source: Caselaw Access Project

author: DAVID T. PROSSER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Corey J. Hampton, Defendant-Appellant.
    Supreme Court

      No. 01-0509-CR.

      Oral argument September 17, 2003.

    Decided July 8, 2004.

    2004 WI 107
    (Also reported in 683 N.W.2d 14.)

      Roggensaok, J., took no part.
    For the plaintiff-respondent-petitioner the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the briefs was Peggy A. Lauten-schlager, attorney general.

      For the defendant-appellant there was a brief and oral argument by Melinda A. Swartz, assistant state public defender.
   DAVID T. PROSSER, J.

¶ 1. This is a review of a published decision of the court of appeals, State v. Hampton, 2002 WI App 293, 259 Wis. 2d 455, 655 N.W.2d 131. The court of appeals reversed an order of the Milwaukee County Circuit Court, denying the defendant's postconviction motion to withdraw his plea without first conducting an evidentiary hearing on the motion. At the earlier plea hearing, the circuit court neglected to advise the defendant personally that the court was not bound by his plea agreement with the State. Later the court imposed a longer stayed sentence and a longer period of probation than the State had agreed to recommend. The court of appeals concluded that the defendant had made a prima facie showing under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), that he was entitled to an evidentiary hearing on his motion to withdraw the plea.

¶ 2. This review presents three issues. First, in taking a plea of guilty or no contest from a criminal defendant, must the circuit court advise the defendant personally on the record that the court is not bound by a plea agreement and ascertain whether the defendant understands this information? We conclude that the answer is "yes," thereby affirming the decision in State ex rel. White v. Gray, 57 Wis. 2d 17, 203 N.W.2d 638 (1973).

¶ 3. Second, what is the appropriate way for a circuit court to advise the defendant personally that a plea agreement is not binding on the court? We conclude that there is no single, inflexible way for the court to discharge this duty, but the most logical, consistent, and efficient method is for the court to personally deliver an explanation to the defendant and then ascertain whether the defendant understands that the court is not bound by a plea agreement. The court may not discharge this duty by anything less than a personal dialogue.

¶ 4. Third, is the circuit court required to conduct an evidentiary hearing on a defendant's motion to withdraw his plea when the motion points to the court's failure in the plea colloquy to advise the defendant personally that the court was not bound by the plea agreement, and the defendant also alleges that he did not understand that the court was not bound by the plea agreement? We conclude that the answer is "yes," because the defendant will have made the requisite showing for an evidentiary hearing, as provided in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

¶ 5. On the facts presented, we conclude that the circuit court was required to conduct an evidentiary hearing to determine whether Corey Hampton's plea was knowingly, voluntarily, and intelligently entered. Consequently, we affirm the decision of the court of appeals and remand to the circuit court for action consistent with this opinion.

I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

¶ 6. The relevant facts are not in dispute. On September 16, 1998, Corey J. Hampton was charged with second-degree sexual assault of a child, a felony that carried a potential prison term of 20 years. See Wis. Stat. §§ 939.50(3)(bc), 948.02(2). On December 8, 1998, Hampton entered an Alford plea to that charge.

¶ 7. Prior to the plea hearing, Hampton's attorney negotiated a plea agreement with the State. He also met with the defendant to review a two-page plea questionnaire.

¶ 8. Item 10 of the plea questionnaire read: "I understand that the Judge is not bound to follow any plea agreement or any recommendation made by the District Attorney, my attorney, or any presentence report. I understand that the Judge is free to sentence me to the . . . maximum possible penalties in this case." Immediately below this language the questionnaire listed the charge against Hampton and noted, "Years: 20" and "Fine: $10,000."

¶ 9. Item 15 of the questionnaire stated: "I have read (or have had read to me) this entire questionnaire, and I understand its contents." Below this statement, Hampton signed his name and wrote in the date. Hampton's attorney also signed the questionnaire, attesting that "the defendant acknowledged his understanding of each item in this questionnaire."

¶ 10. The questionnaire was dated December 6, 1998. Two days later, at the plea hearing, Hampton acknowledged that his counsel had read the information in the plea questionnaire to him and that Hampton had signed both sides of the form.

¶ 11. The plea hearing on December 8 generated a 28-page transcript, with a lengthy plea colloquy, which the court of appeals later described as "exemplary .. . with one exception." Hampton, 259 Wis. 2d 455, ¶ 7.

¶ 12. Circuit Judge Mel Flanagan elicited information about the defendant's age, his six years of post-high school education, his history of mental problems and voluntary commitments, his medications, the offense, the victim, and potential charges outside the county. The court also asked questions about the appropriate plea. Because the court had received a letter from Hampton in which he denied an element of the offense, the court questioned whether Hampton truly wished to enter a no-contest plea. The court asked defense counsel to take a moment to discuss with Hampton whether he wanted to enter an Alford plea instead. After a discussion with the defendant off the record, defense counsel informed the court that Hampton wanted to enter an Alford plea.

¶ 13. The court also engaged in extensive discussion of a plea agreement in which the State offered the defendant an option on the State's sentencing recommendation. In essence, the State offered the defendant a choice between a recommendation to the court of a seven-year prison sentence stayed, with seven years of probation and nine to twelve months in the House of Correction as a condition of probation; or a recommendation to the court of an imposed and stayed sentence of incarceration and probation with a period of time in the House of Correction, leaving the length of all terms to the court's discretion. By asking probing questions, the court clarified the plea agreement. In the discussion, the district attorney corrected his description of the agreement, and defense counsel explained to the defendant: "[The district attorney's] recommendation on the second [option] is just to stand silent as to how long you're in jail or a prison, leaving that all to the judge. He would just stand silent as to the amount.... In either case, we're free to argue for less. Do you understand that now?" Hampton answered, "Yes."

¶ 14. In the colloquy, the court addressed both the maximum penalty for the offense and the defendant's understanding of the terms of the plea agreement:

The Court: [The State has] agreed to the two possible recommendations at sentencing that they have offered to you; do you understand that?
The Defendant: Yes.
The Court: And you understand that the offense for which you are charged at this time carries a penalty of up to twenty years in prison; do you understand that?
The Defendant: Now I do.
The Court: Okay. Is that news to you?
The Defendant: I thought it was forty years, Your Honor.
The Court: Am I wrong?
The Prosecutor: No. It's a — It's a second degree.
The Court: One count —
The Prosecutor: Correct —
The Court: — so it's a —
The Prosecutor: — twenty year —
The Court: — twenty year penalty. Okay now do you understand that?
The Defendant: Yes.
The Court: Okay. Now, you understand that their recommendation of either making an affirmative recommendation of seven years imposed and stayed and seven-year probation or leaving it up to the Court to determine what the imposed and stayed sentence is and what the probation is are both far less than the maximum that they could recommend; do you understand that?
The Defendant: Yes, I do.
The Court: Okay. So do you understand that you are receiving a benefit from them in the fact that they would not charge any other charges and make one of those two recommendations at sentencing?
The Defendant: Yes, I do.
The Court: Other than what the State has agreed to recommend, the two possible recommendations, have you been promised anything else?
The Defendant: No.
The Court: Do you understand that this offense [second-degree sexual assault of a child] is — you can face a possible fine of up to $10,000 or imprisonment for not more than twenty years or both; do you understand that?
The Defendant: Yes.
The Court: And you understand that the State has agreed to recommend an imposed and stayed sentence of seven years in jail with a seven-year probation with appropriate conditions to include a nine- to twelve-month period in the House of Correction or a period of imposed and stayed sentence and probation with the same conditions, but the length of those sentences would be up to the Court; do you understand that?
The Defendant: Yes.
The Court: Do you have any question about their recommendation or anything we've discussed so far?
The Defendant: No.

¶ 15. The court engaged in extensive discussion with the defendant. At no point, however, did the circuit court personally advise the defendant that it was not bound by the plea agreement, or ask the defendant whether he understood that the court was not bound by the plea agreement. The State does not contend that the court's statements about "leaving it up to the Court to determine what the imposed and stayed sentence is" or "the length of those sentences would be up to the Court" were anything more than summaries of part of the State's second possible sentencing recommendation.

¶ 16. On March 8, 1999, honoring the defendant's choice under the plea agreement, the State recommended a seven-year imposed and stayed sentence and seven years probation with a condition that Hampton serve a nine- to twelve-month jail term.

¶ 17. The court placed Hampton on probation and ordered a twelve-month jail term but rejected the remainder of the recommendation. Rejecting a seven-year imposed and stayed prison term with seven years of probation, the circuit court imposed and stayed a twelve-year prison term with twelve years of probation.

¶ 18. Hampton filed a postconviction motion requesting an evidentiary hearing at which he intended to demonstrate that his plea should be withdrawn because it was not knowingly and voluntarily made. He alleged that the circuit court failed to personally advise him that it was not bound to follow the sentencing recommendation of the plea agreement and that he did not understand that the court was not bound by the prosecutor's recommendation. The circuit court denied the motion without an evidentiary hearing and Hampton appealed.

¶ 19. A divided court of appeals reversed, concluding that Hampton made a prima facie showing under Bangert, inasmuch as (1) the circuit court that accepted the plea failed to personally advise Hampton that it was not bound by the State's sentence recommendation; and (2) Hampton alleged that he was actually unaware that the court was not bound by the recommendation. Hampton, 259 Wis. 2d 455, ¶ 17. The court concluded that the circuit court erred in denying Hampton's postconviction motion to withdraw his plea without conducting an evidentiary hearing. Id., ¶ 18.

II. CIRCUIT COURT'S OBLIGATION TO ADVISE THE DEFENDANT PERSONALLY THAT THE COURT IS NOT BOUND BY THE PLEA AGREEMENT

¶ 20. The first issue is whether, in taking a plea of guilty or no contest from a criminal defendant, the circuit court must advise the defendant personally on the record that the court is not bound by any plea agreement and ascertain whether the defendant understands the information. We conclude that the answer is "yes."

¶ 21. Taking pleas is an increasingly important and complex stage in a criminal proceeding and is the source of frequent litigation. The paramount principle at a plea hearing is that "a guilty or no contest [or Alford] plea must be knowingly, voluntarily, and intelligently entered." State v. Bollig, 2000 WI 6, ¶ 15, 232 Wis. 2d 561, 605 N.W.2d 199 (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)); Bangert, 131 Wis. 2d at 257.

¶ 22. "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction." Boykin, 395 U.S. at 242. When a defendant pleads guilty or no contest, he or she waives several constitutional rights, including the privilege against self-incrimination, the right to a trial by jury, and the right to confront one's accusers. Id. at 243. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). Courts are required to notify defendants of the direct consequences of their pleas. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 636, 579 N.W.2d 698 (1998) (citing Brady, 397 U.S. at 755).

¶ 23. The constitutional mandate set out in Bollig and Boykin is enforced and supplemented by Wis. Stat. § 971.08(l)(a), (b), and (c); and by a series of decisions including State ex rel. Burnett v. Burke, 22 Wis. 2d 486, 494, 126 N.W.2d 91 (1964), Ernst v. State, 43 Wis. 2d 661, 674, 170 N.W.2d 713 (1969), and Bangert, 131 Wis. 2d at 261-62, which established six "general duties" of the trial court in accepting a plea, namely:

(1) To determine the extent of the defendant's education and general comprehension;
(2) To establish the accused's understanding of the nature of the crime with which [the defendant] is charged and the range of punishments which it carries;
(3) To ascertain whether any promises or threats have been made to [the defendant] in connection with [the defendant's] appearance, [the defendant's] refusal of counsel, and [the defendant's] proposed plea of guilty [or no contest];
(4) To alert the accused to the possibility that a lawyer may discover defenses or mitigating circumstances which would not be apparent to a layman such as the accused;
(5) To make sure that the defendant understands that if [the defendant is] a pauper, counsel will be provided at no expense to [the defendant]; and
(6) To personally ascertain whether a factual basis exists to support the plea.

Bangert, 131 Wis. 2d at 261-62 (citations omitted).

¶ 24. Bangert added a seventh duty: (7) To inform the defendant of the constitutional rights that are waived by a plea, or determine whether the defendant already possesses this knowledge, and then ascertain whether the defendant understands that he is giving up these rights by entering a plea. Id. at 270-72. The court stated that: "The defendant need not specifically waive each right, but the record or other evidence must show that he entered his plea voluntarily and knowingly with understanding of the rights he was waiving." Id. at 270.

¶ 25. The appearance of Bangert's seventh duty has led to plea questionnaires that set out a defendant's constitutional rights in detail and provide a place on the form where the defendant acknowledges that these rights are being waived. The court then follows up on the record. This was illustrated in State v. Trochinski, 2002 WI 56, ¶ 11 n.6, 253 Wis. 2d 38, 644 N.W.2d 891, with the following language:

The Court: Now, I'm not going to go over all of the things on the form with you.... I do want to touch bases though with certain constitutional rights.
The Court: Now, if you enter a no contest plea, then you will be waiving and giving up your right to remain silent, your right to testify, your right to a 12 person jury trial, your right to have a unanimous verdict, your right to confront your accuser in court, cross-examine that person under oath, right to call witnesses on your own behalf, and the right to [proof] beyond a reasonable doubt [of] each element of the offense to which you are charged. You understand that that would be the case?
The Defendant: Yes, I do.

¶ 26. The practice of plea-bargaining is an essential component of the administration of criminal justice. Santobello v. New York, 404 U.S. 257, 260 (1971). "[WJhatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Bordenkircher v. Hayes, 434 U.S. 357, 361-62 (1978) (quoting Blackledge v. Allison, 431 U.S. 63, 71 (1977)); see also White, 57 Wis. 2d at 21 ("Plea bargaining is an accepted and necessary part of the process whereby a good many criminal prosecutions are terminated as a result of a guilty plea.").

¶ 27. In Wisconsin, circuit judges do not involve themselves in plea bargaining. State v. Erickson, 53 Wis. 2d 474, 481, 192 N.W.2d 872 (1972); Rahhal v. State, 52 Wis. 2d 144, 150, 187 N.W.2d 800 (1971); State v. Wolfe, 46 Wis. 2d 478, 487, 175 N.W.2d 216 (1970). In Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971), this court declared that "any advance understanding between a prosecutor and defendant must not involve the trial judge."

¶ 28. In White, the court embraced the corollary to the Farrer principle, namely: "If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court." 57 Wis. 2d at 24 (quoting American Bar Association, Standards Relating to Pleas of Guilty, Approved Draft, § 1.5 at 29 (1968)) (emphasis added).

¶ 29. Curiously, this important mandate was not listed among the "duties" outlined in Bangert.

¶ 30. In White, a defendant pleaded guilty to burglary pursuant to a plea agreement. The agreement provided for the dismissal of a similar charge against the defendant's brother. White, 57 Wis. 2d at 20. The details of the plea agreement were not disclosed to the court at the plea hearing. This court stated that the terms of any plea agreement should be made a matter of record at the plea hearing, id. at 22 (citing Austin v. State, 49 Wis. 2d 727, 183 N.W.2d 56 (1971)), to assist review of such issues as whether a plea agreement was proper, whether a plea agreement was kept, and whether the resulting plea was voluntary. To ensure compliance, we emphasized that "the standards specified in sec. 1.5 of the ABA Standards Relating to Pleas of Guilty must be observed with respect to ascertaining whether a plea agreement has been reached prior to the plea discussion and the terms of the agreement that has been reached." Id. at 24 (emphasis added).

¶ 31. Section 1.5 of the ABA Standards provided that a court should not accept a plea of guilty or no contest unless it determines "whether the tendered plea is the result of prior plea discussions and a plea agreement." Id. This is consistent with the third enumerated Bangert requirement noted above, that a court must "ascertain whether any promises .. . have been made to [the defendant] in connection with [the defendant's] . . . proposed plea of guilty." Bangert, 131 Wis. 2d at 262.

¶ 32. Furthermore, when the court becomes aware that the guilty or no contest plea is the result of a plea agreement, it must inquire as to the terms of the agreement. If the court discovers that "the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court." White, 57 Wis. 2d at 24 (quoting American Bar Association, Standards Relating to Pleas of Guilty, Approved Draft, § 1.5 at 29 n.6 (1968)) (emphasis added).

¶ 33. White's mandate that the court advise the defendant that the prosecutor's recommendation is not binding on the court has been repeated by this court at least twice. In State v. McQuay, 154 Wis. 2d 116, 452 N.W.2d 377 (1990), we held that the State cannot agree to withhold relevant information in exchange for a plea:

Agreements by law enforcement officials, whether they be by the police or prosecutors, not to reveal relevant and pertinent information to the trial judge charged with the duty of imposing an appropriate sentence upon one convicted of a criminal offense, are clearly against public policy and cannot be respected by the courts.

Id. at 125-26 (quoting Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976)). We concluded that the agreement at issue did not violate public policy because a sentencing court is not bound by the terms of the plea agreement. Id. at 128 (citing Young v. State, 49 Wis. 2d 361, 367, 182 N.W.2d 262 (1971)). In this context, we explained that when the court must approve charge or sentence concessions, "the court must personally advise the defendant that the agreement is in no way binding on the court." Id. (emphasis added).

¶ 34. In State v. Comstock, 168 Wis. 2d 915, 920-21, 485 N.W.2d 354 (1992), we addressed whether double jeopardy permits a circuit court to vacate sua sponte a previously accepted no contest plea in order to reinstate previously charged felonies. Answering in the negative, our analysis reiterated crucial components of the legal framework of plea agreements. Id. at 927 n.ll. Central to our discussion was the notion that the circuit court, before accepting a plea agreement, had considerable leeway to probe into the reasons why concessions were appropriate. Id. at 927. We set forth that:

A circuit court has the power to accept or reject a plea agreement reducing or amending charges; it should consider the public interest in making its decision about the plea agreement and should make a complete record of the plea agreement. The court must personally advise the defendant that the agreement is in no way binding on the court.

Id. at 927-28 n.11 (citing White, 57 Wis. 2d at 29-30) (emphasis added).

¶ 35. The State argues that our statements in White, McQuay, and Comstock, which unambiguously require circuit courts to advise defendants entering pleas that the court is not bound by a plea agreement, were insufficiently germane to the issues addressed in those cases to merit precedential value. According to the State, these statements were dicta because they were not necessary to disposition, and we did not intentionally take up or decide whether a court must advise a defendant personally that the plea agreement is not binding on the court.

¶ 36. We disagree, at least insofar as White is concerned. In White, this court clearly focused its attention on the procedures a court should follow when determining whether a plea, especially one that results from a plea agreement, is voluntary. This court directed that the standards proposed by § 1.5 of the ABA Standards "must be observed," exemplifying "a judicial act of the court" that should thereafter be recognized as a binding decision of the court. See State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981).

¶ 37. Perhaps even more telling is the case of State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132. In Williams, this court was asked to adopt a new rule of procedure requiring a trial judge who anticipated exceeding the state's sentencing recommendation under a plea agreement, to inform the defendant of the judge's anticipated action and to allow the defendant to withdraw his plea. This court rejected the proposed rule saying:

In Wisconsin, a trial court is not bound by the state's sentence recommendation under a plea agreement. Before entering a plea, the defendant is informed of and understands that the sentence recommendation he or she has bargained for is not binding on the court. Under this procedure, "failure to receive sentence concessions contemplated by a plea agreement is [not] a basis for withdrawing a guilty plea on the grounds of manifest injustice." Melby v. State, 70 Wis. 2d 368, 385, 234 N.W.2d 634 (1975).

Id., ¶ 2 (citation omitted) (emphasis added). With this analysis, the Williams court not only restated a well established rule but also used that rule as justification for preserving our current plea taking procedure. Abandoning the White/McQuay/Comstock mandate in this case would destroy the foundation of our Williams decision.

¶ 38. Consequently, we reaffirm the rule that a circuit court must advise the defendant personally that the terms of a plea agreement, including a prosecutor's recommendations, are not binding on the court and, concomitantly, ascertain whether the defendant understands this information.

¶ 39. This holding presents a second issue: What is the appropriate way for a circuit court to advise the defendant personally that the terms of a plea agreement are not binding on the court?

¶ 40. The State raises concerns. It notes that in White, the mandate is stated that: "[T]he court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court." Then it observes that McQuay and Comstock restated the mandate as: "The court must personally advise the defendant that the agreement is in no way binding on the court."

¶ 41. What does the word "personally" modify, and what does it mean? Does the mandate require that the circuit judge personally recite the substance of the admonition that the plea agreement is not binding on the court? Is there a set script, similar to the script in Wis. Stat. § 971.08(l)(c), that the court must follow? May the court ascertain a defendant's knowledge of the court's freedom to disregard the plea agreement through a combination of questions and reference to the plea questionnaire or some prior communication?

¶ 42. The essence of the mandate is that the court must engage in a colloquy with the defendant on the record at the plea hearing to ascertain whether the defendant understands that the court is not bound by a sentencing recommendation from the prosecutor or any other term of the defendant's plea agreement. The plea colloquy is defective if it fails to produce an exchange on the record that indicates that the defendant understands the court is free to disregard recommendations based on a plea agreement for sentencing.

¶ 43. The court's duty is to assure that the defendant has enough information and understanding of the court's independent role in sentencing, notwithstanding any plea agreement, that the defendant is able to enter a knowing, voluntary, and intelligent plea. This duty does not require that the court provide all the essential information personally, although personal explanation by the court strikes us as the most logical, consistent, and efficient way of delivering information. Nor does it require magic words or an inflexible script. In every case, however, the court must make personal inquiry of the defendant to determine whether the defendant understands that the court is not bound by the terms of the pled agreement.

¶ 44. In a legal sense, the purpose of the colloquy is to assure a .voluntary and intelligent plea, as well as fundamental fairness in the taking of pleas. In a practical sense, the purpose of the colloquy is to promote finality by eliminating one of the grounds for plea withdrawal. As we have done in the past, we strongly encourage courts to follow the approved plea acceptance procedures as set forth in Wis JI-Criminal SM-32 (1995). See Bangert, 131 Wis. 2d at 272; State v. Minniecheske, 127 Wis. 2d 234, 245-46, 378 N.W.2d 283 (1985); State v. Bartelt, 112 Wis. 2d 467, 483-84 n.3, 334 N.W.2d 91 (1983). We also encourage that these procedures be updated periodically to reflect recent developments in case law.

III. REMEDY FOR COURT'S FAILURE TO PERSONALLY ADVISE THE DEFENDANT THAT THE COURT IS NOT BOUND BY THE PLEA AGREEMENT

¶ 45. In Bangert, we adopted "a new remedy for prima facie violations of statutorily and judicially mandated plea hearing procedures." 131 Wis. 2d at 252. In light of then-contemporary United States Supreme Court jurisprudence, we retreated from our earlier announcement that "the Federal Constitution" required that a circuit court ascertain the defendant's understanding of the nature of the charge from the record at the plea hearing. Id. at 256-57. The judicial duties that we had earlier announced remained, but a new remedy was devised for violations of these duties in light of their non-constitutional underpinnings.

¶ 46. Bangert provides that a defendant may move to withdraw his plea when the procedures outlined in Wis. Stat. § 971.08 are not undertaken or other court-mandated duties at the plea hearing are not fulfilled. The initial burden rests with the defendant to make a pointed showing that the plea was accepted without the trial court's conformity with § 971.08 or other mandatory procedures. Bangert, 131 Wis. 2d at 274. When the defendant's motion shows a violation of § 971.08(l)(a) or (b) or other mandatory duties and alleges that he in fact did not know or understand the information which should have been provided at the plea hearing, the burden shifts to the state to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily, and intelligently entered. Under these circumstances, the circuit court must hold an evidentiary hearing at which the State and the defendant can offer evidence as to whether the defendant in fact knew the information that should have been provided. Id. at 274-75.

¶ 47. To obtain an evidentiary hearing based upon defects in the plea colloquy, the defendant will rely on the plea hearing record. To rebut the defendant's motion to withdraw his plea because the plea was allegedly not knowing, voluntary, and intelligent, the state will likely rely on the totality of the evidence, much of which will be found outside the plea hearing record. Id. at 275.

¶ 48. Bangert applied its new remedy to violations of § 971.08 and the other "duties" outlined in the opinion. As noted, Bangert did not include the mandate set out in White. Nonetheless, we approve the use of the Bangert remedy for plea colloquies that are defective because of the failure of the court to advise the defendant personally that the terms of the plea agreement are not binding on the court and to ascertain that the defendant understands this information.

¶ 49. Bangert spoke to a circuit court's obligations with regard to all guilty and no contest pleas, while the White mandate applies only to that subset of pleas in which the court determines there has been a plea agreement. The Bangert remedy has proven to be a useful tool in enforcing a defendant's rights at plea hearings, and we see no reason not to apply it in the White context.

IV ESTABLISHING THE REQUISITE SHOWING UNDER BANGERT

¶ 50. The third issue concerns a defendant's burden to make a showing that will require the court to conduct an evidentiary hearing on the defendant's motion to withdraw his plea. Is the circuit court required to conduct an evidentiary hearing on a defendant's motion to withdraw his plea when the motion points to the court's failure in the plea colloquy to advise the defendant personally that the court was not bound by the plea agreement, and the defendant also alleges that he did not understand the court was not bound by the plea agreement? We conclude the answer is "yes."

¶ 51. The State asserts that Hampton should not be entitled to an evidentiary hearing despite the circuit court's failure to advise him personally that the court was not bound by the plea agreement, because his motion did not contain sufficient evidentiary facts, which, if true, would have entitled him to withdraw his plea. The State relies on a line of cases highlighted by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); see also Levesque v. State, 63 Wis. 2d 412, 217 N.W.2d 317 (1974); Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972). However, Bangert controls the facts of this case because Bangert-type cases are confined to alleged defects in the record of the plea colloquy. Bentley is inapposite because it applies to allegations less susceptible to objective confirmation in the record.

¶ 52. We begin our discussion with Nelson, 54 Wis. 2d 489, and Levesque, 63 Wis. 2d 412, two cases that serve as the foundation for Bentley. In Nelson, the defendant was denied an evidentiary hearing to withdraw his guilty plea after alleging that his "plea was not made voluntarily after proper advice from counsel and with a full understanding of the consequences of said plea but rather it was obtained unfairly to the ignorance and fear of said affiant." 54 Wis. 2d at 493. On appeal, the defendant argued that the court is obligated to hold a hearing whenever a non-frivolous motion to withdraw or vacate a plea is filed. Id. at 495. We rejected that argument, and concluded instead that after the plea is entered, "it is within the discretion of the trial court whether or not to grant a hearing on the motion." Id. at 496. We went on to hold that:

[when] a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing. However, [1] if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or [2] presents only conclusionary allegations, or [3] if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing.

Id. at 497-98.

¶ 53. Two years later, the defendant in Levesque also sought to withdraw his guilty plea because, first, the facts allegedly did not support the defendant's guilt, and, second, because the court allegedly did not ascertain that the defendant understood the nature of the charged offense. According to the defendant, both deficiencies were a result of the court's misconstruction of the elements of burglary. 63 Wis. 2d at 418. We first concluded that the court correctly interpreted the elements of burglary. Id. at 415, 418. We then turned our attention to the defendant's claim that, at the time of the plea hearing, he was unable to understand the proceedings due to mental disease or defect. Relying on Nelson, we reasoned that "the [defendant] cannot stand on conclusory allegations, hoping to supplement them at a hearing." Id. at 421. Because the defendant failed to allege more than ultimate facts, we held that the circuit court properly denied the defendant an evidentiary hearing. Id. at 421-22.

¶ 54. The State's assertion that courts are not required to hold an evidentiary hearing when a defendant merely alleges that he or she does not understand important information when entering a plea might be dismissed if it relied solely on these two cases. Both Nelson and Levesque are distinguishable on the basis that they predate the advent of the burden-shifting framework announced in Bangert. However, this court relied on both Nelson and Levesque in Bentley when it rejected a defendant's argument that he was entitled to an evidentiary hearing based on a claim of ineffective assistance of counsel. Bentley, 201 Wis. 2d at 306. Consequently, additional analysis is required.

¶ 55. In Bentley, the defendant moved to withdraw his guilty plea on grounds that his attorney erroneously advised him about the minimum eligibility date for parole. Id. at 307. In assessing the viability of the defendant's claim, we employed the test from Nelson in order to determine whether the court was required to hold a hearing on the plea withdrawal motion. Id. at 309. We interpreted Nelson to provide "a two-part test which necessitates a mixed standard of appellate review." Id. at 310. "If the motion on its face alleges facts which would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing." Id. (citing Nelson, 54 Wis. 2d at 497). "However, if the motion fails to allege sufficient facts, the circuit court has the discretion to deny a postconviction motion without a hearing based on any one of the three factors enumerated in Nelson." Id. at 310-11; see also Nelson, 54 Wis. 2d at 497-98; ¶ 52, supra.

¶ 56. We conclude that Bangert and Bentley, although different, are not inconsistent. They are not inconsistent because they apply to different fact situations. Both cases deal with a defendant's motion to withdraw a plea. Both deal with requests for an eviden-tiary hearing. Both assign to the defendant the burden of making a showing that an evidentiary hearing is required.

¶ 57. We see several distinctions in the Bangert-type case. First, the defendant must point to a specific defect in the plea hearing which constitutes an error by the court. The defendant will not satisfy this burden merely by alleging that "the plea colloquy was defective" or "the court failed to conform to its mandatory duties during the plea colloquy." The defendant must make specific allegations such as "at no point during the plea colloquy did the court explain that it was not bound by the plea bargain and was free to disregard the prosecutor's sentencing recommendation." In addition, the defendant must allege that he did not in fact understand that the court was not bound by the plea agreement because that information/explanation was not provided. We think a motion of this nature passes the test of Nelson and Bentley: a motion to withdraw a plea that alleges facts which, if true, would entitle the defendant to relief. The allegation that the defendant did not understand is, admittedly, conclusory; but the allegation raises a question of fact and perhaps law that requires resolution.

¶ 58. The allegation that a defendant did not understand something is qualitatively different from the allegation of a legal conclusion such as "counsel's performance was deficient and resulted in prejudice to the defendant," or "the defendant's plea was not voluntary." These legal conclusions cry out for supporting facts, and these supporting facts must be alleged to satisfy the defendant's burden for an evidentiary hearing.

¶ 59. "The nature and specificity of the required supporting facts will necessarily differ from case to case." Bentley, 201 Wis. 2d at 314. For instance, in the case of a White violation, it is relatively easy to point to the discussion of the plea agreement in the plea hearing transcript and show that there was no reference to the fact that the court is not bound by the terms of the plea agreement. It would be considerably more difficult to expand on an allegation that the defendant did not understand information that was not conveyed to him.

¶ 60. By contrast, the Bentley court explained that normally a defendant is entitled to withdraw a guilty plea after sentencing only upon a showing of "manifest injustice by clear and convincing evidence." Bentley, 201 Wis. 2d at 311. When, for example, the basis for this injustice is an allegation that defendant involuntarily entered a plea because of the ineffective assistance of counsel, his claim raises questions about both deficient performance and prejudice. Id. at 311-12. To establish deficient performance, a defendant must necessarily provide the factual basis for the court to make a legal determination. To show prejudice, a defendant must do more than merely allege that he would have pleaded differently but for the alleged deficient performance. He must support that allegation with "objective factual assertions." Id. at 313.

¶ 61. Bangert-type violations should be apparent from the record. Bentley-type allegations will often depend on facts outside the record. To ask the court to examine facts outside the record in an evidentiary hearing requires a particularized motion with sufficient supporting facts to warrant the undertaking.

¶ 62. There is a second distinction between Bangert-type cases and Bentley-type cases. In Bangert-type cases, the defendant has the initial burden of showing the basis for a hearing; but if he succeeds, the burden shifts to the state to show by clear and convincing evidence that the defendant's plea was knowingly, voluntarily, and intelligently entered. Bangert, 131 Wis. 2d at 274.

¶ 63. In Bentley-type cases, the defendant has the burden of making a prima facie case for an evidentiary hearing, and if he succeeds, he still has the burden of proving all the elements of the alleged error, such as deficient performance and prejudice. The defendant must prove the linkage between his plea and the purported defect. The defendant's proof must add up to manifest injustice.

¶ 64. Consequently, the requisite specificity required for establishing a prima facie case mirrors the defendant's ultimate burden of proof. It also reflects the substantive basis for this court's shift of the burden of proof.

¶ 65. Finally, if the Bangert-type case requires something less to support the defendant's allegation of his understanding at the time of plea, it must be remembered that the court can head off the problem with a sufficient plea colloquy. For instance, the best defense against an allegation that the defendant did not understand the court's role in sentencing in the wake of a plea agreement, is an explicit colloquy in the transcript of the plea hearing establishing that the defendant understood the court was not bound by the terms of the plea agreement. In sum, the court has the means to -virtually eliminate this ground for plea withdrawal. Requiring an evidentiary hearing in the face of a supported allegation that the plea colloquy was defective is an effective means of enforcing the court's plea taking obligations.

V APPLICATION

¶ 66. We now turn our attention to applying the above principles to Hampton's request for an eviden-tiary hearing. It is undisputed that the circuit court did not advise Hampton that it was not bound by the plea agreement by expressly communicating this information to Hampton at the plea hearing. The court never asked Hampton if he understood that the court was not bound by the plea agreement. Thus, the plea colloquy was deficient for failing to comply with the requirements of White. Because Hampton also alleged that he did not understand that the court was not bound by the prosecutor's sentence recommendation, he made the requisite showing and is entitled to an evidentiary hearing.

¶ 67. The State contends that the circuit court complied with the requirements set forth in White despite the absence of an express statement indicating that the court was not bound by the plea agreement. The State's argument rests on subtle linguistic distinctions, the court's repeated reference to the prosecutor's recommendation of seven years imposed and stayed as only a "recommendation," and the court's repeated recitation of the maximum possible penalty. As we understand the State's position, when we required in White that "the court must advise the defendant personally," the word "personally," because of its position within the sentence, should be read to modify "defendant," not the "court," the inference being that the information should be received by the defendant in person. The State sees White as requiring only that the defendant himself be advised, and this was accomplished by the pre-sentence questionnaire and the court's repeated reference to "recommendation."

¶ 68. The State also argues that the word "advise" carries the generally accepted meaning "to inform," which requires only that the judge make sure a defendant is aware that the court is not bound by the plea agreement. It contends that to repeat information that the court believes the defendant has already heard is not to advise, but to reiterate. Here, the State says, the court asked Hampton whether he had reviewed the plea questionnaire form, and the defendant acknowledged that it had been read to him by his attorney and that he had signed the form. Thus, by the State's analysis, the court ensured that Hampton had been previously given this information, and therefore had ensured that Hampton had been advised.

¶ 69. We reject this argument. The circuit court cannot satisfy its duty by inferring from the plea questionnaire or from something said at the plea hearing or elsewhere that the defendant understands that the court is not bound by the plea agreement. The court must make certain through dialogue that the defendant understands that the court is not bound by other people's promises. The plea questionnaire may be used to aid the court (or the prosecutor or defense counsel) in explaining, on the record at the plea hearing, the court's role in sentencing. But the court must ask the question that ascertains that the defendant understands what he has been told.

¶ 70. Finally, the State relies on the circuit court's repeated use of the word "recommendation" and the reference to the maximum penalty as fulfilling the court's duty to advise the defendant. We agree that a plausible inference may be drawn from the repeated reference to "recommendation" that Hampton understood that the court was not bound by the plea agreement. But contrary inferences may be drawn from other parts of the record. The State is free to present its evidence to meet its burden of persuasion at the eviden-tiary hearing. In every instance where the requisite showing is made that the defendant was not properly advised at the plea hearing, and the defendant asserts he was unaware that the court could exceed the negotiated sentencing recommendation, there is a genuine issue of material fact which must be resolved at an evidentiary hearing.

¶ 71. We are not persuaded by the State's position that the court fulfilled its duty under White in this instance. The requirement that the court advise the defendant that it is not bound by the plea agreement is neither cumbersome nor complicated. As is plain from the burden-shifting remedy created by Bangert, we seek to "encourage the prosecution in a plea hearing proceeding to assist the trial court in meeting its . . . obligations." Bangert, 131 Wis. 2d at 275. This case likely represents the rare instance where both the court and the prosecution inadvertently overlooked a duty that the court must discharge.

¶ 72. The State has offered several arguments as to why the defendant in fact understood that the court was not bound by the plea agreement. This case, however, is not really about Corey Hampton's understanding at the time of his plea. It is about the circumstances under which a defendant is entitled to an evidentiary hearing when the court errs at a plea hearing. We hold that Hampton is entitled to an eviden-tiary hearing on his motion. At the hearing the State will have the opportunity to prove that Hampton was aware in fact that the court was not bound by the terms of the plea agreement. We affirm the court of appeals and order that this matter be remanded to the circuit court to conduct an evidentiary hearing in compliance with our decision in Bangert.

VI. CONCLUSION

¶ 73. Today, we reaffirm that where the court is aware of a plea agreement, the court must advise the defendant personally that the court is not bound by the terms of that agreement and ascertain that the defendant understands this information. Further, we hold that the remedial measures specified in Bangert apply in this instance. When the defendant shows that the court failed to inform the defendant that it was not bound by the plea agreement, and the defendant alleges that he did not understand that the court was not bound, the defendant is entitled to an evidentiary hearing. In this instance, the circuit court failed to advise Hampton that it was not bound by the plea agreement, and Hampton has alleged that he did not understand this fact; therefore, Hampton is entitled to have an evidentiary hearing on his motion to withdraw the plea. We affirm the decision of the court of appeals, and remand the matter for an evidentiary hearing.

By the Court. — The decision of the court of appeals is affirmed, and the cause is remanded to the circuit court for proceedings consistent with this opinion.

¶ 74. PATIENCE D. ROGGENSACK, J., did not participate.

All work on this opinion was completed on or before June 30, 2004. Justice Diane S. Sykes resigned on July 4, 2004.

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

        See North Carolina v. Alford, 400 U.S. 25 (1970).

       Hampton in fact filed two postconviction motions. The first, heard by Circuit Judge Mel Flanagan, was rejected without an evidentiary hearing. Hampton filed an appeal which he then voluntarily dismissed. He subsequently filed a second postconviction motion to withdraw his plea, which was assigned to Circuit Judge Dennis Moroney. This motion was also denied without an evidentiary hearing. Both judges filed written explanations of their decisions. Judge Moroney's order denying Hampton's motion for postconviction relief superseded Judge Flanagan's order. We therefore discuss the issues as they relate to the second order.

       Wisconsin Stat. § 971.08 (2001-02) provides in part:
      971.08 Pleas of guilty and no contest; withdrawal thereof. (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
      (a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
      (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
      (c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.

       The State argues that "a court is not even obligated to inquire whether such [a plea agreement] exists," and therefore a court "should not be charged with the duty to inform the defendant it is not bound by the negotiated plea agreement." In State v. Lee, the case the State cites for this proposition, we indeed "decline[d] to make it mandatory that, upon a plea of guilty or no contest, a court specifically ask whether there have been any plea negotiations or agreements or whether the state has promised to make any recommendations." 88 Wis. 2d 239, 251, 276 N.W.2d 268 (1979). However, our holding did not obviate a court's duty to inquire "whether any promises or threats have been made... in connection with the proposed plea." Id. In Lee, the court complied with the holdings of this court when it inquired whether there had been any promises made by the prosecution; the defendant, however, answered in the negative despite the fact that the prosecutor had agreed to recommend a reduced sentence. Id. at 242. The court in that instance could not have been expected to follow up with questions regarding the terms of a plea agreement that it was told did not exist, and it would have required superior powers of prognostication for the court to have advised the defendant that it was not bound by a plea agreement of which it had no knowledge.
      It should also be noted that the Lee case was decided in 1979, more than seven years before State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

       We have also reiterated that the court is to abide by the standards of § 1.5 of the ABA Standard Relating to Guilty Pleas. See Melby v. State, 70 Wis. 2d 368, 385, 234 N.W.2d 634 (1975) (noting that the circuit court must inquire into voluntariness of plea in accordance with American Bar Association, Standards Relating to Pleas of Guilty, Approved Draft, § 1.5 cmt. (1968)).

       For a discussion of plea withdrawal when a court fails to comply with the procedures of Wis. Stat. § 971.08(l)(c), see State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1.


author: CANE, C.J.

text:
    Julie Ann Walberg, as Special Administrator for the Estate of Lucille Genevieve Yox, Deceased, Plaintiff-Appellant, v. St. Francis Home, Inc. and Catholic Charities Bureau, Inc., Defendants-Respondents.

    Court of Appeals

      No. 03-2164.

      Submitted on briefs April 20, 2004.

    Decided May 4, 2004.

    2004 WI App 120
    (Also reported in 683 N.W.2d 518.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Keith J. Peterson of Superior, and David L. Weidt of Duluth, MN.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Kenneth A. Knudson and Tony Breidenbach oí Knudson, Gee & Torvinen, S.C. of Superior.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review granted 9-16-04.

   CANE, C.J.

¶ 1. Julie Ann Walberg, as special administrator for the Estate of Lucille Genevieve Yox, appeals an order dismissing her negligence and breach of contract claims against St. Francis Home, Inc., and Catholic Charities Bureau, Inc. Walberg argues the trial court erred by concluding Yox's claims were time-barred under Wis. Stat. § 893.22. We agree and therefore the order dismissing the claims is reversed.

Background

¶ 2. The necessary facts are undisputed. Between March 29, 1994, and December 3, 1996, Yox was a resident of St. Francis Home. At all material times and until her death on August 15, 2000, Yox suffered from Alzheimer's disease. All parties agree this constitutes a "mental illness" for purposes of Wis. Stat. § 893.16, the "person under disability" statute of limitations. See Storm v. Legion Ins. Co., 2003 WI 120, ¶ 46, 265 Wis. 2d 169, 665 N.W.2d 353 ("[A] 'mental illness' [under § 893.16(1)] is a mental condition that renders a person functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert legal rights or functionally unable to understand legal rights and appreciate the need to assert them.").

¶ 3. On August 12, 2002, Walberg was appointed special administrator for Yox's estate and, on that date, she commenced an action against St. Francis and Catholic Charities claiming negligence for personal injuries Yox sustained while at St. Francis and breach of contract for St. Francis' substandard care during Yox's time at the facility. St. Francis asserted, among other defenses, that the action was time-barred and later filed a motion to dismiss.

¶ 4. The trial court granted the motion, concluding the relevant statute of limitations was not two years from Yox's death under Wis. Stat. § 893.16 as Walberg advanced, but instead was one year from Yox's death under Wis. Stat. § 893.22. Thus, the court concluded her August 2002 action was time-barred. Walberg appeals.

Discussion

¶ 5. We review a motion to dismiss de novo. Turkow v. DNR, 216 Wis. 2d 273, 280, 576 N.W.2d 288 (Ct. App. 1998). We accept all alleged facts and reasonable inferences as true, but draw all legal conclusions independently. Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995). Further, statutory interpretation is a question of law we review de novo. German v. DOT, 2000 WI 62, ¶ 7, 235 Wis. 2d 576, 612 N.W.2d 50. The goal of statutory interpretation is to discern the legislature's intent. State v. Byers, 2003 WI 86, ¶ 13, 263 Wis. 2d 113, 665 N.W.2d 729.

¶ 6. Walberg argues the trial court erred by concluding the one-year statute of limitations under Wis. Stat. § 893.22 applied to bar the action. Section 893.22 states in part:

Limitation in case of death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the person's representatives after the expiration of that time and within one year from the person's death.

The trial court concluded that, upon a person's death, this statute automatically shortened the period of limitations for any of that person's existing claims to one year, causing the estate's action to be time-barred. We disagree.

¶ 7. In Curran v. Witter, 68 Wis. 16, 22, 31 N.W. 705 (1887), the supreme court interpreted the predecessor to Wis. Stat. § 893-22 and held, "It is obvious that this provision only reaches a case where the person entitled to bring the action dies during the last year of the term of limitation." That is, § 893.22 applies only when a person dies with an existing claim that has less than one year remaining on the period of limitations. In that case, the period of limitations is extended up to one year, which begins to run upon the person's death. Thus, in situations where a cause of action has more than one year remaining under its statute of limitations, § 893.22 simply does not apply.

¶ 8. Here, Wis. Stat. § 893.22 does not apply because Yox's claims could not have had less than one year remaining on their periods of limitations. It is undisputed that Yox suffered from a mental illness at the time her claims accrued and, therefore, Wis. Stat. § 893.16 tolled her claims' periods of limitations. Section 893.16 states in relevant part:

Person under disability. (1) If a person entitled to bring an action is, at the time the cause of action accrues ... mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.
(2) Subsection (1) does not shorten a period of limitation otherwise prescribed.

A plain reading of this statute reveals it operates differently in situations where the person's mental disability does or does not cease. However, we need not decide whether Yox's death constitutes a cessation of her disability because in either situation the claims are timely.

¶ 9. When a person's mental disability does not cease, Wis. Stat. § 893.16(1) provides that the underlying period of limitations remains tolled, but cannot be extended for more than five years. Thus, a disabled person has up to eleven years to commence a contract action and up to eight years to commence a negligence action for injury to the person. See Wis. Stat. § 893.43 (six-year statute of limitations for contract action); Wis. Stat. § 893.54 (three-year statute of limitations for injury to the person); see also Storm, 265 Wis. 2d 169, ¶ 24.

¶ 10. As already noted, the parties seem to agree the claims accrued on December 3, 1996. Applying Wis. Stat. § 893.16, if Yox's death did not cause her disability to cease, as St. Francis contends, Walberg had until December 3, 2007, to bring the contract action and until December 3, 2004, to bring the negligence action. See Pufahl v. Williams, 179 Wis. 2d 104, 107, 506 N.W.2d 747 (1993) (day upon which a cause of action accrues is not included in computing the period of limitation). Thus, in this scenario, as of Yox's death on August 15, 2000, neither claim could have been in the final year of the limitations period. Therefore, Wis. Stat. § 893.22 does not apply, and the claims commenced on August 12, 2002, are timely.

¶ 11. When the person's mental disability ceases, the person must commence the action within two years after cessation of the disability. However, there are two caveats: (1) the underlying period of limitations still cannot be extended more than five years, see Wis. Stat. § 893.16(1), and (2) the underlying period of limitations cannot be shortened, see § 893.16(2).

¶ 12. If Yox's death on August 15, 2000, caused her disability to cease, as Walberg contends, Walberg had until August 15, 2002, to commence the negligence claim, since neither of Wis. Stat. § 893.16's caveats would be violated. However, as to the contract claim, Walberg was not required to commence the claim by August 15, 2002, because such a requirement would shorten the underlying six-year contract statute of limitations by just over three-and-a-half months. Section 893.16(2) prohibits this result. Hence, Walberg retained the full six-year contract statute of limitations and, therefore, had until December 3, 2002, to commence the contract action. Thus, in this scenario as well, neither of Walberg's claims was in the final year of their limitations period. Therefore, Wis. Stat. § 893.22 does not apply, and the claims commenced on August 12, 2002, are still timely.

¶ 13. Consequently, we need not decide whether death constitutes a cessation of Yox's disability for purposes of Wis. Stat. § 893.16(1). Regardless of whether it does, the claims were timely commenced, and Wis. Stat. § 893.22 cannot apply. The order dismissing Walberg's claims is reversed.

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

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

       The complaint alleges St. Francis did not provide an adequate level of care between March 29, 1994, and December 3, 1996, and that such failure forms a basis for negligence and breach of contract claims. All parties seem to agree that these claims would have accrued on December 3, 1996, absent Yox's mental illness.

       Aside from immaterial grammatical and syntactical changes, the statute the supreme court interpreted, Revised Stat. § 4222, is identical to Wis. Stat. § 893.22. Revised Stat. § 4222 stated:

        if a person entitled to bring action die[s] before the expiration of the time limited for the commencement thereof, and the cause of action survive[s], an action may be commenced by his representatives after the expiration of that time, and within one year from his death.

       St. Francis contends Curran v. Witter, 68 Wis. 16, 31 N.W. 705 (1887), should not apply, arguing that nothing in the language of the statute then interpreted, or at issue here, requires what Curran held. We have two responses to this argument. First, we are bound by supreme court precedent, even if it is over a century old. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Second, Cook notwithstanding, we would not be persuaded by St. Francis's argument. Looking at the language of the current statute, Wis. Stat. § 893.22, there are three threshold requirements that must be met: (1) that a person dies, (2) before the expiration of the time limited for the commencement of an action, and (3) the cause of action survives the person's death.
      Supposing these requirements are met, the statute states the action can then be commenced only when two criteria are satisfied: (1) whatever time remaining under the action's statute of limitations passes, and (2) the action is commenced within one year. The "obvious[ness]" of Curran's holding lies in the interplay of these two criteria: if the action must be commenced within one year and the remaining time under the action's statute of limitations must have passed, then it necessarily follows that the remaining time under the action's statute of limitations must be less than one year. Curran's holding does not add a gloss to what is now § 893.22, but only clarifies the peculiar wording of the statute and, once clarified, the holding is indeed obvious.

       While it may seem peculiar that St. Francis would make this argument, given that it enlarges the time Walberg had to commence the action, it made the argument assuming Wis. Stat. § 893.22 barred Walberg's claims.
      In any event, St. Francis looks to other provisions in the limitations chapter to support its argument and points out that Wis. Stat. § 893.17(2m) explicitly distinguishes death from cessation of disability. That section states:
      An action under sub. (2) may be commenced or entry or defense made, after the time limited and within 5 years after the disability ceases or the person entitled dies, if the person dies while under the disability, but the action shall not be commenced or entry or defense made after that period. (Emphasis added.)
      Thus, St. Francis argues "it is clear that death was not contemplated as a way to cease a disability under Wis. Stat. § 893.16(1). Conversely, if the legislature intended death to equal the cessation of a disability, then it would not have had to insert the 'or the person entitled dies' language after 'disability ceases' [in § 893.17(2m)]."

       To support her claim that death constitutes a cessation of disability, Walberg appeals to common sense, noting that if death does not cause the disability to cease, then, peculiarly, a person's disability somehow survives the person's death. Wal-berg also directs us to 54 C.J.S. Limitations of Actions § 119 (1987), and the cases cited therein, which indicates death indeed correlates with cessation of a disability. That section states:
      Under a saving clause in favor of minors or insane persons, suspending the operation of the statute of limitations or granting a special time within which suits may be brought after the removal of the disability, it has been held that the death of the person under disability is a removal of the disability within the meaning of the statute, and hence that his or her heirs or personal representatives must bring suit within the period limited after the ancestor's death. (Emphasis added; footnotes omitted.)


author: BROWN, J. NETTESHEIM, J.

text:
    Lawrence A. Kruckenberg, Plaintiff-Appellant, v. Paul S. Harvey, Defendant-Respondent.
    Court of Appeals

      No. 03-1813.

      Submitted on briefs March 22, 2004.

    Decided May 5, 2004.

    2004 WI App 133
    (Also reported in 685 N.W.2d 844.)

      Nettesheim, J., concurrs in part and dissents in part.
    On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí William H. Gergen of Gergen, Gergen & Pretto, S.C. of Beaver Dam.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jim D. Scott of Wood Law Offices, LLC of Oxford.
    Before Brown, Nettesheim and Snyder, JJ.

       Petition to review granted 9-16-04.

   BROWN, J.

¶ 1. This case is a dispute over a property line and the duty of lateral support of soil as between adjoining property owners. Lawrence A. Kruckenberg argues that the trial court erred in applying the doctrines of claim preclusion to his claim for a declaratory judgment with respect to the property line and issue preclusion to his claim of lack of lateral support. We hold that a 1982 action between Paul S. Harvey and Donald A. Czyzewski, the individual from whom Kruckenberg bought the property, precludes Kruckenberg's present action. We therefore affirm the trial court's grant of summary judgment in favor of Harvey and its order denying Kruckenberg's motion for reconsideration.

¶ 2. In 1982, Harvey excavated a drainage ditch along what he assumed to be the northern border of his property, which adjoined Czyzewski's property. Czyze-wski filed suit, alleging that the excavation "caused the line fence between plaintiff and defendant to collapse" and that the excavation was a breach of Harvey's duty to "maintain a line fence." The complaint further alleged that the excavation breached Harvey's duty for lateral support, lowered the water level on Czyzewski's property and caused erosion.

¶ 3. The parties resolved the dispute by a stipulation. Harvey agreed to pay $1500 in damages and to plant rye grass along the drainage ditch. The parties further agreed that the action would be dismissed "on its merits." The circuit court acknowledged the stipulation, ordered Harvey to plant rye grass "when the weather permits" and dismissed the matter "on its merits" in April 1983.

¶ 4. Kruckenberg, without knowledge of the lawsuit between Harvey and Czyzewski, purchased the property shortly after the lawsuit settled. In 2001, Kruckenberg filed a complaint against Harvey, stating three causes of action (1) trespass and conversion, (2) declaratory judgment with respect to the location of the lot line, and (3) failure to provide lateral support. Kruckenberg alleged that according to a survey he had commissioned, Harvey's ditch was on his property. In his answer, Harvey raised several defenses, including the doctrines of claim and issue preclusion, and filed a counterclaim for adverse possession, seeking to relocate the lot line so that it comported with the fence line and asking the court to enjoin Kruckenberg from trespassing on his property. Kruckenberg moved for summary judgment.

¶ 5. The circuit court did not reach the substance of Kruckenberg's summary judgment motion. Instead, the court found that the Czyzewski case barred Kruckenberg's claims for declaratory judgment regarding the lot line and failure to provide lateral support. The court found that the parties to the Czyzewski case acknowledged that the fence line was the line of demarcation between the lots and thus that the doctrine of claim preclusion barred Kruckenberg's declaratory judgment action and mooted the trespass and conversion claims. The court extended its claim preclusion ruling to Harvey's counterclaim for adverse possession. The court further found that the issue of lateral support was in fact litigated and resolved in the 1982 lawsuit, even if the erosion was occurring for a different reason today than it had been in 1982, and therefore that the doctrine of issue preclusion barred Kruckenberg's action for lateral support. Accordingly, the circuit court, on its own motion, granted summary judgment in favor of Harvey based on claim preclusion and issue preclusion. The circuit court held an additional hearing on reconsideration and again found in favor of Harvey. Kruckenberg appeals.

¶ 6. A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2) (2001-02). Our review of the circuit court's grant of summary judgment based on claim or issue preclusion is de novo. See Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995).

¶ 7. We will first address what we understand to be Kruckenberg's arguments concerning the circuit court's application of claim preclusion to his request for declaratory judgment with respect to the lot line. Then, we will turn to Kruckenberg's challenge to the circuit court's application of issue preclusion to his claim for lack of lateral support.

¶ 8. Under claim preclusion, a final judgment in an earlier matter is conclusive upon the parties in that earlier matter and those in privity with those parties, and the final judgment governs all issues that were either litigated or might have been litigated. Jensen v. Milwaukee Mut. Ins. Co., 204 Wis. 2d 231, 235, 554 N.W.2d 232 (Ct. App. 1996). The following factors must be present for claim preclusion to bar an action before the court: "(1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and, (3) a final judgment on the merits in a court of competent jurisdiction." Northern States Power Co., 189 Wis. 2d at 551. However, even where these requirements are satisfied, the ultimate application of claim or issue preclusion must also satisfy the additional factor of fairness. See Steffen v. Luecht, 2000 WI App 56, ¶ 28, 233 Wis. 2d 475, 608 N.W.2d 713.

¶ 9. Kruckenberg does not appear to dispute that because he is a successor in interest to Czyzewski to the same property that was the subject of the prior litigation, the identity of parties factor — the first claim preclusion factor — is satisfied. See Restatement (second) of Judgments § 43 (1982) ("A judgment in an action that determines interests in real or personal property. . . [w]ith respect to the property involved in the action . . . [h]as preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself."); see also S.S. Kresge Co. v. Garrick Realty Co., 209 Wis. 305, 310-11, 245 N.W. 118 (1932) (adjudication that one party was not using party wall held res judicata and binding on party's successor in title). Rather, distilled to its essence, Kruckenberg's brief consists of the several claims regarding the second and third claim preclusion factors. We address and reject each of these claims in seriatim.

¶ 10. First, Kruckenberg maintains that the circuit court erred in concluding that the 1982 stipulation and order concerned the proper location of the lot line and therefore that Harvey had established an identity of claims, the second claim preclusion factor. He seems to assert that the issue was never really before the court in 1982 and that the parties simply "acquiesced" to the idea that the fence was on the property line without actually arguing about it. He appears to claim that for the location of the lot line to really have been at issue, Czyzewski would have had to assert an adverse possession claim on Harvey's behalf and then concede that Harvey owned the property in question. Kruckenberg then apparently maintains that since adverse possession was not ripe in 1982, Czyzewski could not have raised the issue. Thus, according to Kruckenberg, the whole issue of lot line location was premature in 1982 and not a proper subject that could have been joined at that time.

¶ 11. In sum, Kruckenberg seems to argue that the issue of the lot line location was never argued nor could it have been argued and therefore claim preclusion does not apply. Kruckenberg misunderstands the doctrine of claim preclusion and the nature of the previous action.

¶ 12. Kruckenberg's argument is premised on the notion that in order to satisfy the second claim preclusion factor — the identity of claims — the parties in the previous action must have not only recognized that the lot line was an issue, but also actually disputed the proper location of the lot line. That is not the law. The claim sought to be litigated in the present action need not have been actually litigated in the prior action as long as it could have been litigated in that action. DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883 (1983). Further, we use a transactional analysis to determine whether a matter could have been litigated in the former proceeding. Parks v. City of Madison, 171 Wis. 2d 730, 735, 492 N.W.2d 365 (Ct. App. 1992). Under this analysis, all claims arising out of the same transaction or factual situation are treated as a single cause of action and must be litigated together. Id. A claim arising out of the same transaction is barred even though the party in the second action is prepared with different evidence or theories of the case or intends to seek another form of relief. Id. Accordingly, for the doctrine of claim preclusion to apply, the proponent need not establish that the parties explicitly acknowledged the existence of the issue or actually disputed the issue in the prior litigation; rather, the proponent need only demonstrate that the claim arises from the same factual situation and that it could have been litigated.

¶ 13. We now turn to Kruckenberg's characterization of the nature of Czyzewski's action. Although Kruckenberg is correct that Czyzewski did not specifically challenge the boundary between the properties, his assertion that the location of the lot line was not an issue in the 1982 action is simply wrong.

¶ 14. Czyzewski alleged, inter alia, that Harvey had breached his duty to maintain a "line fence." The circuit court in this case correctly noted that the term "line fence" is a legal term of art used to describe a fence running along a property line. See, e.g., Hoff v. Olson, 101 Wis. 118, 122, 76 N.W. 1121 (1898) ("The fence in question is alleged to be on the line between the parties, and is a regular partition fence. In the absence of allegation as to a legal division of a line fence, the presumption as to ownership is that it is the common property of the adjoining owners."). Thus, as the circuit court recognized, Czyzewski's action for lateral support would have required him to establish and prove the demarcation of the lot line as an element of his claim. Even though the parties ultimately settled the case (which at least implicitly concedes that the demarcation of the lot line had been resolved as between those parties), the fact remains that the location of the lot line was an element in the prior case and, as a result, the issue could have been joined.

¶ 15. While Kruckenberg's theory of relief, a declaratory judgment action, is different than Czyzewski's action for lack of lateral support, the underlying issue in this case — the location of the lot line — was an element to be proven in the 1982 case. Because the location of the lot line was an element to be proven in the 1982 case, the parties were in a position to litigate the issue had they chosen to do so. As we discussed earlier, this is all that is needed to satisfy the identity of claims requirement. We, therefore, reject Kruckenberg's first challenge to the application of the doctrine of claim preclusion.

¶ 16. Second, Kruckenberg claims that, even assuming that he is wrong about his contention that the lot line issue was not before the court in 1982, he claims it was based on a mistake of fact by both parties, Czyzewski, in particular. Therefore, the acquiescence to the location of the lot line cannot inure to his detriment. This argument implies that mistake of fact is a recognized exception to claim preclusion. Kruckenberg does not provide any authority in support of this argument and we cannot find any. Indeed, the Restatement (Second) of Judgments suggests otherwise. See Restatement (Second) of Judgments § 43 (1982) ("A judgment in an action that determines interests in real or personal property. . . [conclusively determines the claims of the parties to the action regarding their interests."). Kruckenberg's argument fails.

¶ 17. Third, Kruckenberg expands on his use of the word "acquiescence" by contending that the circuit court's grant of summary judgment to Harvey was, in reality, not a claim preclusion decision, but a legal decision that Kruckenberg himself had "acquiesced" to this property line by his prior inaction. In this vein, Kruckenberg is attempting to put words in the circuit court's mouth. The circuit court never entertained such a theory, much less decided the case on that ground. What really happened is that Harvey's answer to Kruckenberg's complaint was bottomed on claim preclusion and issue preclusion grounds and that is exactly what the circuit court ruled on. As we previously discussed, the circuit court correctly found that the location of the lot line was at issue and had been decided in the 1982 case and therefore applied claim preclusion to Kruckenberg's action. Once again, Kruckenberg's argument must fail.

¶ 18. Finally, Kruckenberg invokes the third claim preclusion factor and briefly argues that claim preclusion cannot apply because the 1982 lawsuit was resolved by stipulation. In doing so, he relies on a line of cases, chiefly Bishop v. McGillis, 82 Wis. 120, 51 N.W. 1075 (1892), for the proposition that a dismissal based on a stipulation does not satisfy the third claim preclusion factor requiring a "final judgment on the merits." However, this line of cases applies where the dismissal was not on the merits. See, e.g., Mayer v. Mayer, 29 Wis. 2d 497, 505-06, 139 N.W.2d 111 (1966) (dismissal of proceedings for removal of executors would not bar issues raised by new petition seeking their removal, since the order of dismissal did not purport to pass on merits of original petition). Furthermore, it is well established that a stipulation between parties and approved by the court can form the basis for a final judgment. See, e.g., Great Lakes Trucking Co., Inc. v. Black, 165 Wis. 2d 162, 168-69, 477 N.W.2d 65 (Ct. App. 1991); Werner v. Riemer, 255 Wis. 386, 401-03, 39 N.W.2d 457 (1949).

¶ 19. Here, in the 1982 suit, the parties resolved all the disputed issues between them, including agreeing to damages and an appropriate remedy. The parties specifically agreed to a dismissal of the action on its merits. The parties’ stipulation was then reduced to an order dismissing the action "on its merits." Such an order is conclusive, in a subsequent action between the same parties, as to all matters which were litigated or which might have been litigated in the former proceedings. See Werner, 255 Wis. at 401-03. As a result, Kruckenberg, a successor in interest to Czyzewski, is precluded by the dismissal upon the merits of the 1982 action from relitigating the lot line issue.

¶ 20. As we indicated previously, even when the threshold requirements for claim preclusion are satisfied we still must determine whether the application of the doctrine is fair to Kruckenberg. We conclude that it is. Clearly, Czyzewski would have been required to establish the lot line had the matter gone to trial. Presumably, he would have been required to supply a survey establishing the lot line unless Harvey conceded the fact. But whether the fact was to be proven or conceded, the findings of fact, conclusions of law and judgment would have reflected a finding of fact concerning the lot line. By settling the matter on the merits, Harvey and Czyzewski functionally litigated the question of the location of the lot line. The purpose of the doctrine of claim preclusion is to prevent repetitive litigation. DePratt, 113 Wis. 2d at 311. Fairness to the defendant and sound judicial administration require that at some point litigation over the particular controversy must come to an end. Id. Given that Harvey has already been subjected to litigation that for all intents and purposes resolved the issue, we are satisfied that the purposes of claim preclusion and the considerations of fairness are served by the application of claim preclusion to Kruckenberg's claims.

¶ 21. We now turn to Kruckenberg's arguments regarding the trial court's application of issue preclusion to his claim for lack of lateral support. Krucken-berg does not directly dispute that the lateral support issue was squarely within the purview of the 1982 lawsuit. Instead, Kruckenberg argues both that Harvey is under a continuing duty to maintain rye grass in the area and he has not done so and that recent erosion constitutes a new injury permitting him to relitigate the lateral support issue.

¶ 22. Issue preclusion applies even though there is not an "identity of parties" in the earlier and later matters so long as the "issue of law or fact" for which preclusive effect is sought "has been actually litigated and decided in a prior action and reduced to judgment." Jensen, 204 Wis. 2d at 235. In the 1982 complaint, Czyzewski claimed that Harvey's excavation breached his "duty of lateral support." The duty to provide lateral support is ongoing. See Christensen v. Mann, 187 Wis. 567, 575-76, 204 N.W. 499 (1925). In recognition of that law, Czyzewski and Harvey resolved their dispute by requiring Harvey to plant rye grass one time "when the weather permits." Harvey complied with that stipulation. Obviously, Czyzewski was gambling that the planting of the rye grass would completely resolve the problem. That it did not would not have entitled Czyzewski to bring a new action regarding the erosion. The issue of lack of support had already been decided and reduced to a written order dismissing the case on the merits, which as we have already noted, stands as a final adjudication of the issue. Issue preclusion similarly binds Kruckenberg. Further, we fail to see how application of the doctrine of issue preclusion under these circumstances would violate the principles of fundamental fairness. Accordingly, we hold that the trial court properly applied the doctrine of issue preclusion to Kruckenberg's lack of lateral support claim.

By the Court. — Judgment and order affirmed.

NETTESHEIM, J.

(concurring in part; dissenting in part).

¶ 23. Although neither Czyzewski nor Harvey had any knowledge or suspicion that the fence line between their two properties did not represent the true lot line, the majority opinion holds that the settlement of Czyzewski’s prior claim against Harvey for failure to provide lateral support precludes Kruckenberg's present action for trespass and for a declaratory judgment as to the location of the lot line. I respectfully dissent from that holding.

¶ 24. Our supreme court has said that although the purposes underlying claim and issue preclusion are important, the courts do not blindly apply the doctrine. Sopha v. Owens-Corning Fiberglass Corp., 230 Wis. 2d 212, 235, 601 N.W.2d 627 (1999). "Wisconsin law does not treat [claim/issue preclusion] as an ironclad rule which must be implacably applied whenever its literal requirements are met, regardless of any countervailing considerations." Id. (citation omitted). In my judgment, the majority opinion represents an unduly rigid application of claim or issue preclusion. I would hold that the application of the doctrine against Kruckenberg does not pass the fairness test of the inquiry. See Precision Erecting, Inc. v. M&I Marshall & Isley Bank, 224 Wis. 2d 288, 304, 592 N.W.2d 5 (Ct. App. 1998).

¶ 25. Czyzewski's complaint against Harvey in the prior action was for lateral support, not a challenge of the location of the lot line. Similarly, Harvey's defense of the action did not dispute the location of the lot line. When the parties came to an agreement as to how Harvey could provide lateral support, the parties commendably settled the action short of trial.

¶ 26. One of the factors that bears upon a fairness determination in a claim or issue preclusion setting is whether there are significant differences in the quality or extensiveness of the two proceedings. Teriaca v. Milwaukee Employees' Ret. Sys., 2003 WI App 145, ¶ 13, 265 Wis. 2d 829, 667 N.W.2d 791. Here, the two proceedings were markedly different. The former was an action for lateral support in which the location of the lot line was never in dispute. Thus, the nature, quality and extensiveness of the prior proceeding did not address the location of the lot line in any meaningful way. However, in the instant action, the location of the lot line is the core dispute.

¶ 27. The actual, but unspoken, message of the majority opinion is that Czyzewski should have taken the case to trial to litigate the location of the lot line even though that matter was not in dispute and even though the parties had settled the only matter in dispute. Thus, the majority opinion produces a mock trial over a nonissue that neither party desired, together with the related expenditure of time, effort and money.

¶ 28. Another of the factors bearing upon a fairness determination in a claim or issue preclusion setting is whether there are matters of public policy and individual circumstances involved such that it would render the application of the doctrine fundamentally unfair, including whether the party against whom preclusion is sought had an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. Id. Reduced to its essence, the majority opinion penalizes Kruckenberg for Czyzewski's decision to settle the case. However, the law favors settlement over full-blown litigation. "Wisconsin courts look with great favor upon settlements of litigation." Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 622, 345 N.W.2d 874 (1984). The majority's unforgiving application of claim or issue preclusion strikes a blow against this sound policy. Once Harvey agreed to provide lateral support to Czyzewski's property producing a settlement of the lawsuit, neither Czyzewski nor Harvey had any incentive to continue the litigation over a matter not in dispute.

¶ 29. Wisconsin's public policy favoring settlements and the individual circumstances under which the prior action was settled tell me that it is unfair to apply claim or issue preclusion against Kruckenberg in this case. Under the majority opinion, litigants must now be wary of settlement, lest an uncontested issue that could have been litigated might come back to haunt. I respectfully dissent.

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

       The dissent argues that it is not fair to impose claim preclusion on Kruckenberg because the lot line was not in dispute in 1982. We have a different view of it. Czyzewski and Harvey had a dispute over that very same soil dividing the two properties over twenty years ago. Obviously, Czyzewski did not like how Harvey was tending to the property adjoining his. Now, twenty years later, Kruckenberg does not like how Harvey is tending to the adjoining property. But Kruckenberg is attacking Harvey based on a different theory of law — the theory being that he owns the property in dispute. That same theory was available to Czyzewski in the 1982 suit. That Czyzewski did not know he owned the property or was too complacent to order a survey is inconsequential. The fact of the matter is that Harvey was subject to a lawsuit about his use of the property once already. The law demands that he not be subject to a lawsuit again. To rule otherwise would be unfair to Harvey. For these reasons, we disagree with the dissent and instead agree with the trial court.

       In Sopha v. Owens-Corning Fiberglass Corp., 230 Wis. 2d 212, 601 N.W.2d 627 (1999), the supreme court was addressing claim preclusion. However, the same principles would apply in an issue preclusion setting.

       However, I fully agree with the majority's application of claim preclusion as to Kruckenberg's claim for lateral support.