text:
    Town of Windsor and Town of Burke, Plaintiffs-Respondents, Walgreen Co., Meyer Holding, L.L.C., Duraform Lane Properties, L.L.C., Clack Building, L.L.C., Doug Karow, and Virginia Buhler, Intervening Plaintiffs-Respondents, v. Village of DeForest, Defendant-Appellant.
    Court of Appeals

      No. 02-0281.

      Submitted on briefs August 9, 2002.

    — Decided May 22, 2003.

    2003 WI App 114
    (Also reported in 666 N.W.2d 31.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Allen D. Reuter and Kim I. Moermond of Reuter, Whitish & Cole, S.C. of Madison.
    On behalf of the plaintiffs-respondents and intervening plaintiffs-respondents the cause was submitted on the brief of Lawrence E. Bechler and Matthew J. Fleming of Murphy & Desmond, S.C. of Madison; Timothy D. Fenner oí Axley Brynelson, LLP of Madison; Edward A. Hannan of Hannan & Associates, LLC of Brookfield; Constance L. Anderson of Merg & Anderson, S.C. of Madison; and Robert C. Procter of Axley Brynelson, LLP of Madison.
    Before Dykman, Roggensack and Deininger, JJ.
   ROGGENSACK, J.

¶ 1. The Village of DeForest appeals judgment on the pleadings granted to the Town of Windsor, the Town of Burke and intervening plaintiffs, declaring annexation ordinance 2001-10 void. DeForest ordinance 2001-10 purported to repeal an annexation ordinance enacted two months prior, ordinance 2000-69, and to re-annex largely the same territory as previously annexed. The circuit court held that ordinance 2001-10 was void because DeForest did not comply with the statutory requirements for changing municipal boundaries found in Wis. Stat. ch. 66. We agree that judgment on the pleadings was proper and conclude that the attempted repeal of annexing ordinance 2000-69 by enacting a correcting annexing ordinance is invalid because it conflicts with the procedures set out in Wis. Stat. § 66.0217 (2001-02). Accordingly, because the power to annex land is purely statutory and DeForest failed to comply with the statutory directive when it enacted ordinance 2001-10, we affirm the circuit court's judgment setting aside annexation ordinance 2001-10.

BACKGROUND

¶ 2. On December 18, 2000, the Village of DeForest enacted annexation ordinance 2000-69 to annex approximately 2100 acres of land located partly in the Town of Windsor and partly in the Town of Burke. Shortly thereafter, Windsor and Burke filed a complaint contesting the validity of the annexation. Two weeks later, the original promoters of ordinance 2000-69, Capitol Warehousing Corporation and CapWin 19, LLC, published in the DeForest Times-Tribune a "Notice of Intent" to circulate an annexation petition accompanied by a legal description of the property to be annexed. The territory identified by the notice of intent included the same 2100 acres annexed by ordinance 2000-69 plus an additional 100 acres of land. Capitol Warehousing and CapWin 19 filed the annexation petition with DeForest, and on February 12, 2001, DeForest enacted annexation ordinance 2001-10, that purported to repeal ordinance 2000-69 and re-annex the 2100 acres earlier annexed, plus an additional one hundred acres.

¶ 3. Windsor and Burke then filed a second action against DeForest, this time challenging the validity of ordinance 2001-10. The two cases were consolidated for purposes of discovery and pretrial motions. Windsor and Burke moved for judgment on the pleadings with regard to ordinance 2001-10, alleging that the ordinance was void as a matter of law. The circuit court granted their motion. DeForest appeals.

DISCUSSION

Standard of Review.

¶ 4. Whether judgment on the pleadings should be granted is a question of law that we review de novo. Freedom from Religion Found., Inc. v. Thompson, 164 Wis. 2d 736, 741, 476 N.W.2d 318, 320 (Ct. App. 1991). The construction of a statute and its application to undisputed facts also present questions of law that we review without deference to the circuit court. Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315, 317 (Ct. App. 1997).

Judgment on the Pleadings.

¶ 5. Judgment on the pleadings is proper only if there are no genuine issues of material fact. See Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 984, 473 N.W.2d 506, 510 (Ct. App. 1991). It is essentially summary judgment, minus affidavits and other supporting documents, where we apply the first two steps of summary judgment methodology. Schuster v. Altenberg, 144 Wis. 2d 223, 228, 424 N.W.2d 159, 161 (1988) (citation omitted). We first examine the complaint to determine whether it states a claim. Id. We then turn to the responsive pleadings to ascertain whether a material factual issue exists. Id. If the complaint is sufficient to state a claim and the responsive pleadings raise no material issues of fact, judgment on the pleadings may be appropriate.

¶ 6. DeForest argues that the circuit court erred by granting judgment on the pleadings because a material fact remained in dispute. We disagree. Here, the complaint states a claim that ordinance 2001-10 was not validly enacted due in part to the territory the ordinance sought to annex, and DeForest admits that ordinance 2001-10 affects all of the land annexed by the first ordinance. While there are other facts that the pleadings show are in dispute, their resolution does not affect our task here — to decide the validity of annexing ordinance 2001-10.

¶ 7. Furthermore, while it is true, as DeForest contends, that when judgment on the pleadings was granted, the status of ordinance 2000-69 had been challenged and remained undecided. This prospect alone, however, does not create a material issue of fact for purposes of judgment on the pleadings regarding whether ordinance 2001-10 could effect annexation of the territory described in both ordinances. Wisconsin Stat. § 66.0217(8) (c) provides that an "annexation is effective upon enactment of the annexation ordinance." And, it is well settled that an annexation ordinance continues in effect until declared invalid by a court. KW Holdings, LLC v. Town of Windsor, 2003 WI App 9, ¶ 22, 259 Wis. 2d 357, 656 N.W.2d 752; see also State ex rel. City of Madison v. Village of Monona, 11 Wis. 2d 93, 96, 104 N.W.2d 158, 160 (1960) ("An annexation ordinance, which at most is voidable and not void, continues in effect until declared invalid by proper court determination."). Therefore, we need not address whether Windsor and Burke's challenges to ordinance 2000-69 are valid, and we move to the validity of annexation ordinance 2001-10.

Annexation Ordinances.

¶ 8. Annexation proceedings are purely statutory. City of Madison v. Town of Blooming Grove, 14 Wis. 2d 143, 144, 109 N.W.2d 682, 683 (1961). A municipal corporation has no power to extend its boundaries other than as provided for by legislative enactment or constitutional provision. Town of Madison v. City of Madison, 269 Wis. 609, 615, 70 N.W.2d 249, 252 (1955); Town of Greenfield v. City of Milwaukee, 272 Wis. 610, 611-12, 76 N.W.2d 320, 321 (1956) ("The power granted by the legislature to municipalities to extend their boundaries must be exercised in strict conformity with the statute conferring it."). Wisconsin Stat. ch. 66 prescribes the procedures for annexation. Therefore, whether ordinance 2001-10 is valid turns in part on the statutory requirements for annexation set out in ch. 66. See Town of Wauwatosa v. City of Milwaukee, 266 Wis. 59, 64, 62 N.W.2d 718, 720 (1954).

¶ 9. The purpose of all statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506, 509 (1997). If the words of the statute convey legislative intent, that ends our inquiry. Kelley Co., Inc. v. Marquardt, 172 Wis. 2d 234, 247, 493 N.W.2d 68, 74 (1992). We will not look beyond the plain language of a statute to search for other meanings; we will simply apply the language to the facts at hand. Id.

¶ 10. Wisconsin Stat. § 66.0217 details the legislative scheme for direct annexation, which is what DeForest attempted, whereby land is detached from a town and annexed to a city or village. It initiates with the publishing of a notice of intent to circulate an annexation petition in the territory proposed for annexation. Section 66.0217(4). Under § 66.0217(4)(a), the notice of proposed annexation must contain:

2. A legal description of the territory proposed to be annexed and a copy of a scale map.
3. The name of the city or village to which the annexation is proposed.
4. The name of the town or towns from which the territory is proposed to be detached.

Within six months of the publication of the notice, a petition for direct annexation must be filed with the city or village clerk. Section 66.0217(5). The petition must also "contain a legal description of the territory proposed to be annexed and have attached a scale map." Id. Finally, an ordinance annexing the territory described in the petition may be "enacted by a two-thirds vote of the elected members of the governing body . . .." Section 66.0217(8). The annexation is effective upon enactment of the annexation ordinance. Id.

¶ 11. Windsor and Burke argue that annexing ordinance 2001-10 is void because DeForest failed to meet the requirements outlined by Wis. Stat. § 66.0217 prior to enacting the ordinance. Specifically, they argue that because ordinance 2000-69's "effective date" was December 18, 2000, whereon 2100 acres of land in Windsor and Burke were annexed to DeForest, all but 100 acres of the land purportedly annexed by ordinance 2001-10 on February 12 was, "by law," already within DeForest. Accordingly, Windsor and Burke argue that DeForest's method of enacting ordinance 2001-10 conflicts with the unambiguous legislative intent regarding the effect of enacting an annexation ordinance. We agree.

¶ 12. It is unequivocal that an annexation ordinance is effective upon enactment and is presumed valid until declared invalid by a court. See Wis. Stat. § 66.0217(8); KW Holdings, 259 Wis. 2d 357, ¶ 22. The practical implications of § 66.0217(8) are myriad. However, ch. 66 is silent with regard to a municipality's authority to "seasonably correct" a mistake in an annexation ordinance by enacting a correcting ordinance. Important to our analysis is the legal presumption that once an annexation ordinance has been passed, the annexed territory lies "within" the municipality to which it is annexed. See Town of Fond du Lac v. City of Fond Du Lac, 22 Wis. 2d 525, 529, 126 N.W.2d 206, 209 (1964).

¶ 13. Applying this presumption to the circumstances presented demonstrates that DeForest's attempt at annexation by enacting ordinance 2001-10 conflicts with the statutorily required procedure and therefore did not affect an annexation of the territory described. First, the legal description of the territory necessarily included 2100 acres that was presumptively within DeForest. Only territory outside of the municipality enacting the ordinance is eligible for annexation. See Wis. Stat. §§ 66.0217(2) and (4). Second, ordinance 2001-10 by its terms "detaches" from Windsor and Burke territory that was detached by the first ordinance on December 19. See § 66.0217(8).

¶ 14. Third, our holding is consistent with statutory provisions regarding the right to contest the validity of an annexation. Wisconsin Stat. § 66.0217(11) authorizes an action contesting annexation on any grounds, whether procedural or jurisdictional. Therefore, because annexation is purely statutory, the statute grants the right to enforce strict compliance with the required annexation procedures. Town of Blooming Grove v. City of Madison, 4 Wis. 2d 447, 452, 90 N.W.2d 573, 576 (1958). However, the action must commence within ninety days after the enactment of the annexation ordinance, Wis. Stat. § 893.73(2), and we have previously held that "those who contest the validity of an annexation," must also strictly comply with this statutory directive. See Town of Burke v. City of Madison, 225 Wis. 2d 615, 626, 593 N.W.2d 822, 826 (Ct. App. 1999).

¶ 15. To permit DeForest to correct mistakes in its annexation ordinance by re-enacting correcting ordinances would impinge upon Windsor and Burke's right to contest the validity of the annexation ordinance in a timely fashion. See Wis. Stat. § 66.0217(11). By statute, any such action must be commenced within ninety days of the passage of the ordinance. Wis. Stat. § 893.73(2). However, if DeForest could enact correcting ordinances, it could annex the property with the ordinance first in place, while successfully preventing a challenge to the validity of the annexation due to the continuing passage of new ordinances affecting the same territory. This is so because as a practical matter, strict compliance with § 893.73(2) turns on knowing when the ninety-day window begins. In short, until ordinance 2000-69 is invalidated by a method contemplated by the statutes, for example by court order, detachment proceedings, settlement or cooperative plan, Wis. Stat. §§ 66.0217(11), 66.0227, 66.0225 and 66.0307, no other annexation proceeding can be effective on the same territory. Cf. City of Madison, 14 Wis. 2d at 145, 109 N.W.2d at 683 ("To complete annexation, an annexation ordinance must be adopted in compliance with sec. [66.0217]."). Therefore, we agree with the circuit court that under the unambiguous statutory scheme set out by § 66.0217, DeForest may not repeal an annexing ordinance already in effect by enacting a correcting ordinance.

¶ 16. DeForest argues against this reasoning by pointing out that "[t]he general rule in annexation law permits amendment, repeal and reenactment of annexation ordinances to correct for mistakes" after the effective date. To shore up its argument, DeForest cites Zweifel v. City of Milwaukee, 188 Wis. 358, 206 N.W. 215 (1925). In Zweifel, the Milwaukee City Council annexed territory to the City of Milwaukee including territory within the City of North Milwaukee, which was contrary to established law. Id. at 360-61, 206 N.W at 216. Approximately one year later, Milwaukee repealed the "unlawful" ordinance and four months later, adopted a new ordinance that re-annexed the same territory except that portion in North Milwaukee. Id. at 361-62, 206 N.W.2d at 216. The court upheld the second ordinance as valid. From this, DeForest argues that under Zweifel, there exists a common law rule that permits a village to repeal and reenact an annexation ordinance absent any authorizing statutory provision. We disagree.

¶ 17. As we have explained above, a common law rule authorizing a city or village to alter its boundaries by repealing an ordinance is contrary to the well-settled rule that annexation proceedings are purely statutory. City of Madison, 14 Wis. 2d at 144, 109 N.W.2d at 683; Town of Madison, 269 Wis. at 615, 70 N.W.2d at 252 ("A municipal corporation has no power to extend its boundaries otherwise than as provided for by legislative enactment or constitutional provision."). However, to the extent Zweifel may imply that the repeal and reenactment of an annexation ordinance is proper, we conclude that the case does not apply to Wisconsin's current annexation laws.

¶ 18. Wisconsin passed its first general annexation statute in 1889. Laws of 1889, ch. 326, §§ 1-2, 17-21. After World War II, rapid population growth created many problems for local governments and as rural areas became more urban, cities and villages used municipal annexations to further expansion, increase their tax base and plan growth. Joel J. Rabin, Changes in Wisconsin Annexation Proceedings and Remedies, 1961 Wis. L. Rev. 123, 123. The annexation statutes proved inadequate to deal with their increased use and often led to bitter, long-drawn-out contests in the courts. Town of Fond du Lac, 22 Wis. 2d at 531, 126 N.W2d at 210. Consequently, in 1957, the legislature substantially revised and rewrote Wisconsin's annexation laws and enacted new uniform laws that provided two methods of annexing territory to municipalities, direct petition and referendum. Laws of 1957, ch. 676, § 3. The procedure for direct annexation is currently codified as Wis. Stat. § 66.0217, as discussed above.

¶ 19. The new legislation made numerous changes to the old laws, two that are germane to our analysis here. The legislature changed the effective date for attachment or detachment of territory from ninety days after passage to the date of enactment. Laws of 1957, ch. 676, § 2; Wis. Stat. § 66.021(7)(c) (1957). It also provided that a contest to the validity of an annexation could be brought on any grounds, not just the limited grounds earlier specified, but that such a contest must be brought within sixty days from the date of enactment. See Wis. Stat. § 66.021(10)(a) (1957); see also Town of Fond du Lac, 22 Wis. 2d at 531, 126 N.W.2d at 210. Because annexation proceedings are purely statutory, it is under the "new" procedures for annexation, currently set out in the statutes, that we consider the validity of ordinance 2001-10. Additionally, we presume the legislature revised Wisconsin's annexation laws with full knowledge of the existing condition of the law, Town of Madison, 269 Wis. at 614, 70 N.W.2d at 252, and purposefully enacted a comprehensive statutory scheme for annexation that does not authorize the repeal and reenactment of annexations by ordinance. Because DeForest cites no authority after 1957 to suggest otherwise, and because its repeal and reenactment of an annexing ordinance plainly conflict with the statutory scheme for direct annexation adopted by the legislature, we reject DeForest's argument that Wisconsin case law permits a municipality to repeal and reenact an annexation ordinance that corrects for mistakes in an earlier adopted annexation ordinance.

CONCLUSION

¶ 20. We conclude that judgment on the pleadings was proper and that the repeal of an ordinance already in effect by enacting a correcting ordinance conflicts with the annexation procedures set out in Wis. Stat. § 66.0217. Accordingly, because the power to annex land is purely statutory and DeForest failed to comply with the statutory directive when it enacted ordinance 2001-10, we affirm the circuit court's judgment setting aside ordinance 2001-10.

By the Court. — Judgment affirmed.

       Although intervening plaintiffs, Walgreen Co., Meyer Holding, LLC, Duraform Lane Properties, LLC, Clack Building, LLC, Doug Karow and Virginia Buhler, are parties to this action, we shall refer to them in this opinion, collectively, as Windsor and Burke, unless the context requires otherwise.

       All further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Wisconsin Stat. ch. 66 was recodified and reorganized by 1999 Wis. Act 150, that renumbered Wis. Stat. § 66.021 (1997-98) as Wis. Stat. § 66.0217.

       Windsor and Burke argue in the alternative that ordinance 2001-10 is void because it violates the common law rule of prior precedence. Because we conclude that DeForest's method of enacting ordinance 2001-10 conflicts with the annexation procedures set out in Wis. Stat. ch. 66, we do not consider the issue of prior precedence.

       No party asks us to examine the territory subject to ordinance 2001-10 as anything other than a single unit.

       For example, the annexing municipality must immediately file a certified copy of the ordinance with the secretary of state and any utility companies serving the area, Wis. Stat. § 66.0217(9), and record the ordinance with the register of deeds and file a signed copy of the ordinance with any affected school district. Id. Additionally, the ordinance is used to make recommendations for adjustments to entitlements under the federal revenue sharing program and distribution of funds under ch. 79. Id. The adoption of an ordinance forces the adjustment of assets and liabilities between the town and annexing municipality. Wis. Stat. § 66.0235. Finally, general property taxes are paid to the annexing municipality for the portion of the calendar year the territory is located in the "new" territory. See § 66.0235(13).

       The sixty-day window to bring a challenge to annexation was later enlarged to ninety days. Wis. Stat. §§ 66.0217(11) and 893.73(2).

       DeForest cites a string of cases decided prior to 1957 to support its position that a city or village may repeal an ordinance after its "effective date." For example, Roehrborn v. City of Ladysmith, 175 Wis. 394, 185 N.W. 170 (1921). We note first that the supreme court substantially overruled Roehrborn
        in State ex rel. Thompson v. Eggen, 206 Wis. 651, 658, 238 N.W 404, 406 (1932). However, because neither Roehrborn nor the other cases relied on by DeForest directly address the authority of a municipality to repeal and reenact an annexation ordinance and because they are additionally distinguishable on the same basis as Zweifel v. City of Milwaukee, 188 Wis. 358, 206 N.W. 215 (1925), we do not address them in this opinion.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bryan Hoover, Defendant-Appellant.

    Court of Appeals

      No. 02-1687-CR.

      Submitted on briefs March 26, 2003.—

      Decided May 28, 2003.

    2003 WI App 117
    (Also reported in 666 N.W.2d 74.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Glenn L. Cushing, assistant state public defender, Madison.
    . On behalf of the plaintiff-respondent, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.

       Petition to review denied 8-13-03.

   ANDERSON, J.

¶ 1. Bryan Hoover appeals a judgment of the trial court convicting him of first-degree intentional homicide, party to a crime, contrary to Wis. Stat. §§ 940.01(1) and 939.05, and conspiracy to hide a corpse contrary to Wis. Stat. §§ 940.11(2) and 939.31 (2001-02). He also appeals the trial court order denying him postconviction relief. Hoover argues that his constitutional right to confront and cross-examine witnesses testifying against him was violated by the trial court's rulings and/or trial counsel's deficient performance or confusion over what questioning was permissible. He also argues that the trial court deprived him of his due process right to a fair trial and unconstitutionally relieved the State of its burden of proof by substantially modifying the pattern jury instruction on party to a crime liability. With both arguments, we disagree. Accordingly, we affirm.

Background

¶ 2. At trial, several witnesses testified against Hoover, including Lyda Antia Morris (Antia) and her husband Richard Morris (Morris). The following evidence was presented. Hoover, Antia and Morris were involved in the murder of Frederick Jones and the subsequent conspiracy to conceal Jones's corpse on November 30 and December 1, 1995. Antia lived with Morris and during that time Hoover was staying with them. On November 30, the three decided to beat up Jones because he had allegedly sold Morris bad cocaine. The three tried to contact Jones, who eventually came over to the apartment.

¶ 3. After Jones's arrival at the apartment, Hoover and Morris began to beat him up. At some point, Morris put Jones in a bear hug and at some point, Hoover hit Jones in the head with a golf club. After Jones was dead, Morris removed six condoms, $200 and a .357 gun from his body. The three contacted a friend, Tywon Knight, because he had a car and they wanted his help in disposing of Jones's body. Morris and Hoover then wrapped the body in a blanket and, with the help of Knight, put the body into the trunk of Knight's car.

¶ 4. Antia, Hoover and Morris dropped Knight off at a relative's apartment, but kept Knight's car in order to drive Jones's body to Chicago. In Chicago, they purchased lighter fluid using the money they had stolen from Jones. It was approximately 2:00 a.m. when they drove to the rear of an abandoned school, parked the car and removed Jones's body from the trunk. Morris opened the blanket and squirted lighter fluid onto Jones's body and onto the blanket. Morris then lit the body on fire. Thereafter, the three drove to a nearby alley and watched Jones's body burn.

¶ 5. On December 1, 1995, pathologist Lary Simms, Deputy Medical Examiner in Cook County, Chicago at that time, examined Jones's body. Simms testified to two causes of death: First, he noted cranial cerebral injuries consisting of "sharp force wounds" on Jones's forehead, which fractured his skull and drove the bone of the skull into the brain causing damage to the brain. He stated that these injuries were "definitely consistent" with being caused by an iron golf club and that these injuries "in and of [themselves] would be sufficient" to cause death. Second, he stated that the hyoid bone had been fractured from manual strangulation, which would also have been sufficient to cause death.

Discussion

¶ 6. Right of Confrontation. Hoover contends that the trial court's rulings and/or his defense counsel's deficient performance or confusion violated his constitutional right to confront and cross-examine witnesses testifying against him. A Wisconsin criminal defendant's right to confront witnesses is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Wisconsin Constitution. The confrontation rights under both constitutions are the same. State v. Burns, 112 Wis. 2d 131, 144, 332 N.W.2d 757 (1983). The right of confrontation includes the right to cross-examine adverse witnesses to expose potential bias. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). Although a court may not prohibit all inquiry into the possibility of bias, reasonable limitation on "interrogation that is repetitive or only marginally relevant" is appropriate. Id. at 679. The fundamental inquiry in deciding whether the right of confrontation was violated is whether the defendant had the opportunity for effective cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985); State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990).

¶ 7. Generally, the decision whether to admit or exclude evidence is within the circuit court's discretion. State v. Williams, 2002 WI 58, ¶ 7, 253 Wis. 2d 99, 644 N.W.2d 919, reconsideration denied, 2002 WI 121, 257 Wis. 2d 123, 653 N.W.2d 894 (Wis. Oct. 24, 2002) (No. 00-3065-CR). However, this discretion may not be exercised until the court has accommodated the defendant's right of confrontation. See State v. George, 2002 WI 50, ¶ 16 n.17, 252 Wis. 2d 499, 643 N.W.2d 777. Whether the limitation of cross-examination violates the defendant's right of confrontation is a question of law that we review de novo. See Williams, 253 Wis. 2d 99, ¶ 7.

¶ 8. When considering an ineffective assistance of counsel claim, we review the circuit court's findings of fact regarding counsel's conduct under a clearly erroneous standard. State v. Swinson, 2003 WI App 45, ¶ 57, 261 Wis. 2d 633, 660 N.W.2d 12. Whether those facts constitute deficient performance and prejudice are questions of law that we review independently. Id.

¶ 9. The test for ineffective assistance of counsel has two prongs: (1) a demonstration that counsel's performance was deficient, and (2) a demonstration that the deficient performance prejudiced the defendant. Id. at ¶ 58; Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant must establish that his or her counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. The defendant must overcome a strong presumption that his or her counsel acted reasonably within professional norms. Swinson, 261 Wis. 2d 633, ¶ 58. To satisfy the prejudice prong, the defendant must show that counsel's errors were serious enough to render the resulting conviction unreliable. Id.; Strickland, 466 U.S. at 687. We need not address both components of the test if the defendant fails to make a sufficient showing on one of them. Id.

¶ 10. Hoover argues that his constitutional right to confront and cross-examine witnesses testifying against him was violated by the trial court's rulings, and/or trial counsel's deficient performance or confusion over what questioning was permissible. Specifically, Hoover contends a violation of his constitutional right to confront and cross-examine Maurice Anderson-El, who testified that Hoover told of his involvement in Jones's homicide while Anderson-El and Hoover were inmates in the Kenosha County Jail. We hold that Hoover's constitutional right to confront and cross-examine Anderson-El was not violated by the trial court's rulings, nor was it violated by trial counsel's deficient performance or confusion. Our review of the record reveals that the trial court accommodated Hoover's right of confrontation and Hoover has not shown that his counsel's performance was deficient. Additionally, Hoover has not persuaded us that a new trial is warranted in the interests of justice due to confusion on his counsel's part.

¶ 11. Before Hoover's trial, Anderson-El's plea hearing took place and the hearing transcript reveals that the State did not give Anderson-El a deal in exchange for his testimony. Additionally, there was no mention of his cooperation, his statement or his potential testimony. In his appellate brief, Hoover concedes "it is undisputed that Anderson-El was not directly offered his plea bargain in exchange for either his information or his testimony, and that he came forward with his information on his own."

¶ 12. Prior to Anderson-El's testimony, the trial court held several discussions with defense counsel and the prosecutor outside the presence of the jury concerning the appropriate scope of cross-examination. Defense counsel argued that he should be able to question Anderson-El about what defense counsel characterized as "the break" Anderson-El received in sentencing as a result of his statement.

¶ 13. The trial court disagreed, expressing concern that questions regarding Anderson-El's sentence could confuse the jury into believing that the court had somehow rewarded Anderson-El for his potential testimony. Specifically, the court responded: "The break has to come from the prosecutor, not from the Court. The considerations the Court applies are not a quid pro quo." The court explicitly disallowed questions concerning the sentence imposed to avoid confusing the jury into believing that the court had participated in plea negotiations and gave Anderson-El a "break" in his sentence in exchange for his testimony.

¶ 14. However, the court did not prohibit questions concerning the terms of the plea agreement. Rather, the court suggested that questions concerning the plea agreement would be appropriate. The court authorized defense counsel to question Anderson-El about his motivation for testifying and whether Anderson-El thought he might get something out of the State in the way of a reduced sentence recommendation, even though it was not part of any specific deal. The court stated:

Court Judges do not participate in sentence negotiations. So to the extent that any of your questioning would imply that, that certainly would be inappropriate. What [Anderson-El's] expectations from the State recommendations are I think you can go into. If he was expecting because of his cooperation to get a break from the State, that's fine. But I don't want it implied that because of his cooperation he was anticipating a break from the Court.
[T]here's a difference between a sentencing consideration made by a Court and in effect a contract made between the State and a defendant for the State being committed to a position. And if he thinks that because of the State's position he receives a benefit, that's fine. That I think you can go into. The State promised to make a recommendation ofx number of years in part due to my cooperation, is fair game. But to imply that the Court participated in that.... (Emphasis added.)

Defense counsel then asked for and received further clarification:

[Defense Counsel] Am I going to be able to - - if he says; I wasn't expecting a break, or I was expecting a break but I didn't get a break, am I able to then explain to the jury what kind of sentence he received?
[Court] No. Because the sentence is what the Court imposes. The recommendation is the break. And that's the distinction I drew yesterday and that's the distinction I make today.
[Defense Counsel] All right.
[Court] What the benefit of the bargain is, is from the District Attorney, not from the Court.
[Defense Counsel] All right.

¶ 15. In addition, immediately before Anderson-El's testimony, the court reiterated to defense counsel that it was not preventing cross-examination regarding Anderson-El's perception of what benefit he might receive for his testimony:

[I]f you want to ask him ... do you think that if you testified today you may, although you're not — the State hasn't agreed to give you anything, you may get some benefit, you can ask him that.

¶ 16. With this clarification given, the State called Anderson-El, who testified that Hoover admitted to him his involvement in Jones's homicide while he and Hoover were inmates in the Kenosha County Jail. During Anderson-El's cross-examination testimony, the only question to which the State objected was whether Anderson-El thought the charges were "very serious." The court sustained the objection without explanation. Defense counsel followed up this question by asking Anderson-El whether he was concerned about the charges, to which there was no objection.

¶ 17. The trial transcript reveals a number of added ways that Anderson-El's potential bias was put before the jury: (1) the jury was informed that Anderson-El had ten prior convictions; (2) Anderson-El testified that when he came forward with his statement, he was in the Kenosha County Jail facing charges; (3) at defense counsel's request, the court took judicial notice that the date of Anderson-El's initial appearance on his criminal charge coincided with the date he said that Hoover made admissions to him; (4) defense counsel cross-examined Anderson-El about jailhouse snitches and the fact that snitches generally hope to get something for their testimony; and (5) defense counsel questioned Anderson-El about his personal motivation for coming forward:

[Defense Counsel] Although you didn't have an agreement with the District Attorney's office you hoped that this would help you in terms of your predicament, that you were in prison; is that correct?
[Anderson-El] Well —
[Defense Counsel] Yes or no, sir.
[Anderson-El] No, sir.
[Defense Counsel] That motivation didn't come across you at all?
[Anderson-El] As I stated earlier, I wasn't concerned by the cases.
[Defense Counsel] So you were purely motivated by good intentions. Is that what you're saying, Mr. Anderson-El?
[Anderson-El] Yes.
[Defense Counsel] You expected no deal, you expected nothing in return for this information?
[Anderson-El] Well it was already established that we had no deal. So, you know, I mean —
[Defense Counsel] And nothing in the future?
[Anderson-El] No.

¶ 18. The trial court did not erroneously exercise its discretion or deprive Hoover of his constitutional right of confrontation. In State v. McCall, 202 Wis. 2d 29, 34-35, 44-45, 549 N.W.2d 418 (1996), the supreme court held that the circuit court did not misuse its discretion or deny the defendant his right of confrontation by prohibiting the defense from cross-examining a key State witness about the dismissal of three criminal charges that had been pending prior to the beginning of McCall's trial. The defense in McCall presented no evidence that there was any agreement between the witness and the State in regard to the witness's testimony or that the witness believed such an agreement existed. Id. at 40.

¶ 19. Accordingly, the supreme court held that the mere fact that the witness's pending criminal charges had been dismissed prior to the defendant's trial would not support a reasonable inference that the witness was testifying in accord with an agreement with the prosecution or even that he believed he may have been doing so. Id. at 38-40. The circuit court properly exercised its discretion by excluding speculative and irrelevant evidence that could confuse the issues and unfairly prejudice the jury. Id. at 44. The supreme court held that the evidence of the dismissal of pending charges against the witness was irrelevant, and therefore, its exclusion did not constitute a misuse of discretion; the. exclusion of irrelevant evidence does not violate the constitutional right to confrontation. Id. at 42.

¶ 20. The rationale of McCall is controlling here. In the absence of any sentencing-for-testimony agreement, it would be irrelevant to question Anderson-El about his sentence. Defense counsel was able to and, in fact, did question Anderson-El about his charges and whether he expected to get a benefit from testifying. However, eliciting information about the actual sentence imposed was not relevant to any incentives the prosecution may have given Anderson-El for testifying on behalf of the State. Moreover, testimony concerning the actual sentence imposed might confuse the jury into believing the court was a party to some unproven sentencing-for-testimony agreement. As in McCall, the record does not support such a speculative theory.

¶ 21. Again, the fundamental inquiry in deciding whether the right of confrontation was violated is whether the defendant had the opportunity for effective cross-examination. See Fensterer, 474 U.S. at 19-20; Pulizzano, 155 Wis. 2d at 645. Our examination of the record convinces this court that Hoover had the opportunity for effective cross-examination. The trial court aptly communicated its willingness to accommodate Hoover's right of confrontation. See George, 252 Wis. 2d 499, ¶ 16 n.17. We highlight examples of three such communications:

1. "What [Anderson-El's] expectations from the State recommendations are I think you can go into. If he was expecting because of his cooperation to get a break from the State, that's fine."
2. "And if he thinks that because of the State's position he receives a benefit, that's fine. That I think you can go into. The State promised to make a recommendation of x number of years in part due to my cooperation, is fair game."
3. "[I]f you want to ask him ... do you think that if you testified today you may, although you're not — the State hasn't agreed to give you anything, you may get some benefit, you can ask him that."

Having made known its intention to accomodate Hoover's right of confrontation, the court did not err in exercising its discretion to prohibit questions concerning the sentence imposed to avoid confusing the jury into believing that the court had participated in plea negotiations or somehow gave Anderson-El a "break" in his sentence in exchange for his testimony. See Williams, 253 Wis. 2d 99, ¶ 7 ("[A] circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review."). This limitation on cross-examination did not violate Hoover's right of confrontation. See id.

¶ 22. Moreover, during Anderson-El's cross-examination testimony, the only question to which the State objected was whether Anderson-El thought the charges were "very serious." And while the court sustained the objection without explanation, defense counsel was otherwise unhampered in his opportunity to delve into questions regarding Anderson-El's potential bias.

¶ 23. Thus, since we hold that the opportunity existed to confront Anderson-El, we move to whether Hoover has shown that his counsel was ineffective. He has not. Hoover has not established that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Swinson, 261 Wis. 2d 633, ¶ 58; Strickland, 466 U.S. at 687. He has not overcome the strong presumption that his counsel acted reasonably within professional norms. Id. The transcript establishes that defense counsel questioned Anderson-El about his personal motivation for coming forward:

[Defense Counsel] Although you didn't have an agreement with the District Attorney's office you hoped that this would help you in terms of your predicament, that you were in prison; is that correct?
[Anderson-El] Well —
[Defense Counsel] Yes or no, sir.
[Anderson-El] No, sir.
[Defense Counsel] That motivation didn't come across you at all?
[Anderson-El] As I stated earlier, I wasn't concerned by the cases.
[Defense Counsel] So you were purely motivated by good intentions. Is that what you're saying, Mr. Anderson-El?
[Anderson-El] Yes.
[Defense Counsel] You expected no deal, you expected nothing in return for this information?
[Anderson-El] Well it was already established that we had no deal. So, you know, I mean —
[Defense Counsel] And nothing in the future?
[Anderson-El] No.

We deem defense counsel's performance to be reasonably within professional norms and thus, need not address the prejudice prong of the ineffective assistance of counsel test because Hoover has failed to demonstrate that counsel's performance was deficient. See Swinson, 261 Wis. 2d 633, ¶ 58; Strickland, 466 U.S. at 687.

¶ 24. Finally, Hoover makes a cursory argument that a new trial is warranted in the interests of justice due to his counsel's confusion over what could or could not be pursued on cross-examination of Anderson-El. We disagree. Anderson-El's testimony was part of a nine-day jury trial. It was, for the most part, cumulative of other evidence presented, including evidence presented by the State's direct witnesses to the crime.

¶ 25. The final statements of Morris corroborated Anderson-El's testimony. Although Morris gave earlier contradictory statements, his final version and only signed statement agreed with Anderson-El's testimony. Morris gave statements to both the Kenosha police and the Chicago police that placed Hoover at the scene of the crime. Morris indicated that Hoover struck Jones with a golf club, that Hoover helped dispose of Jones's body by placing it in the trunk of a car, and that Hoover drove to Chicago, purchased lighter fluid and burned the body. Morris's trial testimony from his Illinois homicide conviction was read to the jury and it placed Hoover at the scene of the crime and stated that Hoover had hit Jones with a golf club.

¶ 26. Antia's testimony also placed Hoover at the scene of the crime. She stated that Hoover hit Jones with a golf club and that Hoover helped dispose of the body by burning it in Chicago.

¶ 27. The medical examiner testified that the sharp force wounds found on Jones's head were enough to cause death and were consistent with being inflicted by a golf club. Hoover's fingerprints were identified on the lighter fluid cans. Knight's statement, which was read to the jury, indicated that Hoover and Morris approached him on the night of the murder, showed him the body and threatened him in order to get help moving the body.

¶ 28. Thus, we are not moved to differ with the trial court's assessment that "the evidence that is on the record here is so overwhelming absent Anderson-El that the interest of justice does not require a new trial on this matter."

¶ 29. Due Process Right to a Fair Trial. Hoover's second claim is that the trial court unconstitutionally relieved the State of its burden of proof by substantially modifying the pattern jury instruction on party to a crime liability and thereby deprived him of his due process right to a fair trial. Whether a jury instruction violated a defendant's right to due process is a question of law subject to our de novo review. State v. Pettit, 171 Wis. 2d 627, 639, 492 N.W.2d 633 (Ct. App. 1992). In reviewing a claimed jury instruction error, we do not view the challenged words or phrases in isolation. Id. at '637. Rather, "in determining whether the instructions to the jury appropriately advised the jury of the applicable law, or whether any error in the instructions constitutes reversible error, [the supreme court] has recognized that the instructions must not be judged in isolation, but must be considered as a whole." State v. Ivy, 119 Wis. 2d 591, 603, 350 N.W.2d 622 (1984). Relief is not warranted, however, unless the court is "persuaded that the instructions, when viewed as a whole, misstated the law or misdirected the jury" in the manner asserted by the challenger to the instruction. Pettit, 171 Wis. 2d at 638; State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982). In evaluating instructions given to a jury, an error may be rendered harmless if other correct statements of law are contained in the instructions; however, "even if the error is not rendered harmless by other portions of the instructions, there is no reversible error unless it may reasonably be said that, had the error not been made, the verdict might probably have been different." Paulson, 106 Wis. 2d at 108 (citation omitted).

¶ 30. A trial court has broad discretion in instructing a jury but must exercise that discretion in order to fully and fairly inform the jury of the applicable rules of law. State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996). Whether a crime charged was a natural and probable consequence of the crime with which a defendant allegedly assisted is a factual issue for the jury. Ivy, 119 Wis. 2d at 601. Whether a jury instruction is appropriate, under the given facts of a case, is a legal issue subject to independent review. See Pettit, 171 Wis. 2d at 639.

¶ 31. The specific section of the jury instruction that Hoover takes issue with states:

A person who intentionally aids and abets the commission of a crime is also guilty of any other crime which is the natural and probable consequence of the intended crime. A crime is the natural and probable consequence of another crime if in the light of ordinary experience it was the result to be expected, not an extraordinary or surprising result. The probability that one crime would result from another should be judged by the facts and circumstances known to the defendant at the time the events occurred.

¶ 32. Hoover argues that the trial court's use of this modified version of Wis JI — Criminal 406 "violated [his] constitutional right to due process of law by failing to require a jury finding on essential elements of the theory of guilt embodied in Wis. Stat. § 939.05(2)(c), and by improperly relieving the state of [its] burden of proof as to those elements." Specifically Hoover asserts:

The instruction did not even identify what the intended crime or crimes were and relieved [the] state of its burden to prove beyond a reasonable doubt that Hoover aided and abetted the intended crime and that the charged crime was a natural and probable consequence of the intended crime.

He claims that the jury could not determine if the homicide was a natural and probable consequence of some other crime if the jury did not know what that other crime was.

¶ 33. First, we agree with the trial court that in the future it would be advisable to "elect to give a brief summary of [the intended crimes] rather than completely excising] them from 406." However, we also agree with the trial court that even if any error occurred, under all the circumstances of this case, there is no prejudice to Hoover for the manner in which the jury was instructed. The instruction for the charged crime was given properly as to the elements and the intended crime instruction was adequate to inform the jury.

¶ 34. Finally, we are persuaded by the rationale in United States v. Elizondo, 920 F.2d 1308, 1317 (7th Cir. 1990), where the Seventh Circuit held that any error in a conspiracy jury instruction is harmless if the government does not rely solely on that theory of criminal liability. The Elizondo court affirmed the conviction because alternative theories of direct and vicarious liability existed for affirming the substantive convictions despite the defective instruction. Id. Given this rationale, we consider it significant that like the prosecution in Elizondo, the prosecution here did not rely solely on the natural and probable consequence theory of liability — it also relied on a first-degree intentional homicide theory and an aiding and abetting theory.

¶ 35. As a final point, Hoover does not succeed on his claim that his counsel was ineffective for failing to object to the proposed instruction. We note that the trial court found that defense counsel did properly raise and preserve any objection to Wis JI — Criminal 406 and how it should be implemented. However, regardless of whether counsel properly objected or not, we hold that given our harmless error analysis, there is no reasonable probability that counsel's failure to object to the natural and probable consequences jury instruction affected the verdict.

¶ 36. Having thoroughly reviewed the extensive record before us and the relevant law, we hold that Hoover's constitutional right to confront and cross-examine Anderson-El was not violated by the trial court's rulings, nor was it violated by his defense counsel's deficient performance or confusion over what questioning was permissible. In addition, we hold that Hoover's due process right to a fair trial was not violated by the trial court's modification of the pattern jury instruction on party to a crime liability.

By the Court. — Judgment and order affirmed.

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

       The Sixth Amendment to the United States Constitution provides in part: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." The Sixth Amendment applies to the states by virtue of the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 406 (1965).

       Article I, section 7 provides in part: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face."

       At the postconviction motion hearing, the prosecutor explained that his objection was "based on the fact the defendant [was] not in a position to be able to characterize whether charges are serious or not."


author: Nettesheim, PJ.

text:
    Timothy A. Pachowitz, as Special Administrator of the Estate of Julie Lynn Pachowitz, Plaintiff-Respondent, v. Katherina R. LeDoux, Tess Corners Volunteer Fire Department and Continental Western Insurance Company, Defendants-Appellants, ABC Insurance Company, Defendant.
    Court of Appeals

      No. 02-2100.

      Submitted on briefs April 9, 2003.

    — Decided May 28, 2003.

    2003 WI App 120
    (Also reported in 666 N.W.2d 88.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Emile H. Banks, Jr. and Vicki L. Arrowood, of Emile Banks & Associates, LLC. of Milwaukee, and Thomas A. Ogorchock of Miller & Ogorchock of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Donald J. Mum and Michelle E. Martin, of Mum and Martin, S.C. of Waukesha.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 10-21-03.

   Nettesheim, PJ.

¶ 1. While employed by the Tess Corners Volunteer Fire Department as an emergency medical technician (EMT), Katherina R. LeDoux provided emergency medical attention to Julie Lynn Pachowitz. In this action, Pachowitz alleged that LeDoux invaded her privacy pursuant to Wis. Stat. § 895.50 (2001-02), by disclosing to a third party the reason that Pachowitz required medical attention. A jury found in favor of Pachowitz and awarded her $3000 in compensatory damages. Pursuant to the fee shifting provisions of the statute, the trial court awarded Pa-chowitz $30,460 in attorney fees.

¶ 2. LeDoux and Tess Corners Volunteer Fire Department, together with their insurer, Continental Western Insurance Company, appeal from the judgment. They argue that the trial court erred in (1) denying their postverdict motion to change the jury's finding that LeDoux had invaded Pachowitz's privacy; (2) setting Pachowitz's reasonable attorney fees at $30,460; (3) holding LeDoux's offer of judgment defective, and (4) holding Pachowitz's offer of settlement valid and therefore awarding Pachowitz double costs and interest pursuant to Wis. Stat. § 807.01(3) and (4).

¶ 3. We uphold the trial court's rulings denying the appellants' motion to change the jury's answer and setting Pachowitz's reasonable attorney fees at $30,460. We also affirm the trial court's rejection of LeDoux's offer of judgment. However, we reverse the trial court's ruling that Pachowitz's offer of settlement was valid. We hold that Pachowitz's offer of settlement was defective because it was a single offer made to multiple defendants whose interests were then adverse. We remand for the entry of judgment in conformity with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 4. LeDoux was a volunteer EMT for the Tess Corners Volunteer Fire Department. On April 21, 2000, she and three other members of the department responded to an emergency 911 call at the Pachowitz residence regarding an overdose or possible overdose.

¶ 5. Upon arriving at the Pachowitz residence, the medical team discovered Julie Pachowitz unresponsive and with poor vital signs. At her husband's request, Pachowitz was transported to Waukesha Memorial Hospital. After completing the EMT response, LeDoux returned home and later spoke to a friend, Sally Slo-comb, to discuss the fact that she had assisted in transporting Pachowitz to the hospital emergency room for a possible overdose.

¶ 6. Prior to the emergency EMT response, LeDoux had never met Pachowitz. However, about two weeks prior to the incident, LeDoux was socializing with a group of people including Slocomb, when Slo-comb and another woman spoke about Pachowitz and her medical condition. During this conversation, LeDoux learned that Slocomb worked with Pachowitz at West Allis Memorial Hospital. LeDoux also gained the impression that Slocomb and Pachowitz were very close friends.

¶ 7. LeDoux testified that she placed the telephone call to Slocomb after the EMT emergency response because she was concerned about Pachowitz and thought Slocomb could possibly be of assistance to Pachowitz. Following LeDoux's telephone call, Slocomb drove to West Allis Memorial Hospital where she revealed the EMT response to the Pachowitz home and discussed Pachowitz's situation with other staff.

¶ 8. On December 8, 2000, Pachowitz filed this action against the appellants alleging that LeDoux had defamed her and violated her privacy by publicizing information concerning her medical condition and making untrue statements indicating that she had attempted suicide. Pachowitz alleged that she had been and was continuing to undergo medical care due to bodily illness and that she had suffered a "reaction to medication" on April 21, 2000, when she was taken to Waukesha Memorial Hospital by LeDoux's EMT unit.

¶ 9. Tess Corners and Continental answered, raising an affirmative defense that LeDoux's communication to Slocomb was not made within the scope of her employment with Tess Corners. As a result of its position adverse to LeDoux's interests, Continental retained separate counsel for LeDoux. LeDoux's counsel then filed a separate answer on LeDoux's behalf and continued to represent LeDoux throughout all of the trial court proceedings.

¶ 10. Following her answer, LeDoux filed a motion to dismiss Pachowitz's action, contending that her statements to Slocomb did not satisfy the "publicity" element of an invasion of privacy claim under Wis. Stat. § 895.50(2)(c). LeDoux also argued that she had not acted recklessly or unreasonably in contacting Slocomb regarding Pachowitz's care. Because the parties referred to matters outside the pleadings, the trial court treated the motion as one for summary judgment. See Wis. Stat. § 802.06(3). The court rejected LeDoux's argument that her dissemination of information to only one person, Slocomb, did not satisfy the "publicity" element of an invasion of privacy claim as a matter of law. Instead the court held that whether the "publicity" element was satisfied required a full exploration at trial regarding the particular circumstances of the case and Slocomb's "character." The court similarly held that the reasonableness or recklessness of LeDoux's actions was an issue of fact for the jury.

¶ 11. Prior to the summary judgment proceedings, LeDoux had made a timely offer of judgment pursuant to Wis. Stat. § 807.01(1), offering to "settle all of the plaintiffs claims with regard to the above matter for a total of Five Thousand Dollars . .. together with statutory taxable costs and disbursements." Pachowitz did not accept LeDoux's offer. Instead, she later countered with her own offer of settlement pursuant to §807.01(3), offering "to settle this matter with the Defendants, Katherina LeDoux, Tess Corners Volunteer Fire Department, and Continental Western Insurance Company, for the sum of Twenty Five Thousand Dollars ... which includes statutory attorneys' fees as allowed by Wis. Stats. 895.50, together with taxable costs." The appellants did not accept Pachowitz's offer.

¶ 12. The matter proceeded to a jury trial. At the close of the evidence, Continental advised the trial court that it was abandoning its affirmative defense that it did not owe coverage to LeDoux. As a result, the special verdict did not include any coverage questions. Instead, the verdict was limited to Pachowitz's invasion of privacy claim. The jury returned a verdict answering "yes" to the following question: "Did Katherina LeDoux violate Julie Pachowitz's right of privacy by publicizing a matter concerning her private life, namely that she had been taken from her home to the hospital by emergency personnel because of a possible drug overdose?" The jury also awarded Pachowitz $3000 in compensatory damages.

¶ 13. On May 29, 2002, the appellants filed motions after verdict requesting that the jury's answer be changed from "yes" to "no." In support, the appellants renewed LeDoux's pretrial arguments that LeDoux's communication to Slocomb did not constitute "publicity" and that LeDoux's conduct was not reckless or unreasonable. The appellants additionally sought costs pursuant to Wis. Stat. § 807.01(1) based on their contention that the jury's damage award of $3000 was less favorable than LeDoux's $5000 offer of judgment.

¶ 14. Pachowitz countered with her own motion for judgment on the verdict and for her reasonable attorney fees in the amount of $30,460 under the fee shifting provisions of Wis. Stat. § 895.50(l)(c). In addition, Pachowitz sought double costs pursuant to Wis. Stat. § 807.01(3) and 12% interest on the judgment pursuant to § 807.01(4) based on her contention that the judgment, including her reasonable attorney fees, exceeded her $25,000 offer of settlement.

¶ 15. The trial court denied the appellants' motion to change the jury's answer, finding that the evidence supported the verdict. The court also found that the Pachowitz's requested attorney fees in the amount of $30,460 was reasonable and the court awarded those fees under the fee shifting provisions of Wis. Stat. § 895.50(l)(c). The court further held that LeDoux's offer of judgment was invalid because it did not include an allowance for Pachowitz's attorney fees. When measuring LeDoux's offer of judgment and Pachowitz's offer of settlement against the judgment, the trial court included Pachowitz's reasonable attorney fees in the judgment. Since Pachowitz's total recovery exceeded the offer of settlement, the court awarded Pachowitz double costs pursuant to Wis. Stat. § 807.01(3) and 12% interest pursuant to Wis. Stat. § 807.01(4). The court entered a final judgment in favor of Pachowitz in the amount of $37,909.86. LeDoux, Tess Corners and Continental appeal.

DISCUSSION

Invasion of Privacy

1. Publicity

¶ 16. The appellants first argue that Wis. Stat. § 895.50 does not apply in this case because LeDoux's statement to one person, Slocomb, was not sufficient as a matter of law to constitute the necessary element of "publicity." Pachowitz responds that whether LeDoux's actions were sufficient to constitute "publicity" was a question for the jury.

¶ 17. Invasion of privacy actions are governed by Wis. Stat. § 895.50, which provides in relevant part:

(1) The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:
(b) Compensatory damages based either on plaintiffs loss or defendant's unjust enrichment; and
(c) A reasonable amount for attorney fees.
(2) In this section, "invasion of privacy" means any of the following:
(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

¶ 18. In order to establish a cause of action for invasion of privacy under Wis. Stat. § 895.50(2)(c), a plaintiff must prove: (1) a public disclosure of facts regarding the plaintiff; (2) the facts disclosed are private facts; (3) the private matter made public is one which would be highly offensive to a reasonable person of ordinary sensibilities; and (4) the defendant acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter, or with actual knowledge that none existed. Zinda v. Louisiana Pac. Corp., 149 Wis. 2d 913, 929-30, 440 N.W.2d 548 (1989); "Publicity," for purposes of § 895.50, has been defined to mean that "the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Hillman v. Columbia County, 164 Wis. 2d 376, 394, 474 N.W.2d 913 (Ct. App. 1991) (citing Restatement (Second) of Torts § 652D, cmt. a (1977)).

¶ 19. The appellants rely on Zinda and Hillman in support of their argument that the disclosure of private information must be to more than one person in order to satisfy the "publicity" element of Wis. Stat. § 895.50(2)(c). In both Zinda and Hillman, the disclosure was made to numerous individuals. In Zinda, the court found that a plaintiff could establish a prima facie claim for invasion of privacy when the plaintiffs employer included in the company newsletter a statement that the plaintiff had been terminated from the company for falsification of his employment form. Zinda, 149 Wis. 2d at 918-19, 930. The company distributed 160 copies to its employees, which the court found to be a "substantial audience." Id. at 919, 930. In Hillman, the plaintiff, a former inmate, made an invasion of privacy claim against Columbia County and jail employees based on the dissemination of his medical history by jail employees to prison inmates and other jail employees. Hillman, 164 Wis. 2d at 384. Although the County argued that an audience of jail employees and inmates was "too limited" to satisfy the publicity element, the court found that oral communication among numerous jail employees and inmates is sufficient to constitute publicity under § 895.50(2)(c). Hillman, 164 Wis. 2d at 394-95.

% 20. The appellants distinguish the facts of this case from Zinda and Hillman by pointing out that LeDoux advised but one person, Slocomb, about the EMT call and that it was Slocomb, not LeDoux, who further publicized the information to the staff at West Allis Memorial Hospital. Based on LeDoux's disclosure to only one person, as opposed to the published statement in Zinda or the dissemination of private information to numerous people in Hillman, the appellants contend that LeDoux did not communicate Pachowitz's private information to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. See Hillman, 164 Wis. 2d at 394.

¶ 21. While LeDoux's disclosure did not rise to the level of those in Zinda or Hillman, we reject the appellants' assertion that a disclosure of private information to one person can never constitute "publicity." We do not read Zinda or Hillman to stand for the proposition that a single communication to a single person cannot ever, as a matter of law, constitute publicity. Nor are we persuaded that the use of the term "persons" as opposed to "person" in the jury instruction for invasion of privacy requires a disclosure to more than one person. See Wis JI — Civil 2550 (providing the plaintiff must establish that "facts were communicated [to] ... a sufficient number of persons to insure that the facts become a matter of public knowledge"). Instead, we agree with the trial court that the character and nature of the one person to whom the offending information was communicated, here Slocomb, was a matter that had to be probed at a full trial. As the trial court aptly stated, there was a genuine issue of material fact as to "the type and character of Sally Slocomb" because there was no evidence as to whether Slocomb was "the biggest gossip in Muskego and West Allis Hospital" or whether "she had the stiffest upper lip of anyone in the state."

¶ 22. The appellants contend that the trial court erred in considering anything but the number of people told. In support, they point to the many courts that have held that "publicity" requires disclosure to more than one or just a few individuals. However, other courts have looked to the particular facts of the case together with the nature of the disclosure and the relationships of the individuals involved in assessing whether the publicity element of an invasion of privacy claim was satisfied. This is so even when the disclosure is made, as in this case, to only one or a few persons. For example, in Illinois, if a plaintiff has a special relationship with the individuals to whom the matter was disclosed, the publicity requirement may be satisfied by disclosure to a small number of people. Chisholm v. Foothill Capital Corp., 3 F. Supp. 2d 925, 940 (N.D. Ill. 1998). The rationale behind this rule is that the disclosure may be just as devastating to the person even though the disclosure was made to a limited number of people. Id.

¶ 23. Although Wisconsin courts have never expressly applied this exception to the general publicity rule, the Hillman court recognized it when the court observed that "there is authority for finding 'publicity' [when disclosure is to a limited audience] where a special relationship exists between the plaintiff and the 'public' to whom the information has been disclosed." Hillman, 164 Wis. 2d at 395 n.10 (citing Miller v. Motorola, Inc., 560 N.E.2d 900, 903 (Ill. App. 1990); McSurely v. McClellan, 753 F.2d 88, 112 (D.C. Cir. 1985); Beaumont v. Brown, 257 N.W.2d 522, 531 (Mich. 1977)). When a special relationship exists, the public can include one person or small groups such as fellow employees, club members, church members, family or neighbors. Beaumont, 257 N.W.2d at 529, 531. "An invasion of a plaintiffs right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff." Id. at 531.

¶ 24. We conclude that disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim. Rather, whether such a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of plaintiffs relationship to the audience who received the information.

¶ 25. Here, the facts established that LeDoux disclosed Pachowitz's private information to Slocomb, who LeDoux knew was one of Pachowitz's fellow employees at West Allis Memorial Hospital. Pachowitz's husband's request to the EMTs that Paehowitz be transported to a different hospital, Waukesha Memorial Hospital, supports an inference that Paehowitz wanted to avoid disclosure of her need for emergency medical care to her fellow employees. Approximately two weeks prior to the April 21 incident, while socializing with Slocomb and other individuals, LeDoux heard Slocomb discuss Pachowitz's private affairs at length. Thus, LeDoux was on notice as to Slocomb's "loose lips." Under such circumstances, the law of invasion of privacy is not served by immunizing one such as LeDoux as a matter of law. Instead, like the trial court, we conclude that the question of LeDoux's liability was for a jury.

¶ 26. The jury found that LeDoux's disclosure of private information to Slocomb violated Pachowitz's right to privacy. We review a jury's finding under the "any credible evidence" standard. See Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 783, 541 N.W.2d 203 (Ct. App. 1995). Under this standard, we will uphold the jury's determination if there is any credible evidence to sustain the verdict. Id. at 782-83.

¶ 27. The evidence allows for the inference that Pachowitz had a special relationship with her co-employees, including Slocomb, and that disclosure of personal and private information about the EMT call would embarrass Pachowitz. The evidence further supports an inference that LeDoux should have appreciated the risk that Slocomb would further disclose Pachowitz's private information. As such, the evidence supports the jury's answer that LeDoux had publicized private medical information concerning Pachowitz. We therefore uphold the trial court's denial of the appellants' motion to change the jury's answer.

2. Reckless or Unreasonable Conduct

¶ 28. The appellants next argue that the evidence does not establish that that LeDoux acted unreasonably or recklessly as to whether the information was of legitimate public interest when she contacted Slocomb, thereby failing to prove an essential element of invasion of privacy. As noted above, we review a jury's finding under the "any credible evidence" standard and will uphold the jury's determination if there is any credible evidence to sustain the verdict. Id.

¶ 29. We conclude that there was credible evidence to support the jury's finding in this case that LeDoux acted unreasonably or recklessly in disclosing Pachowitz's private information to Slocomb. First, LeDoux testified that she was advised of the confidential nature of patient information in her EMT training sessions and that she was aware prior to the incident on April 21, 2000, that information obtained as an EMT must be kept confidential. Second, LeDoux testified that prior to calling Slocomb she did not "stop and think about whether the information was confidential." Third, as noted earlier, LeDoux was on notice as to Slocomb's propensity to discuss and reveal personal and private information concerning Pachowitz.

¶ 30. This evidence fairly allows for an inference that LeDoux acted unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved. Wis. Stat. § 895.50(2)(c). The jury's verdict reflects its finding that Pachowitz's medical information was not a legitimate public interest and that LeDoux acted unreasonably in disregarding her EMT training and in failing to consider her patient's right to confidentiality prior to contacting Slocomb. Because there is credible evidence to support the jury's finding, we again uphold the trial court's denial of the appellants' motion to change the jury's answer. See Foseid, 197 Wis. 2d at 782.

Attorney Fees

¶ '31. Having prevailed on her invasion of privacy claim, Pachowitz was entitled to her reasonable attorney fees under the fee shifting provisions of Wis. Stat. § 895.50(l)(c). Post verdict, Pachowitz sought attorney fees in the amount of $30,460. The trial court determined that this amount was reasonable and awarded Pachowitz her requested fees. The appellants challenge this determination.

¶ 32. The reasonableness of attorney fees presents a question of law; however, we give weight to the trial court's determination on this issue. Nelson v. Machut, 138 Wis. 2d 301, 305, 405 N.W.2d 776 (Ct. App. 1987). This is because "[the trial judge] has observed the quality of the services rendered and has access to the file in the case to see all of the work which has gone into the action from its inception. [It] has the expertise to evaluate the reasonableness of the fees with regard to the services rendered." Id. (citing Standard Theatres v. Transp. Dept., 118 Wis. 2d 730, 747, 349 N.W.2d 661 (1984)).

¶ 33. The factors to be considered as guides in evaluating the reasonableness of a fee request are set forth in Siegel v. Leer, Inc., 156 Wis. 2d 621, 631, 457 N.W.2d 533 (Ct. App. 1990):

(1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent.

¶ 34. In ruling on Pachowitz's requested attorney-fees, the trial court considered the written record, the arguments made by counsel and the billing records. The court found:

[F]rom a macro-analysis point of view we have a case that... included various motions and appearances in court, defending a request that the Court of Appeals allow a discretionary appeal[,] ... briefing and argument on the issue of getting to the jury about spreading the rumor,... preparation and completion of a jury trial, including the jury selection and the trial of the matter, and these post judgment motions .... $30,460 seems reasonable, it is in the right ballpark. It is not surprising, it is not shocking, it is not unusual.
I have had a chance to observe the parts [of the file] that came to court and what went in the court file. And comparing that to the billing records and information, they seem fair and reasonable.

¶ 35. Although the appellants single out charges on the billing records that they deem unreasonable, the trial court observed firsthand the results of those expenditures of time and found them to be reasonable. We have likewise reviewed the billing records in light of the consideration set forth in Siegel and the entire record in this case. We are satisfied that the time and labor required by a reputable attorney in preparing and trying this case which involved a fairly novel issue could have resulted in the requested fees. Giving weight to the trial court's decision, we conclude that Pachowitz's attorney fees were reasonable. See Nelson, 138 Wis. 2d at 305.

Offer of Judgment and Offer of Settlement

1. Methodology

¶ 36. Before we address the validity of LeDoux's offer of judgment and Pachowitz's offer of settlement, we set out the methodology for assessing the sufficiency of such offers.

¶ 37. Wisconsin Stat. § 807.01(1) addresses offers of judgment by a defendant. It provides in relevant part:

After issue is joined but at least 20 days before the trial, the defendant may serve upon the plaintiff a written offer to allow judgment to he taken against the defendant fpr the sum, or property, or to the effect therein specified, with costs .... If the offer of judgment is not accepted and the plaintiff fails to recover a more favorable judgment, the plaintiff shall not recover costs hut defendant shall recover costs to be computed on the demand of the complaint.

¶ 38. Wisconsin Stat. § 807.01(3) and (4) address offers of settlement by a plaintiff. Subsection (3) provides in relevant part:

After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs .... If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.

Subsection (4) provides in relevant part:

If there is an offer of settlement by a party under this section which is not accepted and the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at the annual rate of 12% on the amount recovered from the date of the offer of settlement until the amount is paid.

¶ 39. We begin by addressing the standards for assessing the sufficiency of an offer of settlement under Wis. Stat. § 807.01(3). An offer of settlement is valid when it allows the offeree to fully and fairly evaluate the offer from his or her own independent perspective. Testa v. Farmers Ins. Exch., 164 Wis. 2d 296, 302, 474 N.W.2d 776 (Ct. App. 1991). It is the obligation of the party making the offer to do so in clear and unambiguous terms, and any ambiguity in the offer is construed against the drafter. Ritt v. Dental Care Assocs., S.C., 199 Wis. 2d 48, 76, 543 N.W.2d 852 (Ct. App. 1995).

¶ 40. While Testa and Ritt made these statements in the context of evaluating offers of settlement made by a plaintiff under Wis. Stat. § 807.01(3), we see no reason why the same principles should not apply to offers of judgment made by a defendant under § 807.0K1).

¶ 41. Next, we address the statutory framework of Wis. Stat. § 807.01(1), (3) and (4). These subsections confer different remedies to a party who has prevailed on an offer of judgment or an offer of settlement. A defendant who prevails on an offer of judgment is entitled to "costs to be computed on the demand of the complaint." Sec. 807.01(1). A plaintiff who prevails on an offer of settlement is entitled to double costs pursuant to § 807.01(3) and 12% interest on the "amount recovered" pursuant to § 807.01(4).

¶ 42. Despite these differences in remedies, the statute employs a similar mechanism for determining whether the offering party has prevailed and is therefore entitled to the statutory remedies. A defendant has prevailed on an offer of judgment "[i]f... the plaintiff fails to recover a more favorable judgment...." Wis. Stat. § 807.01(1). A plaintiff has prevailed on an offer of settlement and is entitled to double costs "[i]f. . . the plaintiff recovers a more favorable judgment. .. ." Sec. 807.01(3). In addition, a plaintiff has prevailed on an offer of settlement and is entitled to 12% interest "[i]f. . . the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement. . . ." Sec. 807.01(4).

¶ 43. The foregoing discussion reveals that there is a three-step methodology that a court employs when determining if an offering party is entitled to the remedies of Wis. Stat. § 807.01:

(1) The court must first determine if the offer was sufficient under the standards set out in the case law. This requires the court to assess whether the offer allowed the other party to fully and fairly evaluate the offer from his or her own independent perspective. Testa, 164 Wis.2d at 302;

(2) If the offer is sufficient under Testa, the court next measures the offer against the judgment to determine if the offering party qualifies for the statutory remedies. In the case of an offer of judgment by the defendant, the court inquires whether the plaintiff has failed to recover a more favorable judgment. In the case of an offer of settlement by the plaintiff, the court inquires whether the plaintiff has recovered a more favorable judgment, entitling the plaintiff to double costs under Wis. Stat. § 807.01(3), and whether the plaintiff has recovered a judgment which is equal to or greater than the offer of settlement, entitling the plaintiff to 12% interest on the amount recovered pursuant to § 807.01(4); and

(3) If the offer survives when measured against the judgment, the court must then determine the appropriate remedies allowed by Wis. Stat. § 807.01. In the case of a prevailing offer of judgment by the defendant, the remedy is costs as measured by the demand of the complaint pursuant to subsec. (1). In the case of a prevailing offer of settlement by the plaintiff, the remedy is double costs pursuant to subsec. (3) and 12% interest on the amount recovered pursuant to subsec. (4)

¶ 44. With this methodology in mind, we turn to the offers in this case.

2. LeDoux's Offer of Judgment

¶ 45. LeDoux submitted an offer of judgment in the amount of "Five Thousand Dollars ($5,000) together with statutory taxable costs and disbursements." Pachowitz did not accept the offer. Based on this offer, the appellants argued that they were entitled to costs pursuant to Wis. Stat. § 807.01(1) because LeDoux's $5000 offer of judgment exceeded Pachowitz's $3000 compensatory damage award. The trial court, however, ruled that LeDoux's offer of judgment was defective because it did not include an allowance for Pachowitz's reasonable attorney fees. In addition, when measuring LeDoux's offer of judgment against the final judgment, the court added Pachowitz's attorney fees to the jury's $3000 compensatory damages. This put the amount of the judgment in excess of LeDoux's $5000 offer of judgment. The appellants challenge both of these trial court actions.

¶ 46. The appellants principally cite to Dobbratz Trucking & Excavating, Inc. v. PACCAR, Inc., 2002 WI App 138, 256 Wis. 2d 205, 647 N.W.2d 315, in support of their argument. There, the court of appeals held that attorney's fees awarded under the fee shifting provisions of the Lemon Law were not embraced by the "amount recovered" language of Wis. Stat. § 807.01(4). Dobbratz, 256 Wis. 2d 205, ¶ 30. Therefore, the court ruled that the plaintiff was not entitled to compute the statutory 12% interest on that portion of the judgment. See id. In support, Dobbratz cited to this court's opinion in American Motorists Insurance Co. v. R & S Meats, Inc., 190 Wis. 2d 196, 214-15, 526 N.W.2d 791 (Ct. App. 1994), where we held that the "amount recovered" language of § 807.01(4) did not include the double cost provisions of Wis. Stat. § 807.01(3). Dobbratz, 256 Wis. 2d 205, ¶ 30. Therefore, we concluded that the 12% interest did not apply to such costs. Id., ¶¶ 29, 31. Dobbratz also cited to the supreme court's opinion in Nelson v. McLaughlin, 211 Wis. 2d 487, 497-507, 565 N.W.2d 123 (1997), holding that the "amount recovered" language of § 807.01(4) applied only to that portion of the judgment for which an insurance company was responsible under its policy limits. Dobbratz, 256 Wis. 2d 205, ¶ 31. Therefore, the supreme court held that the plaintiff was entitled to compute 12% interest only on that limited portion of the judgment. Nelson, 211 Wis. 2d at 501. The core holding of all of these cases is that the legislature did not intend the phrase "amount recovered" in § 807.01(4) to mean "judgment." See, e.g., Nelson, 211 Wis. 2d at 500.

¶ 47. We reject the appellants' reliance on Dob-bratz and the cases cited therein. As noted, those cases addressed whether the 12% interest remedy provided in Wis. Stat. § 807.01(4) applied to certain components of the judgment: (1) attorney fees under a fee shifting statute (Dobbratz)-, (2) double costs under Wis. Stat. § 807.01(3) (American Motorists)-, and (3) all, or only that portion, of a judgment for which an insurance company was liable under its policy limits (Nelson). All three cases were concerned with the final step of the methodology we addressed earlier — determining the appropriate remedy provided by the statute.

¶ 48. Here, however, the questions posed by LeDoux's offer of judgment concern the first two steps of the methodology — determining whether LeDoux's offer of judgment satisfied the Testa standard, and, if so, whether Pachowitz obtained a judgment more favorable than LeDoux's offer of judgment.

¶ 49. We took pains in American Motorists to note that the legislature had made a sharp distinction in Wis. Stat. § 807.01 between "judgment" on the one hand and "amount recovered" on the other. American Motorists, 190 Wis. 2d at 214. The supreme court made a similar point in Nelson, citing favorably to American Motorists. Nelson, 211 Wis. 2d at 499. We pointed out that the legislature used the term "judgment" as the measuring stick against which the offer was compared. See American Motorists, 190 Wis. 2d at 214. However, the legislature used the phrase "amount recovered" as the gauge for determining the proper amount on which the prevailing party could compute 12% interest. Sec. 807.01(4). Here, as noted, we are concerned with comparing Pachowitz's judgment against LeDoux's offer of judgment. We are not concerned with the amount upon which Pachowitz is entitled to compute the 12% interest provision of § 807.01(4). Under this analysis, the trial court correctly determined that the appellants were not entitled to costs under § 807.01(1) because the judgment in the amount of $37,909.86 far exceeded LeDoux's $5000 offer of judgment.

¶ 50. That does not fully answer the issue, however, because the appellants contend that the trial court erred by including Pachowitz's reasonable attorney fees in the judgment, thereby putting the judgment in excess of the offer of judgment. In support, the appellants cite to Northridge Co. v. W.R. Grace & Co., 205 Wis. 2d 267, 556 N.W.2d 345 (Ct. App. 1996), for the proposition that an offer of settlement and the final judgment must be compared exclusive of costs.

¶ 51. However, Pachowitz sued LeDoux under Wis. Stat. § 895.50, which specifically provides for compensatory damages and "[a] reasonable amount for attorney fees." We conclude that when a defendant is sued under a fee shifting statute, that party is on noticfe that the plaintiff is seeking not only damages but also reasonable attorney fees. Accordingly, when making an offer of judgment, the defendant is properly held to include such fees and to so inform the plaintiff. From that it logically follows that the trial court should also include attorney fees in the judgment when it measures the offer against the judgment. Here, LeDoux's offer of judgment said nothing of attorney fees. Instead, it was limited to compensatory damages, costs and disbursements. As noted, it is the obligation of the party making the offer to do so in clear and unambiguous terms, Ritt, 199 Wis. 2d at 76, thereby allowing the plaintiff to "fully and fairly evaluate the offer from his [or her] own independent perspective." Testa, 164 Wis. 2d at 302. LeDoux's offer of judgment did not live up to these standards. At best, it was a partial settlement offer relating only to compensatory damages, costs and disbursements. But Wis. Stat. § 807.01 does not envision partial settlements; it envisions complete settlements.

¶ 52. We hold that LeDoux's offer of judgment was invalid because it failed to include an allowance for Pachowitz's reasonable attorney fees. We further hold that the trial court properly included such fees in the judgment when measuring the offer against the judgment. Therefore, the trial court properly denied the appellants' application for costs under Wis. Stat. § 807.01(1).

3. Pachowitz's Offer of Settlement

¶ 53. Prior to trial Pachowitz filed an offer of settlement which offered to "settle this matter with the Defendants, Katherina LeDoux, Tess Corners Volunteer Fire Department and Continental Western Insurance Company, for the sum of Twenty-Five Thousand Dollars ($25,000), which includes statutory attorneys' fees as allowed by Wis. Stat. § 895.50, together with taxable costs." The offer was made pursuant to Wis. Stat. § 807.01(3) and (4). The appellants did not accept the offer. Post verdict, the appellants challenged Pachowitz's offer as invalid because it proposed a single settlement figure to multiple defendants.

¶ 54. In Wilber v. Fuchs, 158 Wis. 2d 158, 160, 461 N.W.2d 803 (Ct. App. 1990), we held that a plaintiffs single offer of settlement directed individually to multiple defendants was not a valid offer- of settlement pursuant to Wis. Stat. § 807.01(3). In Wilber, all five individual defendants, each alleged to be negligent in different ways, were confronted with one offer of settlement, which recited only one aggregate settlement figure for all claims relating to the incident. Wilber, 158 Wis. 2d at 163-64. As such, the offer of settlement "did not permit each defendant to individually evaluate the offer from the perspective of that defendant's assessment of his or her own exposure." Id. at 164.

¶ 55. Here, the trial court rejected LeDoux's argument that Pachowitz's offer was invalid because it was made to multiple defendants. The trial court found that because Continental was "going to pay the bill," the fact that the offer was made to multiple defendants did not preclude the defendants from being able to evaluate the offer. However, the trial court's ruling overlooked that at the time of Pachowitz's offer of settlement, an insurance coverage dispute existed between Continental and LeDoux.

¶ 56. From the very outset of this case, Continental's and LeDoux's position were adverse. While Continental filed an answer on behalf of Tess Corners, it did not file an answer on behalf of LeDoux. Instead, Continental's answer denied that LeDoux was acting within the scope of her employment when she communicated with Slocomb. Based on this allegation, Continental's answer also raised the affirmative defense that LeDoux's conduct was not covered under the Continental policy. As a result, separate counsel represented LeDoux. Thus, Continental's position was adverse to that of LeDoux when Pachowitz made her offer of settlement, and this condition continued during the allotted period of time for acceptance of the offer.

¶ 57. That Continental later abandoned its coverage challenge at the close of the evidence is not relevant for purposes of determining the validity of the offer at the time it was made. See Ritt, 199 Wis. 2d at 76. In light of the coverage dispute at the time of Pachowitz's offer, it would have been impossible for Continental (or LeDoux) to evaluate Pachowitz's offer from an independent perspective and to intelligently assess each party's degree of exposure. See Wilber, 158 Wis. 2d at 164. In summary, Pachowitz's offer of settlement fails to survive the first step of the methodology We reverse that portion of the judgment awarding Pachowitz double costs and 12% taxable interest pursuant to Wis. Stat. § 807.01(3) and (4).

CONCLUSION

¶ 58. We affirm the following rulings of the trial court. LeDoux's communication to a single person did not, as a matter of law, preclude Pachowitz's claim for invasion of privacy under Wis. Stat. § 895.50 under the facts of this case. The evidence was sufficient to support the jury's finding that LeDoux invaded Pachowitz's privacy. Pachowitz's reasonable attorney fees are. $30,460. LeDoux's offer of judgment was invalid because it did not include an allowance for Pachowitz's reasonable attorney fees. Moreover, the judgment exceeded LeDoux's offer of judgment.

¶ 59. We reverse the trial court's ruling enforcing Pachowitz's offer of settlement. We hold that the offer was invalid because it was made to multiple defendants with adverse interests. Pachowitz is therefore not entitled to double costs or 12% interest under Wis. Stat. § 807.01(3) and (4).

¶ 60. We affirm in part, reverse in part, and remand with directions that the trial court enter judgment consistent with this opinion.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All statutory references are to the 2001-02 version.

       Julie Lynn Pachowitz died during the pendency of these proceedings. As a result, her estate was substituted as the plaintiff and is the respondent in this appeal. For ease of reference, we will refer to the respondent as "Pachowitz."

       LeDoux also spoke to her husband and another EMT about the matter. However, these communications were not the basis for Pachowitz's invasion of privacy claim.

       Pachowitz additionally named LeDoux's homeowner's insurance provider, American Family Mutual Insurance Company, as a defendant. Pachowitz later stipulated to the dismissal of American Family from the action.

       LeDoux additionally argued that the matter was governed by Wis. Stat. § 153.85, which provides that any person who discloses an individual's health care information is liable to the patient for actual damages and costs, plus exemplary damages of up to $1000 for a negligent violation and up to $5000 for an intentional violation. LeDoux does not raise this argument on appeal.

       Following the entry of the trial court's written order denying LeDoux's motion to dismiss, LeDoux filed a petition for leave to appeal the nonfinal order. We denied LeDoux's motion by written order dated January 9, 2002.

       While the work of the civil jury instructions committee is insightful and persuasive, the instructions issued by the committee are not binding. Nommensen v. Am. Cont'l Ins. Co. 2001 WI 112, ¶ 47, 246 Wis. 2d 132, 629 N.W.2d 301.

        See Hanson v. Hancock County Mem'l Hosp., 938 F. Supp. 1419, 1437-38 (N.D. Iowa 1996) (communication to a small group does not constitute "publicity"); Yoder v. Smith, 112 N.W.2d 862, 864 (Iowa 1962) (publicity does not include communication to the plaintiffs employer, or to any other individual or small group); Yoder v. Ingersoll-Rand Co., 31 F. Supp. 2d 565, 570 (N.D. Ohio 1997) (one person or three people do not constitute "public at large"), aff'd, 172 F.3d 51 (6th Cir. 1998) (per curiam) (it is not an invasion of privacy to disclose an embarrassing fact to a single person or even a small group of persons); Robins v. Conseco Fin. Loan Co., 656 N.W.2d 241, 242 (Minn. Ct. App. 2003) (disclosure to one person does not constitute publicity); C.L.D. v. Wal-Mart Stores, Inc., 79 F. Supp. 2d 1080, 1082-84 (D. Minn. 1999) (disclosure to three people is not sufficient publicity to warrant a claim for invasion of privacy); Wood v. Nat'l Computer Sys., Inc., 814 F.2d 544, 545 (8th Cir. 1987) (disclosure of private information to one person is not sufficient to constitute publicity); Jones v. U.S. Child Support Recovery, 961 F. Supp. 1518, 1521 (D. Utah 1997) (disclosure of private facts to plaintiffs employer and family members does not constitute publicity); Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1448 (D. Nev. 1994) (creditor's phone calls to a small group of a debtor's coworkers not sufficient to constitute publicity); Taylor v. NationsBank N.A., 738 A.2d 893, 897 (Md. App. 1999) ("[N]o matter how offensive the intrusion, the communication must be to a group larger than just a few persons.").

        See also Hill v. MCI WorldCom Communications, Inc., 141 F. Supp. 2d 1205, 1213 (S.D. Iowa 2001) (communication to one person constituted publicity due to confidential relationship between plaintiff and third party); McSurely v. McClellan, 753 F.2d 88, 112 (D.C. Cir. 1985) (applying Kentucky law, "the publication requirement also may be satisfied by proof of disclosure to a very limited number of people when a special relationship exists between the plaintiff and the 'public' to whom the information has been disclosed"); Miller v. Motorola, Inc., 560 N.E.2d 900, 903 (Ill. App. 1990) (disclosure to a small group of fellow employees sufficient because special relationship existed); Beaumont v. Brown, 257 N.W.2d 522, 531 (Mich. 1977) (the "public" might be a particular public such as fellow employees, club members, church members family, or neighbors), overruled on other grounds by Bradley v. Saranac Cmty. Sch. Bd. of Educ., 565 N.W.2d 650 (Mich. 1997).

       The statute also covers offers of specified damages by a defendant. Wis. Stat. § 807.01(2). Under this scenario, the defendant offers a specified amount of damages "if the defendant fails in the defense" of the action. Id. If the offer is not accepted and if the plaintiff prevails but does not recover damages in excess of the offer, neither party is entitled to costs. Id. This provision is not at issue in this case. Nonetheless, the methodology applicable to offers of judgment and offers of settlement would also apply to an offer of specified damages.

       The same is true of an offer of specified damages pursuant to Wis. Stat. § 807.01(2).

       As our ensuing discussion will reveal, the "amount recovered" is not the same as the judgment. See infra at ¶¶ 45-49.

       On this same basis, the trial court determined that Pachowitz's offer of settlement was enforceable because the judgment exceeded the offer.

       The appellants contend that LeDoux's offer of judgment was intended to include attorney fees. That contention is not borne out by the clear language of the offer nor by the record.

       A defendant must accept an offer of settlement before trial and within ten days after receipt of the offer. Wis. Stat. § 807.01(3).