the same time, or either one could be brought before the other. Id. Since 1862, Wisconsin has had a statute authorizing the plaintiff in a foreclosure action to obtain a judgment for deficiency against the defendants who are personally liable on the note. Glover, 117 Wis. 2d at 693-94. That statute, now numbered Wis. Stat. § 846.04(1), permits but does not require a plaintiff in a foreclosure action to "demand judgment for any deficiency that may remain due the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage."

¶ 13. Because a creditor in Wisconsin is not required by statute to combine the action on a note with the action to foreclose, we do not agree with Grimmer that Wisconsin is a "one action" state. The "one action" states are the few states that do not follow the general rule embodied in RESTATEMENT cmt. g. See Kepler v. Slade, 896 P.2d 482, 485 (N.M. 1995). See also In re Sunnymead Shopping Ctr. Co., 178 B.R. 809, 815 (9th Cir. 1995) (discussing California's "one-action" statute).

¶ 14. Grimmer relies on Witter v. Neeves, 78 Wis. 547, 47 N.W. 938 (1891), for the proposition that "when a creditor pursues an action upon a note to a deficiency judgment without bringing a concurrent foreclosure action, that creditor has no further remedy in another action." However, this is not the holding in Witter. In Witter, the creditor had previously brought an action for foreclosure under the predecessor to Wis. Stat. § 846.04(1); the court characterized that prior action as uniting in one action the action at law on the note and the action in equity to foreclose the mortgage. Witter, 78 Wis. at 548. The creditor then brought an action at law on the note. The court concluded the second action on the note was precluded because the judgment in the first action (fixing the amount of debt due, ordering a sale of the mortgaged property, and directing that judgment be entered for any deficiency) had fully and finally adjudicated the rights of the parties under the note. Id. at 549. The court rejected the argument that the fact that a deficiency judgment had not yet been entered required a different result, finding the entry of a deficiency judgment to be merely a ministerial act. Id. at 549-50.

¶ 15. Although using the term "res adjudicata," the reasoning and result in Witter is consistent with the doctrine of merger: the Witter court barred a subsequent action on the note when the debt due under the note had already been reduced to a judgment in the form of an order for a deficiency judgment after a sale. Witter, like Production Credit and Waukesha Concrete, would prevent the Bank from bringing an action on the note, since the Bank has already obtained a deficiency judgment. But the Bank is not doing that.

¶ 16. Roseliep v. Herro, 206 Wis. 256, 262, 239 N.W. 413 (1931), on which Grimmer relies to reinforce his reading of Witter, makes clear Grimmer is overlooking the significance of the nature of the second action:

The only exception to both proceeding at common law on the note and also foreclosing the mortgage is that found in Witter v. Neeves, supra, wherein it was held that after judgment of foreclosure has been entered which provides for a deficiency judgment, no action on the note may thereafter be brought.

(Emphasis added.)

¶ 17. In Roseliep, the court held that a judgment on a note given to a mechanic's lien claimant did not prevent the lien claimant from bringing a subsequent action to foreclose on the lien. Id. at 263. This holding, rather than supporting the application of merger in this case, is consistent with the view expressed in Restatement cmt. g: the fact that the debt due under the note has merged with the judgment on the note does not prevent an action to foreclose on the lien.

¶ 18. As additional support for his merger argument, Grimmer relies on the line of cases that emphasize the relationship between a debt secured by a mortgage and the mortgage. For example, Doyon & Rayne Lumber Co. v. Nichols, 196 Wis. 387, 390, 220 N.W. 181 (1928), holds since there can be no mortgage without a debt, and since the mortgage in that case did not secure any debt at the time the mortgage was given, the mortgage was not a valid lien on the property on that date. We find nothing in the holding or reasoning of this or other similar cases to suggest a valid mortgage no longer exists solely because the debt the mortgage secures has been reduced to a judgment.

¶ 19. The eases Grimmer cites that concern the finality of a judgment of foreclosure for purposes of appeal also do not support his merger argument. In Anchor Savings & Loan Ass'n v. Coyle, 145 Wis. 2d 375, 380, 427 N.W.2d 383 (Ct. App. 1988), overruled on other grounds, 148 Wis. 2d 94, 435 N.W.2d 727 (1989), we held that an order in a foreclosure action confirming a sheriff sale is a final order for purposes of appeal under WlS. Stat. § 808.03(1), even though the order contemplated the entry of a deficiency judgment. In reaching this conclusion, we referred to cases holding that the order for a deficiency judgment in the judgment of foreclosure "is a final adjudication of the defendant's liability for the debt," id. at 386 (quoting Kane v. Williams, 99 Wis. 65, 72, 74 N.W. 570 (1898)), and the entry of the deficiency judgment is merely a ministerial act, which is riot itself a final judgment for purposes of appeal, id. at 386. In the situation before us, there is no question the judgment in the first action was a final adjudication of the personal liability of Ludlow and Central States on the note. Rather, the question here is whether that judgment precludes the Bank from seeking foreclosure on a different mortgage on different property that secures the same debt, and Anchor Savings has no bearing on this question.

¶ 20. We are satisfied no Wisconsin case has applied the merger doctrine to bar an action to foreclose on security for a debt because a judgment has been entered on the note promising to repay the debt. We are also satisfied RESTATEMENT cmt. g is consistent with Wisconsin case law recognizing that the cause of action for a judgment on a note promising to repay a debt and a cause of action to foreclose a lien that secures the debt are distinct, and permits the latter to proceed separately and subsequently to the former. Roseliep, 206 Wis. at 261-62. We therefore conclude the doctrine of merger does not bar the Bank's action to foreclose on the Marshall mortgage solely because the Bank has already obtained a deficiency judgment.

¶ 21. We do not agree with Grimmer that the principle underlying RESTATEMENT cmt. g does not apply here because the Bank has already foreclosed on one mortgage. With respect to the merger doctrine, the inquiry is what cause of action has merged with the deficiency judgment. Properly articulated, Grimmer's objection to an action for mortgage foreclosure, after there is already a foreclosure judgment on another mortgage securing the same debt and a deficiency judgment, has a basis, if at all, in either a statutory bar or claim preclusion. We examine these in turn.

Statutory Bar

¶ 22. Grimmer contends that Wis. Stat. §§ 846.10 and 846.101 and Glover, which interprets these statutes, prevent a creditor from relying on remaining mortgages once it obtains a deficiency judgment in an action to foreclose on another mortgage securing the same debt. We conclude neither the holding nor the reasoning in Glover supports this result, nor does any applicable statute.

¶ 23. In Glover, as in this case, several mortgages secured the same debt. The creditor proceeded under Wis. Stat. § 846.101 to foreclose on three of the five mortgages and obtained a judgment of foreclosure and sale that stated the amount due on the notes and waived a deficiency judgment. The sale was confirmed, but the price obtained was less than the amount due on the notes. The individual debtors brought suit requesting that both notes be declared paid in full and the two mortgages not the subject of the foreclosure action to be discharged. They contended that, because the creditor had waived a deficiency judgment, the confirmed sale had the effect of satisfying the debt; since there could be no mortgage when there was no debt, they argued that the two remaining mortgages were "extinguished." The creditor objected, contending that, by electing to proceed under § 846.101 on the foreclosure of the three mortgages, it waived only the right to maintain an action for a deficiency on the notes, and still retained the right to realize upon the security by foreclosing on the two remaining mortgages, as long as no action for a deficiency judgment was brought.

¶ 24. The court agreed with the creditor. It rejected the debtors' argument, holding that "a waiver of personal deficiency does not imply waiving the right to make further applications of the remaining security toward the debt. The [creditor] is entitled to foreclosure on the remaining mortgages securing the debt, since the primary obligation for the debt still exists until all the security has been applied toward it." Glover, 117 Wis. 2d at 697. This conclusion, the court stated, was consistent with recognizing the separate and distinct elements of the action to apply the security toward the debt and the remedy at law for personal liability for the debt — a distinction that still existed even though both were now available in one action. Id. The court also observed the debtor's waiver argument was an unreasonable reading of Wis. STAT. § 846.101 because it deprives the creditor of the security on which it initially agreed to extend the loan and provides a windfall to the mortgagor. Glover, 117 Wis. 2d at 699.

¶ 25. In explaining why the creditor could not seek a deficiency if the sale of the two remaining properties were not sufficient to satisfy the indebtedness, the court relied on the purpose of WlS. STAT. § 846.101. The legislature intended, the court stated, that the statute provide a simplified alternative, allowing the mortgagee the benefit of a shortened period of redemption while protecting the mortgagor by a waiver of deficiency judgment. Glover, 117 Wis. 2d at 694-95, 699. The court found this intent best carried out by not allowing the creditor to obtain a shortened redemption period by waiving the deficiency as to some mortgages and then attempting to obtain a deficiency judgment when foreclosing the mortgages on other properties. Id. In effect, the Glover court treated the election of a waiver of a deficiency judgment in the first foreclosure action as a continuing waiver of a deficiency judgment against those same mortgagors in any later action to foreclose on other mortgages securing the same debt.

¶ 26. The Glover court's concern with maintaining the balance embodied in WlS. Stat. § 846.101, when there is more than one mortgage securing the same debt foreclosed in successive actions, is not present in this case. First and foremost, the persons against whom the Bank obtained the deficiency judgment, Ludlow and Central States, are not the mortgagors of the property being foreclosed in this action. Therefore, their interest in being able to have either the advantage of a longer period to redeem their property or the advantage of no judgment of personal liability for a deficiency — the interests the Glover court identified as the foundation for its interpretation of § 846.101 — is not implicated in this case.

¶ 27. Second, the Bank did not take advantage of a shorter period of redemption in the first action by an election to waive the deficiency judgment. In the first action, the Bank invoked WlS. STAT. § 846.102, which provides that a sale may take place two months from entry of the judgment of foreclosure upon a finding by the court that the property has been abandoned. There is no provision in § 846.102 regarding the waiver of a deficiency judgment, and the Bank asked for a deficiency judgment in the first action. The court in the first action found the property was abandoned and therefore set the date of sale two months from the entry of judgment. There is no indication in the language of § 846.102 that the legislature intended to address the same concerns the Glover court found the legislature intended to address in WlS. Stat. § 846.101, and Grimmer does not develop an argument to this effect.

¶ 28. Third, in this action the Bank does not invoke the six-month period of redemption under WlS. STAT. § 846.101 that is permissible only if there is an election to waive the deficiency judgment. Rather, the Bank asserts, the Marshall property is a commercial property, as was the Sun Prairie property, and it is proceeding under WlS. STAT. § 846.103(1). Section 846.103 governs foreclosures of commercial properties and multi-family residences and contains the same tradeoff as does § 846.101 and WlS. Stat. §846.10, although with proportionately shorter time periods: section 846.103(1) provides for a six-month period of redemption, which is shortened to three months in sub-sec. (2) if the creditor elects to waive the deficiency judgment. Therefore, even if we assume for purpose of argument that the Bank should not have the advantage of any period of redemption conditioned upon a waiver of a deficiency because it did not have to waive the deficiency judgment in order to obtain the two-month period of redemption under WlS. STAT. § 846.102 in the first action, the Bank is not asking for that: it is not requesting the shorter three-month redemption period in § 846.103(2) that is dependent upon the waiver of deficiency, but instead it is requesting the longer six-month period in § 846.103(1).

¶ 29. Glover does not support Grimmer's assertion that "[b]y obtaining a deficiency judgment, [the Bank] represented that all of the security pledged as collateral for the note had been exhausted and that, after exhausting all of the collateral, a deficiency remained," and there is no statutory basis for inferring such a representation. Nor does Glover support Grimmer's position that all mortgages relating to one debt must be foreclosed in one action before a deficiency judgment is obtained. That may be a desirable procedure, as Grimmer contends, but the legislature has not chosen to require that.

¶ 30. Finally* Grimmer contends the Bank will obtain a windfall by being able to foreclose on all the mortgages securing the debt until the deficiency judgment is satisfied. We do not agree. In no event will the Bank recover more than the amount previously found to be due on the note. Indeed, as the court in Glover recognized, it is a windfall to the mortgagor if the creditor cannot foreclose on a mortgage even though the debt which that mortgage secures has not been fully satisfied. Glover, 117 Wis. 2d at 697. It is for this very reason that equitable considerations support not applying the merger doctrine to preclude relying on the security for a debt. See Brenton State Bank, 440 N.W.2d at 585-86.

¶ 31. We conclude Glover does not support Grimmer's argument that WlS. Stat. §§ 846.10 and 846.101, or any other applicable statutes, prevent the Bank from foreclosing on this mortgage because it obtained a deficiency judgment in a prior action foreclosing on a different mortgage securing the same debt.

Claim Preclusion

¶ 32. Grimmer argues in general terms that claim preclusion bars this action, but does not distinguish between claim preclusion and merger. The doctrine of claim preclusion provides that a final judgment on the merits bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences. Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 233, 601 N.W.2d 627 (1999). Ordinarily a judgment is conclusive in all subsequent actions as to all matters which were litigated or might have been litigated in the former action when these three factors are present: (1) identity between the parties or their privies in the prior and present suits, (2) prior litigation resulted in a final judgment on the merits by a court with jurisdiction, and (3) identity of the causes of actions in the two suits. Id. at 233-34.

¶ 33. The parties in this action — Marshall Development Company, Grimmer, and others who are alleged to have an interest in the Marshall property — were not parties in the first action, and none of the parties in that action are parties in this action. The cause of action in this case is foreclosure of the Marshall mortgage, and the cause of action in the first case was foreclosure of the Sun Prairie mortgage combined with an action on the note. The cause of action to foreclose the Marshall mortgage is distinct from the cause of action to foreclose the Sun Prairie mortgage: the fact that they secure the same debt does not create an identity of the cause of action. And, for the reasons we have already discussed, the cause of action on the note is distinct from an action to foreclose a mortgage securing the debt. Accordingly, the doctrine of claim preclusion does not bar this action.

CONCLUSION

¶ 34. In summary, we conclude the doctrine of merger does not bar this action because the Bank's cause of action to foreclose the Marshall mortgage has not "merged" with the deficiency judgment against Central States and Ludlow. Second, Glover does not suggest, and no statute provides, that a creditor may not foreclose on a mortgage because the creditor has, in a prior action, obtained a judgment of foreclosure on another mortgage securing the same debt and a deficiency judgment. Third, the doctrine of claim preclusion does not bar this suit because the defendants in this suit were not parties to the first suit and the cause of action to foreclose the Marshall mortgage is distinct from the causes of action in the first suit. Therefore, we conclude the trial court erred in dismissing the complaint, and we reverse.

By the Court. — Judgment reversed and cause remanded.

       The motion used the term "res judicata," which is also the term used by the trial court and by Grimmer in his brief on appeal. However, since "res judicata" is now known as "claim preclusion" in Wisconsin, we use the latter term. Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 232 n.25, 601 N.W.2d 627 (1999).

       The Wisconsin Bankers Association has filed a brief as amicus curiae, also requesting that we reverse the trial court.

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

       Because we may affirm a trial court's decision on a different legal basis than that relied on by the trial court, see State v. Patricia A.M., 176 Wis. 2d 542, 549, 500 N.W.2d 289 (1993), we examine all the grounds asserted by Grimmer, even though the trial court ruled only on merger.

       In Restatement (Second) op Judgments, the term "res judicata" is used in a broad sense to include three concepts: "merger — the extinguishment of a claim in a judgment for plaintiff; bar — the extinguishment of a claim in a judgment for defendant; and issue preclusion — the effect of the determination of an issue in another action between the parties on the same claim... or a different claim_" RESTATEMENT ch. 3, intro. note (1982).

       In Glover v. Marine Bank, 117 Wis. 2d 684, 345 N.W.2d 449 (1984), there were two notes, rather than one as in this action, with mortgages on four parcels of real estate securing the debt due under one of the notes, and a mortgage on a fifth parcel securing the debt due under both notes.

       The statute in effect at the relevant time was Wis. Stat. § 816.101, subsequently renumbered to Wis. Stat. § 846.101. We will refer to the statute with its current number. Section 846.101 provides in part:
      (1) If the mortgagor has agreed in writing at the time of the execution of the mortgage to the provisions of this section, and the foreclosure action involves a one- to 4-family residence that is owner-occupied at the commencement of the action, a farm, a church or a tax-exempt charitable organization, the plaintiff in a foreclosure action of a mortgage 'on real estate of 20 acres or less, which mortgage is recorded subsequent to January 22, 1960, may elect by express allegation in the complaint to .waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged property and be entitled to all rents, issues and profits therefrom to the date of confirmation of the sale by the court.
      (2) When plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered therein nor separately rendered against any party who is personally liable for the debt secured by the mortgage and the sale of such mortgaged premises shall be made upon the expiration of 6 months from the date when such judgment is entered.
      In contrast to § 846.101, WlS. STAT. § 846.10 provides for a sale twelve months from the date of the entry of judgment for the same properties covered in- § 846.101 and provides for a deficiency judgment against those personally liable. See § 846.10(1) and (2).

       The two individuals were makers of one note and guarantors of the second note. Glover, 117 Wis. 2d at 688-89.

       Wisconsin Stat. § 846.103 provides in part:
      Foreclosures of commercial properties and. multifamily residences. (1) No foreclosure sale involving real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization may be held until the expiration of 6 months from the date when judgment is entered except a sale under sub. (2).
      (2) If the mortgagor of real property other than a one- to 4-family residence that is owner-occupied at the commencement of the foreclosure action, a farm, a church or a tax-exempt nonprofit charitable organization has agreed in writing at the time of the execution of the mortgage to the provisions of this section, the plaintiff in a foreclosure action of a mortgage, which mortgage is recorded subsequent to May 12,1978, may elect by express allegation in the complaint to waive judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage, and to consent that the mortgagor, unless he or she abandons the property, may remain in possession of the mortgaged property and be entitled to all rents, issues and profits therefrom to the date of confirmation of the sale by the court. When the plaintiff so elects, judgment shall be entered as provided in this chapter, except that no judgment for deficiency may be ordered nor separately rendered against any party who is personally liable for the debt secured by the mortgage and the sale of the mortgaged premises shall be made upon the expiration of 3 months from the date when such judgment is entered.

       Since the Bank makes this argument in reply to Grimmer's argument that WlS. STAT. § 846.101, as construed by the court in Glover, does not permit this action, we do not have a reply from Grimmer to this assertion. We note the complaint asks for a sale within six months of the judgment without specifying the statute. However, in his counterclaim, Grimmer requests "(¡judgment of foreclosure and sale of the mortgaged real estate as provided by Section 846.103(1) of the Wisconsin Statutes which requires a six (6) month period of redemption." Therefore, it is undisputed on this record that the Bank is proceeding under WlS. Stat. § 846.103 rather than § 846.101.

       This is in contrast to states which have enacted "security first" statutes, which require the creditor to exhaust all security before obtaining a deficiency judgment. See, e.g., In re Sunnymead Shopping Ctr. Co., 178 B.R. 809, 815 (9th Cir. 1995) (discussing California statute).

       To the extent Grimmer is arguing that Glover, 117 Wis. 2d at 693-94, supports his merger argument — that the debt the Marshall mortgage secures was extinguished by the deficiency judgment even though the judgment has not been satisfied — we disagree. The reasoning of the Glover court that the creditor could not obtain a deficiency judgment in the action to foreclose on the remaining mortgages is based not on the doctrine of merger, but on the court's construction of Wis. Stat. §§ 846.101 and 846.10, as we have explained.