source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Shon D. Brown, Defendant-Appellant.

    Court of Appeals

      No. 02-1000-CR.

      Submitted on briefs October 11, 2002.

      Decided January 2, 2003.

    2003 WI App 34
    (Also reported in 659 N.W.2d 110.)

      On behalf of the defendant-appellant,the cause was submitted on the briefs of Robert T Ruth of Ruth Law Office, Madison.
    On behalf of the plaintiff-respondent,the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and James E. Doyle, attorney general.
    Before Roggensack, Deininger and Lundsten, JJ.

       Petition to review denied 3-13-03.

   DEININGER, J.

¶ 1. Shori Brown appeals a judgment convicting him of operating a motor vehicle without the owner's consent (OMVWOC) and theft of movable property. He claims the trial court erred when it (1) excluded his proposed testimony because he had not given notice of an alibi, and (2) failed to instruct the jury on territorial jurisdiction. We are not persuaded that the trial court erred in either regard and we thus affirm the judgment and order.

BACKGROUND

¶ 2. The following facts were adduced at trial. A Madison moving company hired Brown as a truck driver. Shortly after being hired, he was assigned a moving job for a couple in Hartford, Wisconsin, to take their belongings to a storage location in Indianapolis, Indiana. The shipment consisted of all of the couple's household belongings. The wife was already staying with a relative in Indiana, having begun a new job there. Her husband followed after the household items were packed and loaded, taking with him only a few days' worth of clothes.

¶ 3. Brown's employer testified that Brown said he was very familiar with the area from his having lived in Indiana. Before his departure from Madison, the company gave him a cell phone and telephone contact numbers, and $250 cash to cover expenses. A motel room near Indianapolis had been reserved for him for the night of May 18th, and Brown was to deliver his shipment to the storage facility at 8:00 a.m. the next day. The storage facility notified Brown's employer on the morning of May 19th that Brown had not arrived with the shipment. Brown also had not checked in at the motel the night before. Brown's employer made repeated attempts to reach Brown on the cell phone, but no one answered the calls or the messages left on voice mail.

¶ 4. In addition to filing a police report, the employer contacted North American Van Lines, with whom it was affiliated. North American alerted agents and drivers nationwide to be on the lookout for what was now believed to be a stolen vehicle. Several days later a truck stop security guard in Gary, Indiana, notified the truck owner that he had spotted the vehicle. The security guard testified at trial that the driver had fueled the tractor-trailer and drove off without paying. The guard provided a description of the driver which resembled Brown, although he could not positively identify him as the driver.

¶ 5. The employer hired a private detective for several months but the detective was unable during that time to locate either Brown or the missing truck. The tractor-trailer was eventually located in November when a North American driver saw it at a truck stop in Gary, Indiana, approximately halfway between Madison and Indianapolis. The owners of the household goods recovered only some clothing, shoes, kitchenware, and photo albums. The moving company's insurer paid them more than $75,000 for the major possessions they had lost.

¶ 6. Brown was subsequently arrested and charged with three felonies: OMVWOC, theft by concealment of the tractor-trailer, and theft by concealment of the household goods. The Information charged that all three offenses were committed "in Dane County, Wisconsin, on or about May 19, 2000."

¶ 7. A jury was selected on a Monday for the trial which was set to begin on Thursday. After completing voir dire, the court and counsel made a record regarding an earlier "conference in chambers with the District Attorney and defense attorney regarding potential testimony of the defendant." The court characterized the defendant's proposed testimony as follows: "in essence that testimony was that he did have possession of the vehicle, left the vehicle at a truck stop and left the keys and left." Brown's counsel agreed that Brown wished to testify that "I drove the truck there and I abandoned it for better prospects." The State objected to Brown testifying in that manner, asserting that the testimony constituted an alibi for which Brown had not given notice under Wis. Stat. § 971.23(8) (1999-2000). In the State's view, Brown's proposed testimony was tantamount to his claiming "that he wasn't where the truck was concealed, and he wasn't with the truck as of May 19th and thereafter, which the State believes he was."

¶ 8. The court agreed with the State that the proposed testimony constituted an alibi. It offered to adjourn the trial so that Brown could give proper notice under the statute so as to permit the State to investigate Brown's claim regarding his whereabouts on and after May 19th. After conferring with counsel, however, Brown elected to proceed with the scheduled trial. The topic was revisited on the morning of trial. The court noted that "I did give the defendant the opportunity to, even as late as Monday, file a notice of alibi as to if he says he wasn't there [,] where was he and who are his witnesses [?]" The court, relying in part on the supreme court's discussion in State v. Burroughs, 117 Wis. 2d 293, 344 N.W.2d 149 (1984), reaffirmed its ruling that under Wis. Stat. § 971.23(8), "if his testimony is of the nature that at the time of the commission of the crime he was not there, he was somewhere else, then he is required ... to give notice of that alibi ... to the State, prior to testifying in this vein."

¶ 9. Brown neither testified nor called any defense witnesses. At the hearing on his postconviction motion, Brown's trial counsel explained that he understood the court's ruling to be that Brown was prohibited "from saying anything beyond I drove the truck into the State of Indiana," and that "anything about what he did with the truck" amounted to an alibi which could not be testified to without proper notice. Counsel further acknowledged that he and his client understood that Brown had not been precluded from testifying, but that he would only be permitted do so in "very limited fashion":

[W]e decided, I think, that the small amount of testimony he would be able to give would be so — such a small part of what was involved in this case it would be worse than saying nothing at all.... I believed that he could testify, but we decided that that would be more damaging than not testifying at all.

¶ 10. At the jury instruction conference, defense counsel requested an instruction "to reflect the proposition that the crime has to have been committed in the State of Wisconsin." After some discussion among the court and counsel, the court relied on Wis JI — Criminal 268, which provides a "Law Note" but no pattern instruction on territorial jurisdiction. The court concluded, as the note suggests, that an instruction on venue would adequately address any issue regarding Wisconsin's territorial jurisdiction over the charged offenses. Accordingly, the court instructed jurors as follows:

If you are satisfied beyond a reasonable doubt that the defendant committed the offense charged, you must consider whether the crime was committed in Dane County. A criminal case is required to be tried in the county where the crime was committed. However, where the offense has been committed in or against a vehicle, the trial may be in any county through which the vehicle has passed or in the county where the travel began or ended. Therefore, you must be satisfied beyond a reasonable doubt that the vehicle involved in this offense passed through Dane County or that the travel began or ended in Dane County.

See Wis JI — Criminal 267.

¶ 11. The jury returned guilty verdicts for OMV-WOC and the theft of the household goods, but it found Brown not guilty of theft of the truck. Brown moved for postconviction relief, citing as grounds an alleged lack of territorial jurisdiction over the offenses, ineffective assistance of counsel, and the erroneous exclusion of Brown's proposed testimony. The court denied the motion and Brown appeals the judgment of conviction and the order denying postconviction relief.

ANALYSIS

¶ 12. We first address whether the trial court erred in excluding Brown's testimony for lack of a notice of alibi pursuant to Wis. Stat. § 971.23(8). We review the trial court's decision to exclude Brown's testimony under the erroneous exercise of discretion standard, and if it has a reasonable basis, we will not disturb it. State v. Guzman, 2001 WI App 54, ¶ 19, 241 Wis. 2d 310, 624 N.W.2d 717, review denied, 2001 WI 88, 246 Wis. 2d 166, 630 N.W.2d 219 (Wis. May 8, 2001) (No. 99-2249-CR). Brown asserts that the testimony he proposed to give was not an "alibi" within the meaning of § 971.23(8)(a), a claim which presents a question of statutory interpretation subject to our de novo review. See State v. Gribble, 2001 WI App 227, ¶¶ 26-27 n.10, ¶ 31, 248 Wis. 2d 409, 636 N.W.2d 488, review denied, 2002 WI 2, 249 Wis. 2d 580, 638 N.W.2d 589 (Wis. Dec. 17, 2001) (No. 00-1821-CR). If the trial court's discretionary decision to exclude Brown's proposed testimony was based on an error of law, the court acted " 'beyond the limits of discretion.'" State v. Wyss, 124 Wis. 2d 681, 734, 370 N.W.2d 745 (1985) (citation omitted), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990).

¶ 13. The statute provides in relevant part as follows:

(a) If the defendant intends to rely upon an alibi as a defense, the defendant shall give notice to the district attorney at the arraignment or at least 15 days before trial stating particularly the place where the defendant claims to have been when the crime is alleged to have been committed together with the names and addresses of witnesses to the alibi, if known ....
(b) In default of such notice, no evidence of the alibi shall be received unless the court, for cause, orders otherwise.

Wis. Stat. § 971.23(8)(a) and (b). The statute does not define the term "alibi." The supreme court has offered the following definition in State v. Shaw, 58 Wis. 2d 25, 205 N.W.2d 132 (1973), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990):

"The word, 'alibi,' is merely a shorthand method of describing a defense based on the fact that the accused was elsewhere at the time the alleged incident took place. The word, 'alibi,' is simply the Latin word for 'elsewhere.'"

Id. at 30 (citation omitted).

¶ 14. Brown contends that because Wis. Stat. § 971.23(8)(a) requires notice of the particular "place where the defendant claims to have been when the crime is alleged to have been committed," an "alibi" defense can arise only when the defendant knows the precise time and place the crime was allegedly committed. In this case, according to Brown, neither he nor the State knows these things. That is, in Brown's view, the crimes of which he was convicted took place sometime between May 18 and November 11, somewhere in Indiana or perhaps Illinois. Moreover, Brown asserts that because all he knows is that "he dropped off the truck at a truck stop and took a new job," he had neither the intention nor the ability to provide "a detailed description of where he was for every moment from the time he dropped off the truck until it was found on November 11," and thus, his testimony could not constitute an alibi.

¶ 15. The State responds to Brown's arguments in a number of ways. It asserts that the offenses of which Brown was convicted were "continuous" or "continuing" offenses, and that a defendant's claim to "have been elsewhere for only part of the time" an offense was committed is an alibi requiring notice to the State. It also claims that Brown suffered no prejudice in the form of a breach of his rights to testify or present a defense because he was given the opportunity to provide a late notice of alibi and give his proposed testimony at a postponed trial, an opportunity he rejected. Finally, the State asserts that if we conclude the proposed testimony was not an alibi requiring notice, any error in the court's exclusion of the testimony was harmless because it is " 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis. 2d 442, 647 N.W.2d 189.

¶ 16. We conclude, however, that there is a threshold problem in our consideration of whether Brown's proposed testimony constitutes an alibi for purposes of Wis. Stat. § 971.23(8). Although the State does not expressly argue that Brown made an insufficient offer of proof to preserve for appellate review the claimed error in the. exclusion of his proposed testimony, its argument strongly suggests that is the case. The State notes in its argument, for example, that "Brown's proffer does not even indicate where Brown allegedly abandoned the truck, when he did so or what he meant by having or seeking 'better prospects.'" The only indications in the record of what testimony Brown proposed to give were a one-sentence paraphrase by his counsel ("I drove the truck there and I abandoned it for better prospects.") and the court's similarly terse summary ("[H]e did have possession of the vehicle, left the vehicle at a truck stop and left the keys and left.").

¶ 17. Wisconsin Stat. § 901.03(1) and (l)(b) provides that error "may not be predicated upon a ruling which ... excludes evidence unless .. . the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked." The supreme court has explained the dual purpose of the offer-of-proof requirement: "Two purposes are served by an offer of proof: first, provide the circuit court a more adequate basis for an evidentiary ruling and second, establish a meaningful record for appellate review." State v. Dodson, 219 Wis. 2d 65, 73, 580 N.W.2d 181 (1998).

¶ 18. The supreme court also explained in Dodson that not "every offer of proof should be accompanied by a question and answer format," because there "are cases in which the evidentiary problem posed is easily resolved by statements of counsel." Id. at 74. Nonetheless, the court concluded that "the circuit court did not have an adequate basis to make an evidentiary ruling on the offers of proof received through statements from defense counsel." Id. at 76. The court also endorsed our conclusion in Milenkovic v. State, 86 Wis. 2d 272, 285 n.10, 272 N.W.2d 320 (Ct. App. 1978), that the "question and answer" format is the preferred method for making offers of proof:

We conclude that offers of proof made in this manner will significantly reduce the possibility that trial counsel will inadvertently fail to offer to prove a crucial fact upon which the conclusion or inference which he seeks to establish necessarily depends. We also believe such a procedure will assist the trial court and any reviewing court in determining whether the evidentiary hypothesis can actually be sustained or the offer is overstated. Although the question and answer method of making an offer of proof may take a little more time, it [will] enable the trial court and reviewing court to approach the evidentiary problem with some confidence that the evidentiary problem really exists.

Dodson, 219 Wis. 2d at 74.

¶ 19. Brown did not request an opportunity to give his testimony outside the presence of the jury as an offer of proof, and he did not submit an affidavit or other statement detailing what he planned to say. We thus do not know when or where Brown would have claimed he abandoned the truck, or whether he would have attempted to give an account of his subsequent movements. It is therefore difficult for us to determine whether his testimony would have truly constituted an alibi ("I was elsewhere.") as the State claims, or simply an attempt to negate certain elements of the charged offenses, as Brown suggests. Without a proper offer of proof, neither we nor the trial court can know with certainty what the contours of Brown's testimony would have been, or whether his testimony and the cross-examination it would necessarily invite, taken as a whole, would constitute an alibi defense.

¶ 20. In short, we conclude that Brown's offer of proof was inadequate for us to conclude on appeal that the testimony he wanted to give was not an alibi requiring notice under Wis. Stat. § 971.23(8). See, e.g., State v. Robinson, 146 Wis. 2d 315, 329, 431 N.W.2d 165 (1988) (concluding "that the offer of proof by the defendant did not state an evidentiary hypothesis underpinned by a sufficient statement of facts to enable this court to conclude with reasonable confidence that the evidentiary hypothesis could be sustained"); State v. Padilla, 110 Wis. 2d 414, 430, 329 N.W.2d 263 (Ct. App. 1982) (" 'An offer of proof need not be syllogistically perfect but it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate's overstated assumption.'") (citation omitted).

¶ 21. Finally, we note that Brown does not argue that if his proposed testimony was subject to the statutory notice-of-alibi requirement, the trial court nevertheless erred in excluding it for lack of notice. Even if he had made this claim, however, we would reject it. The court offered Brown a continuance to comply with the requirement. There is nothing in the record to indicate Brown would have been prejudiced by a postponement of the trial for a reasonable time in order for him to give proper notice under Wis. Stat. § 971.23(8). Accordingly, we find no reversible error in the trial court's discretionary ruling to exclude the proposed testimony.

¶ 22. We next consider the issue of Wisconsin's territorial jurisdiction over Brown for the offenses of which he was convicted. Brown asserted in his postcon-viction motion that his trial counsel was ineffective for not seeking dismissal of the charged offenses for lack of territorial jurisdiction, and that the trial court erred in not instructing jurors on the State's burden to prove the crimes were committed in Wisconsin. On appeal, he makes only the latter claim, and we deem the claim of ineffective assistance of counsel for failure to seek a dismissal abandoned.

¶ 23. The question of whether or when a jury must be instructed on the State's burden to establish its territorial jurisdiction over a defendant for charged offenses appears to be one of first impression in Wisconsin. See Wis JI—Criminal 268. We conclude that a jury instruction on territorial jurisdiction is required only when a genuine dispute exists regarding the facts necessary to establish Wisconsin's territorial jurisdiction over a charged crime. Because no such dispute existed in this case, the trial court did not err in failing to instruct the jury on the jurisdictional issue.

¶ 24. The Sixth Amendment to the United States Constitution provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." Wisconsin Stat. § 939.03(1) provides as follows:

(1) A person is subject to prosecution and punishment under the law of this state if:
(a) The person commits a crime, any of the constituent elements of which takes place in this state; or
(b) While out of this state, the person aids and abets, conspires with, or advises, incites, commands, or solicits another to commit a crime in this state; or
(c) While out of this state, the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime; or
(d) While out of this state, the person steals and subsequently brings any of the stolen property into this state.

Brown makes no claim that § 939.03(1) does not comport with the Sixth Amendment. Rather, he argues that the trial court should have given a separate instruction addressing the applicable jurisdictional criteria under § 939.03(1) instead of relying on the venue instruction. He contends the instruction given by the court was not sufficient to inform the jury of its obligation to determine whether territorial jurisdiction for the charged crimes existed in Wisconsin.

¶ 25. There is no dispute that the State is obligated in all prosecutions to establish its territorial jurisdiction over a defendant for charged crimes. See Hotzel v. Simmons, 258 Wis. 234, 240, 45 N.W. 2d 683 (1951) ("It is elementary that a court may act only upon crimes committed within the territorial jurisdiction of the sovereignty seeking to try the offense."). The question is whether the determination that territorial jurisdiction over a defendant for charged crimes exists in Wisconsin is to be made by the court or a jury. We are satisfied that the proper answer to this question is that it depends on the circumstances in a given case. In its "Law Note" on territorial jurisdiction, the Criminal Jury Instruction Committee states its conclusion

that if the jurisdiction issue depends upon contested issues of fact, those issues are for the jury to determine, using the beyond a reasonable doubt standard. If the charging document does not properly allege that the crime was committed within the territorial jurisdiction of the state of Wisconsin, the trial court should grant a motion to dismiss. If there is a dispute about jurisdiction that presents a purely legal question, that is, whether the law confers jurisdiction over [a defendant for a given crime based on] an undisputed factual situation, that question should be decided by the court. But if the charging document sufficiently alleges facts in support of jurisdiction and there is a dispute about those facts, the issue will be for the jury to decide.

Wis JI—Criminal 268.

¶ 26. The committee cites State v. Bratrud, 204 Wis. 2d 445, 448-49, 555 N.W.2d 663 (Ct. App. 1996), and two Pennsylvania cases, Commonwealth v Mull, 175 A. 418 (Pa. 1934), and Commonwealth v. Bighum, 307 A.2d 255 (Pa. 1973) in support of its conclusion. We agree that the committee's conclusion finds persuasive support in the authorities it cites, as well as in a more recent Indiana case:

[T]his court endorses today... [the position] that if there is no serious evidentiary dispute that the trial court has territorial jurisdiction, then a special instruction on territorial jurisdiction need not he given to the jury. This view is consistent with those states that have addressed the issue....

Ortiz v. State, 766 N.E.2d 370, 375-76 (Ind. 2002).

¶ 27. We must next inquire, therefore, whether the facts necessary for Wisconsin to exercise jurisdiction over Brown for the crimes of which he was convicted were in dispute. We conclude that they were not, thus relieving the trial court of the obligation to instruct the jury on territorial jurisdiction.

¶ 28. The State first argues that Wisconsin properly exercised its territorial jurisdiction under Wis. Stat. § 939.03(1)(b) because a "constituent element" of each crime of which Brown was convicted undisputedly took place in this state. The State would have us define "constituent element" as "those material acts of the defendant, committed in Wisconsin, that are integral to proving , an essential element of the charged crime." There is no dispute that Brown took possession of the truck and household goods in Wisconsin. In the State's view, that act was "integral" to its proving Brown's subsequent operation of the truck without consent and his concealment of the household goods, and there was thus no need for the jury to be instructed on territorial jurisdiction.

¶ 29. Brown counters that one cannot separate a defendant's acts from the prohibited intent required to render the acts elements of a crime. That is, according to Brown, a "full element" must take place in Wisconsin in order to confer territorial jurisdiction. He asserts that because his possession of the household goods and operation of the truck in Wisconsin were entirely consensual, no element of either crime — operation of the truck without consent, intentional concealment of the goods with intent to deprive owners permanently of possession — took place until after he left the state. At a minimum, Brown argues, there was a factual issue as to when and where the elements of the crimes took place.

¶ 30. We conclude that it is not necessary for us to decide in this case whether something less than a "full element" of a crime may be a "constituent element" of the crime for purposes of Wis. Stat. § 939.03(l)(b), or if the statute requires that a "full element" take place within Wisconsin's borders. Rather, we conclude that the State is on firmer ground in claiming that Wisconsin's territorial jurisdiction over Brown's crimes was beyond factual dispute because his out-of-state acts were done "with intent that [they] cause in this state a consequence set forth in a section defining a crime." Section 939.03(l)(c).

¶ 31. Our opinion in State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999) is instructive on this issue. Instead of taking their child on a camping trip to Colorado as he promised his ex-wife, who had primary placement of the child, the defendant in Inglin took the child to Canada intending to keep the child with him permanently. Id. at 769. The defendant was convicted of two counts of interfering with child custody, one of which was for intentionally concealing the child from the other parent. Id. at 769-70; see Wis. Stat. § 948.31(3). On that charge, the defendant argued that Wisconsin lacked territorial jurisdiction because the concealment took place entirely in Canada. Id. at 777. We concluded, however, that the child's concealment in Canada caused in Wisconsin a consequence set forth in § 948.31(3)(a) because the prohibited concealment "made more difficult the discovery" of the child by the other parent who resided here. Id. at 778-79. In so concluding, we relied in part on the supreme court's holding in Poole v. State, 60 Wis. 2d 152, 156, 208 N.W.2d 328 (1973), that " 'a person may be prosecuted for doing an act outside this state which has a criminally proscribed consequence within the state.'" Inglin, 224 Wis. 2d at 779-80 (emphasis added by Inglin court).

¶ 32. Even if Brown committed no "constituent element" of either crime in Wisconsin, we conclude that his out-of-state acts were, beyond factual dispute, intended to cause criminally proscribed consequences in Wisconsin. Wisconsin Stat. § 943.23(3) renders it a crime to intentionally drive or operate "any vehicle without the consent of the owner." The direct and prohibited consequence of a defendant's operation of a vehicle without its owner's consent is that the owner is deprived of the right to control the use of the vehicle. Brown had the owner's permission to drive the truck and its contents to a storage facility in Indianapolis. At whatever point Brown elected to depart from that mission, his operation became nonconsensual, thereby depriving his Wisconsin employer of its right to direct the employment of the tractor-trailer for its intended business purpose. Thus, regardless of whether Brown's nonconsensual operation occurred in Wisconsin, Illinois or Indiana, it caused a "criminally proscribed consequence" in Dane County, Wisconsin.

¶ 33. The jurisdictional inquiry regarding Brown's second conviction, for theft by concealment of the household goods, tracks even more closely with our analysis of Wis. Stat. § 939.03(l)(c) in Inglin. Wisconsin Stat. § 943.20(l)(a) makes it a crime to intentionally conceal "movable property of another without the other's consent and with intent to deprive the owner permanently of possession of such property." Our conclusion in Inglin that Wisconsin was the situs of a proscribed consequence of criminal concealment applies as well to the Hartford couple who entrusted their household goods to Brown as it did to the Wisconsin mother who entrusted her child to the father for a brief trip. In both cases:

(1) . . .the element of concealment includes the intent to "preventG or make[] more difficult the discovery of the child by the other parent," [or, here, the movable property by its owner]; and (2) preventing or making such discovery more difficult produces "a consequence" under § 939.03(l)(c), Stats., and is "an act outside this state which has a criminally proscribed consequence within the state."

Inglin, 224 Wis. 2d at 783 (citations omitted). As in Inglin, Brown's concealment of the household goods in Illinois or Indiana "was inseparable from the consequences of that concealment in Wisconsin." Id. at 779.

¶ 34. We acknowledge, as Brown argues in his reply brief, that a distinction might be drawn from Inglin in that the owners of the concealed household goods, unlike the mother in Inglin, were in the process of relocating to another state. We reject, however, Brown's assertion that the owner's impending change of residence to Indiana deprives Wisconsin of territorial jurisdiction under Wis. Stat. § 939.03(l)(c). On the date that Brown was entrusted with the household goods in Wisconsin, at least one of the owners was still living in Wisconsin. The truck and contents did not appear at their designated destination the next day, and thus the couple's household goods were "concealed" from that moment onward. Regardless of whether the owners were in the process of relocating to Indiana, we conclude that a criminally proscribed consequence occurred in this state. At least one of the owners was arguably still a Wisconsin resident on the date of the crime, and Wisconsin's territorial jurisdiction over Brown for the theft did not evaporate simply because the principal victims of the crime thereafter established residence in another state.

¶ 35. In addition, the moving company, a Wisconsin business, had a strong practical and legal interest in discovering the whereabouts of the items: it was bai-lee of the goods and faced liability for the owners' loss. The facts regarding the Wisconsin company's extensive efforts to locate the goods are undisputed, and the bailee's discovery of their location was prevented or made more difficult by Brown's concealment, thus producing a statutorily proscribed consequence in Wisconsin. See Inglin, 224 Wis. 2d at 783.

¶ 36. Brown does not argue that even if his actions caused criminally proscribed consequences in Wisconsin, he did not intend for them to do so, as is required under Wis. Stat. § 939.03(1)(c). Neither does he claim that there is a factual dispute on this point. The only reasonable inference possible from the undisputed trial testimony is that Brown knew that the owner of the truck (his employer) was located in Wisconsin, and that his May 18th shipment originated from a residence in Wisconsin. Knowing these facts, Brown's operation of the truck without its owner's consent and his concealment of the shipment could only have been done with the intent that the acts would cause criminally proscribed consequences in Wisconsin. We therefore conclude that no facts necessary for territorial jurisdiction over Brown for the two crimes under § 939.03(l)(c) were in dispute, and accordingly, the trial court did not err by not instructing jurors on territorial jurisdiction.

CONCLUSION

¶ 37. For the reasons discussed above, we affirm the appealed judgment and order.

By the Court. — Judgment and order affirmed.

       The employer subsequently obtained a record of calls that were made with the phone from May 19th to May 24th, but none of the numbers matched any names Brown had given as references for his employment.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Wisoonsin Stat. § 971.23(8) is quoted below at ¶ 13 of this opinion.

       "[W]here some acts are committed outside of the state — an. instruction on venue as suggested in Wis JI — Criminal 267 ought to be sufficient to cover the territorial jurisdiction issue as well." Wis JI — Criminal 268.

       Defense counsel objected to the wording of the instruction at the conference: "I object to the way in which that's worded and the prohibition against arguing that if the crime occurs in Illinois, there's no venue." Counsel's final statement on the matter was as follows:
      I admit I'm having a little difficulty coming to grips with the proposition that the concealment of a vehicle — concealment of what is inside the vehicle are crimes that can he charged here even though it happens somewhere else, hut I understand the ruling .... I understand the Court's ruling, and my objection, I guess, is on the record.

       Brown relies on the following passage from State v. Shaw, 58 Wis. 2d 25, 205 N.W.2d 132 (1973), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990): " '[S]ince an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused's guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all.'" Id. at 31 (citation omitted).

       Operating a motor vehicle without the owner's consent is committed when a person "intentionally drives or operates any vehicle without the consent of the owner." Wis. Stat. § 943.23(3). Theft of movable property, as charged in this case, involves "[ilntentionally.. . concealing] .. . movable property of another without the other's consent and with intent to deprive the owner permanently of possession of such property." Wis. Stat. § 943.20(l)(a). Brown's arguments on appeal suggest that, rather than claiming to be elsewhere, the import of his testimony would have been that he did not intentionally operate the truck without its owner's consent, nor did he intend to conceal or deprive the Hartford couple of their possessions.

       Brown argued in the trial court that he would not give direct testimony regarding where he claimed to have gone or with whom, and those matters would not come out until cross-examination. Thus, in Brown's view, it would be the State and not he that would introduce his alibi. He does not renew this argument on appeal, but we note our skepticism that the requirements of Wis. Stat. § 971.23(8) can be so easily circumvented. If a defendant were to take the stand and say nothing more about his lack of participation in the charged crime than "I wasn't there," the obvious first question for cross-examination would be, "Well, then where were you?" We would be hard pressed to conclude that such a scenario would not constitute an "inten[t] to rely upon an alibi as a defense," § 971.23(8)(a), entitling the State to notice in advance of trial of the information set forth in the statute.

       Brown also asserted in his postconviction motion that the exclusion of his proposed testimony violated his rights under the United States and Wisconsin Constitutions to testify and to present a defense. He does not renew and thus abandons this assertion on appeal. Accordingly, we do not address any constitutional dimensions of the trial court's ruling. See, e.g., State v. Burroughs, 117 Wis. 2d 293, 303-05, 344 N.W.2d 149 (1984), and id. at 312-13 (Bablitch, J., dissenting).

       Brown does make an alternative argument of ineffective assistance of counsel regarding the jury instruction issue on the chance we might deem counsel's efforts to obtain a territorial jurisdiction instruction inadequate to preserve the issue for direct review. The State concedes that trial counsel made a sufficient record at the instructions conference to preserve the issue for review, and we agree. See ¶ 10 and footnote 4, above.

       The State argues in the alternative that if an instruction was required, the venue instruction the court gave (see ¶ 10) "adequately covered any factual issue concerning territorial jurisdiction." Because we conclude no territorial jurisdiction instruction was required, it is not necessary for us to decide whether the court's venue instruction adequately addressed territorial jurisdiction.

       We note that in Bratrud, we referred to the issue as one of subject matter jurisdiction, büt we have since concluded that territorial jurisdiction is more akin to personal jurisdiction, in that it may, in some circumstances, be waived. See State v. Randle, 2002 WI App 116, ¶¶ 13-16, 252 Wis. 2d 743, 647 N.W.2d 324, review denied, 2002 WI 109, 254 Wis. 2d 262, 648 N.W.2d 477 (Wis. Jun. 11, 2002) (No. 01-1448-CR).

       The trial court commented as follows on this issue at the postconviction hearing:
      The property was delivered from the [Hartford couple] to [Brown] in the State of Wisconsin. The property was then conveyed outside of the State of Wisconsin by the defendant where the jury found he concealed it... . [T]he owner, then leaves the State of Wisconsin, [and] the State of Wisconsin has no interest or public policy reason to - well, you know, now you left the State of Wisconsin, tough, you aren't entitled to protection under our criminal system? That is a ridiculous interpretation as a matter of public policy.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Michael J. Forster, Defendant-Appellants.

    Court of Appeals

      No. 02-0602-CR.

      Submitted on briefs November 27, 2002.

      Decided January 8, 2003.

    2003 WI App 29
    (Also reported in 659 N.W.2d 144.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martha K. Askins, assistant state public defender, Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sandra L. Nowack, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, EJ., Anderson and Snyder, JJ.

       Petition to review denied 3-13-03.

   ANDERSON, J.

¶ 1. Michael J. Forster appeals from a judgment of conviction for second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2) (1999-2000). He argues that, as a matter of law, the touching of a fifteen-year-old boy's chest does not constitute "sexual contact" within the meaning of § 948.02(2) because a boy's chest is not intended to be one of the "intimate parts" defined in Wis. Stat. § 939.22(19). In addition, Forster appeals an order denying a postconviction motion to vacate his conviction. He contends that the evidence adduced at trial was insufficient to support the jury's verdict of sexual assault of a child. We disagree with both of Forster's contentions. The judgment and order of the trial court are affirmed.

¶ 2. An appellate court views facts in the light most favorable to sustain the verdict and where more than one inference might be drawn from the evidence presented at trial, we are bound to accept the inference drawn by the jury. Burch v. Am. Family Mut. Ins. Co., 198 Wis. 2d 465, 474, 543 N.W.2d 277 (1996). Thus, we will relate the facts in a light most favorable to the jury verdict. See State v. Bauer, 2000 WI App 206, ¶ 3, 238 Wis. 2d 687, 617 N.W.2d 902.

¶ 3. In October 1999, the State filed a criminal complaint alleging that Forster had sexual contact with Grant E, a child under the age of sixteen, constituting second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2). A jury trial followed. Forster testified that he was the director of the Late Night Adventures summer camp in 1998, a faith-based camp for teens. Fifteen-year-old Grant met Forster in the summer of 1998 when he attended a week-long LNA camp session. After Grant returned home from camp, Grant's mother, Dana, noticed an improvement in his attitude. In the months after camp had ended, Forster sent Dana and Grant, along with other former campers, newsletters and e-mails relaying news about campers and upcoming camp-related events. One of these events was a one-night camp reunion in the winter of 1999, which Grant attended. Before the reunion, Dana noticed that Grant's attitude was deteriorating and that he was exhibiting a recurrence of the behavioral problems that had prompted the Waushara County Social Services Department to recommend that Grant attend camp in the first place. The one-night camp reunion did nothing to improve Grant's behavior and attitude.

¶ 4. On March 24, 1999, Dana sent an e-mail to Forster. The subject line of the e-mail stated: "A prayer wouldn't hurt." In her e-mail, Dana asked Forster to say a prayer for Grant because the improvements she had noticed when Grant returned home from the week of summer camp had not lasted long, and "[t]hings have not been going so well again."

¶ 5. In the evening on that same day, Forster phoned Dana and spoke with both her and Grant. Through Dana, Forster invited Grant to his home in New Berlin for the weekend. Dana and Grant testified that Forster told them that Grant's summer camp counselor and other summer campers would be coming for the weekend as well. Forster testified that he "had mentioned other campers" but that he did not tell Dana or Grant that other campers would be coming for the weekend too. Forster said that he only told Dana and Grant that he planned to phone Grant's counselor to see if maybe he could have dinner with him and Grant that weekend. Dana, Grant and Forster testified that Forster told them that he planned to hang pictures in his apartment over the weekend and Grant could come and help him. Dana and Grant accepted Forster's invitation. Forster's apartment in New Berlin was hours away from where Grant and Dana lived, so Dana and Forster agreed to meet in Fond du lac, a halfway point between their towns.

¶ 6. Two days later, Dana drove Grant to Fond du lac where Forster met them as planned. Grant then rode with Forster to New Berlin for the weekend. Forster stated that after picking up Grant, he stopped at a Walgreen's en route to his apartment in order to pick up a disposable camera and a couple of Cokes. He explained his reason for purchasing a camera as follows:

Um, I have four older sisters and my parents, and typically if someone moves or has just redecorated or whatever we'll take pictures, you know, of the walls or, you know of the outside or something and mail the pictures home .... And my regular camera was in for repair.

¶ 7. During the commute to New Berlin, Grant learned that he would be Forster's only guest that weekend. After stopping at Walgreen's, the two went to Menards and out to dinner. They arrived at Forster's apartment after 9:00 p.m. on Friday. Forster said that because it was after nine o'clock, they decided not to begin hanging pictures that night.

¶ 8. Grant and Forster spent most of Saturday hanging over fifty pictures on Forster's apartment walls. At some point during that day, Grant said that Forster asked him to remove his shirt and told him that he wanted to take "pictures with my shirt off doing muscular poses." Grant said that Forster told him that "he needed the pictures for a college class or something." Grant said that he did as Forster asked and that, at the time, he did not think it was weird. Forster admitted taking photos of Grant with his shirt off but stated that he did not ask Grant to remove his shirt. Forster claimed that he had been taking pictures of the pictures and "just decided to use up the rest of the roll of the film ... and I knew from camp that, you know, jokingly [Grant] was what we would call kind of a poser, you know."

¶ 9. Saturday evening Forster and Grant ordered pizza and watched television. Grant testified that they watched the Dukes of Hazard, but that before the Dukes of Hazard, Forster was flipping through the channels and stopped at a "skin show" that was on Cinemax. Grant said that Forster left the skin show on for about fifteen to twenty minutes. Grant said that when they began to watch the skin show and then the Dukes of Hazard, he was seated on a couch and Forster was seated on a love seat. Grant said that at some point the seating arrangement changed when Forster moved from the love seat and sat next to Grant on the couch. Grant's testimony further related the following:

[State] What happened?
[Grant] He [Forster] had put his hand up my shirt and was rubbing my nipples and stomach.
[State] . .. How was he able to do that?
[Grant] Well, he did move over to the middle cushion completely.
[State] Okay. Do you remember which hand he used to touch you?
[Grant] His right.
[State] What — How did you feel when you first noticed that his right hand was touching you?
[Grant] I really — didn't really care.
[State] Okay. When his hand first touched you, what part of your body did his hand come into contact with?
[Grant] My stomach.
[State] Okay. Did he say anything?
[Grant] Yes. He said, 'You're really warm."
[State] Did he move his hand from — Well, was his hand over your T-shirt or under your T-shirt?
[Grant] At first it was over.
[State] Okay.
[Grant] And then he had moved it under my shirt.
[State] Okay. So when in relation to when it was over your shirt and then under your shirt did he say, You're really warm"?
[Grant] He had said it before and during.
[State] Okay. Did his hand stay on your stomach?
[Grant] No, it had moved around.
[State] Okay. Where did — Where is the first place you remember other than your stomach where his hand moved to?
[Grant] It came up to my left nipple.
[State] Okay. And what are you thinking then?
[Grant] I wasn't really thinking much at all.
[State] Okay. Did he do anything when his hand was in contact with your left nipple?
[Grant] Yeah, he did. Had started kissing me on the neck.
[State] Okay. Was he doing anything else with his hand, or was his hand just kind of sitting there?
[Grant] He was rubbing it.
[State] Can you — -Can you describe how he was rubbing it?
[Grant] Just in a circular motion.
[State] Okay.
[Grant] Around it.
[State] You said he was kissing you on the neck? [Grant] Yes.
[State] Okay. So what are you thinking now?
[Grant] I wasn't really thinking much at all.
[State] Okay. How long — How long did that happen? [Grant] Quite a while.
[State] Did he touch you anywhere else on your body? [Grant] Yeah. He had moved over to my other nipple. [State] With the same hand?
[Grant] Yes.
[State] What was he doing there?
[Grant] Same thing as the other nipple.
[State] Is he still kind of kissing you then?
[Grant] Ah, yes.
[State] Did he stop kissing you at any time during when this was going on?
[Grant] I don't think so.
[State] Okay. Did he say anything? [Grant] I don't think so.
[State] How come you didn't move away from him?
[Grant] There was nowhere to really move to.
[State] How long did this go on do you think?
[Grant] Twenty five minutes maybe.
[State] Um, did you try and fidget or move to try and stop him from touching you this way?
[Grant] No.
[State] Okay. What were you thinking?
[Grant] I was thinking that he is much bigger than I am.
[Grant] Okay.
[State] What about how did you feel about him touching you the way he was touching you? Did you want him to do that?
[Grant] No.
[State] Do you remember what you were thinking while this was going on?
[Grant] Not exactly.
[State] Okay. Did you think about trying to move away from him at all?
[Grant] I thought about getting up and going to the bathroom.
[State] Okay. But you didn't?
[Grant] No.
[State] Why not?
[Grant] I was kind of frozen.

¶ 10. The next day, Forster gave Grant a ride to Fond du lac where Dana had agreed to meet them. Grant testified that as Forster drove, he placed his right hand on Grant's left leg, where it remained during most of the drive. Grant said that Forster first placed his hand on Grant's knee, but then gradually moved it toward Grant's crotch. Grant said that Forster suggested to Grant that he put his hand on top of Forster's to warm Forster's hand.

¶ 11. Dana testified that when Grant exited Forster's car the day she picked him up, she asked Grant how it was and the only thing she remembered him doing in response was "holding his head really low." Dana thought this was odd because Grant "always has something to say." Eventually, Grant told Dana what happened during the weekend he had stayed with Forster. Dana then met with a detective from the New Berlin police department, prompting the investigation that led to Forster's sexual assault conviction.

¶ 12. We will reverse a conviction based on insufficient evidence only if, as a matter of law, the probative value and force of the evidence presented is such that no trier of fact acting reasonably could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). However, questions of statutory interpretation, such as the meaning of "intimate parts" within Wis. Stat. ch. 939, are questions of law that we review de novo. See State v. Pablo R., 2000 WI App 242, ¶ 7, 239 Wis. 2d 479, 620 N.W.2d 423. When we interpret a statute, our goal is to ascertain and give effect to the intent of the legislature. Id. at ¶ 7. We first look to the language of the statute itself. Id. If the language of the statute is unambiguous in its meaning, we go no further. Id. A cardinal rule of statutory construction is that statutes must be construed to avoid an absurd or unreasonable result. State v. Mendoza, 96 Wis. 2d 106, 115, 291 N.W.2d 478 (1980). We will not find a statute ambiguous simply because the parties differ as to its meaning. State ex rel. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 154-55, 454 N.W.2d 792 (1990). "The plain meaning of a statute takes precedence over all extrinsic sources and rules of construction." UFE Inc. v. LIRC, 201 Wis. 2d 274, 282 n.2, 548 N.W.2d 57 (1996).

¶ 13. Both parties agree that the issue presented in this appeal is whether Wis. Stat. § 939.22(19), which designates the "breast... of a human being" as an intimate part, includes the chest/breast of a male. Forster argues that the ordinary meaning of the term "breast" refers only to a female breast, and does not include parts of the male anatomy. He contends that the legislature did not intend the term "intimate parts" in the Criminal Code to include the male breast. To support this argument, he asserts that "[i]t is the female breast which has sexual connotations, not the male chest." In addition, he argues that if the term "breast" refers to a part of the male anatomy, there is an "anomaly in the statute" because male breasts may be exposed in public, while other intimate parts identified in the statute may not. We disagree with each of these contentions.

¶ 14. When faced with plain language, as we are here, we apply the plain language unless such application would lead to absurd or unreasonable results. Gasper v. Parbs, 2001 WI App 259, ¶ 8, 249 Wis. 2d 106, 637 N.W.2d 399. Wisconsin Stat. § 939.22(19) states: " 'Intimate parts' means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being." (Emphasis added.) Forster asks us to read the word "female" into the language of the statute, to qualify the term "breast." However, we will not read words into a statute if the statute has clear meaning on its face. See State v. Hall, 207 Wis. 2d 54, 82, 557 N.W.2d 778 (1997).

¶ 15. Wisconsin Stat. § 939.22(19), on its face, makes no distinction between the male and female breast. We believe that the legislature's decision not to specify a particular sex when designating one of the "intimate parts" as "the breast... of a human being" was made intentionally to convey that the breast of any human being — male or female — is an intimate part under § 939.22(19). This is not ambiguous.

¶ 16. Moreover, the State aptly points out that the legislature specified "female" breast in other related statutes. For example, Wis. Stat. § 948.50, which pertains to strip searches by school employees, states:

a search in which a person's genitals, pubic area, buttock or anus, or a female person's breast, is uncovered and either is exposed to view or is touched by a person conducting the search. (Emphasis added.)

The legislature similarly distinguished between male and female breasts in Wis. Stat. § 948.11 — which covers rules against exposing a child to harmful material or harmful descriptions or narrations. Here it states in para. (l)d:

"Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. (Emphasis added.)

Also, Wis. Stat. § 942.08, which addresses invasion of privacy, provides in para. (l)(a):

"Nude or partially nude person" means any human being who has less than fully and opaquely covered genitals, pubic area or buttocks, any female human being who has less than a fully opaque covering over any portion of a breast below the top of the nipple, or any male human being with covered genitals in a discernibly turgid state. (Emphasis added.)

¶ 17. These examples further support the legislative intent that the breast referred to in Wis. Stat. § 939.22(19) means any male or female breast. If the legislature thought that only females had breasts, its gender-specific qualification of the breast in Wis. Stat. §§ 948.50, 948.11 and 942.08 would have been unnecessary. The choice of using the word "female" in these statutes implies an intent to make the statute applicable to the female breast and not to the male breast. Similarly, the choice not to use a gender qualification in § 939.22(19) implies the intent that the breast referred to is that of any human being — just as the statute plainly states: " 'Intimate parts' means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being." (Emphasis added.)

¶ 18. We are satisfied that the plain language of Wis. Stat. § 939.22(19) is meant to include a female and a male breast because each is "the breast... of a human being" and thereby the touching of a boy's breast constitutes "sexual contact" within the meaning of Wis. Stat. § 948.02(2).

¶ 19. This decided, we can easily dispose of Forster's sufficiency of the evidence argument because he relies on his contention that a boy's breast is not an intimate part to support his ultimate conclusion that the evidence was insufficient to justify his conviction. We have established that the male breast is an intimate part as defined in Wis. Stat. § 939.22(19). Therefore, the only sufficiency of the evidence argument that could be asserted is that the evidence did not support that Forster intentionally touched this intimate part of Grant for the purpose of sexual humiliation, sexual degradation, sexual arousal or gratification. See Wis. Stat. §§ 939.22(34) and 948.02(2).

¶ 20. Once again we emphasize our standard of review: we will not overturn a jury's verdict on a sufficiency of the evidence claim unless, "the evidence is so insufficient in force and probative value that no reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." State v. Bodoh, 226 Wis. 2d 718, 727, 595 N.W.2d 330 (1999). Grant testified that Forster slipped his hand under Grant's shirt and rubbed his nipple in a circular motion, while kissing Grant's neck, for approximately twenty-five minutes. We cannot say that this evidence is so insufficient in force and probative value that no reasonable jury could have found Forster guilty of second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2).

By the Court. — Judgment and order affirmed.

       Wisconsin Stat. § 948.02 covers sexual assault of a child and provides in relevant part:
      (2) Second degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class BC felony.
      All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 939.22 is Wisconsin's Criminal Codé definitional section; it provides in relevant part:
      (19) "Intimate parts" means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.
      (34) "Sexual contact" means the intentional touching of the clothed or unclothed intimate parts of another person with any part of the body clothed or unclothed or with any object or device, the intentional touching of any part of the body clothed or unclothed of another person with the intimate parts of the body clothed or unclothed, or the intentional penile ejaculation of ejaculate or intentional emission of urine or feces upon any part of the body clothed or unclothed of another person, if that intentional touching, ejaculation or emission is for the purpose of sexual humiliation, sexual degradation, sexual arousal or gratification.


author: WEDEMEYER, PJ.

text:
    George T. Stathus and Jill J. Stathus, Plaintiffs-Respondents, v. James H. Horst and Georgia J. Edwards, Defendants-Appellants.
    Court of Appeals

      No. 02-0543.

      Submitted on briefs December 3, 2002.

    Decided January 14, 2003.

    2003 WI App 28
    (Also reported in 659 N.W.2d 165.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Lawrence A. Trebon and Gerald J. Mayhew of Trebon & Mayhew, Milwaukee.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Joseph J. Kroening of Stevens & Kroening LLC, Brookfield.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   WEDEMEYER, PJ.

¶ 1. James H. Horst and Georgia J. Edwards appeal from an amended judgment entered after we remanded their case following the first appeal. Horst and Edwards contend that the trial court erred at remand in trebling the damages and in its award of attorney's fees. Because the trial court did not erroneously exercise its discretion in awarding treble damages, we affirm. But, because it erroneously exercised its discretion in awarding attorney's fees, we reverse and remand with directions.

BACKGROUND

¶ 2. This is the second appeal in this matter. After a bench trial, the trial court concluded that Horst and Edwards intentionally misrepresented the condition of the house that they sold to the Stathuses. The basis for the claim was Horst's and Edward's failure to disclose, either in the Real Estate Condition Report or otherwise, the basement water problems, and the problems related to an underground spring, which ran through the property causing water to flow across the sidewalk in front of the home. As part of the judgment, the trial court awarded the Stathuses $5000 in compensatory damages, and $3000 in attorney's fees. Both parties appealed from those rulings.

¶ 3. On the first appeal, we affirmed the trial court's conclusion that the sellers made a misrepresentation. See Stathus v. Horst, No. 00-0933, unpublished slip. op. (Wis. Ct. App. April 10, 2001) (Stathus I). That factor is not a subject of this appeal. In Stathus I, we also ordered that the award of damages and the attorney's fees be reconsidered because the trial court's awards did not reflect any exercise of discretion. Id. at ¶ 25. The case was remanded to the trial court. After briefing and a review of the record, a successor trial judge trebled the damages to $15,000, and increased the award of attorney's fees to $22,000. Horst and Edwards now appeal.

DISCUSSION

A. Treble Damages.

¶ 4. Horst and Edwards first contend that the trial court erroneously exercised its discretion in trebling the damage award. They argue that they requested the remand court to detail facts to backup the discretion exercised by the original trial court, but not to second-guess the original trial court's discretion or disturb its ruling in any way. Instead, they claim, the remand court supplanted its decision for that of the original trial court without giving any deference to the original trial court, and without giving any facts to support its own exercise of discretion. We are not convinced.

¶ 5. As noted in our opinion generated from the first appeal, whether to award treble damages under Wis. Stat. § 895.80(3)(a) (1999-2000), is a matter left to the discretion of the trial court. We will uphold that ruling as long as the trial court did not erroneously exercise its discretion, which requires a "reasonable inquiry and examination of the facts" to reach a reasonable conclusion. See Howard v. Duersten, 81 Wis. 2d 301, 305, 260 N.W.2d 274 (1977). We conclude that, on remand, the trial court complied with our direction and properly exercised its discretion to reach a reasonable conclusion.

¶ 6. In Stathus I, we cited Judge Miller's oral decision: "I would agree with [the lawyer for Horst and Edwards] in regards to tripling of damages. This is not an appropriate case that the Court heard of the facts at trial and that is denied." Stathus I, No. 00-0933, at ¶ 25.

¶ 7. In response, we stated: "Here again, we have no way to gauge the trial court's rationale, and accordingly ... we remand this matter to Judge Miller for reconsideration of the damage award and an explanation of the basis for the exercise of his discretion." Id.

¶ 8. If we accept the underlying premise supporting Horst's and Edwards's claim of error, which restricts the trial court's examination of the record to only evidence supporting Judge Miller's conclusions, we would, in effect, render the substance of our remand instruction meaningless. To "reconsider" as directed in our order means: "to consider again especially with the intent to alter or modify." American Heritage Dictionary 1510 (3d ed. 1992); see also Jenson v. Employers Mut. Cas. Co., 161 Wis. 2d 253, 273-74, 468 N.W.2d 1 (1991) (we may resort to standard dictionary to determine meaning of an ambiguous word).

¶ 9. We ordered the same judge who presided over the trial to reconsider the question of damages. Regrettably, because of his death, this could not be achieved. Nevertheless, the intent of the order remains the same — to reconsider with the intent of altering or modifying the original ruling. Contemporaneously, the Stathuses filed a motion for reconsideration. The successor judge prudently read relevant portions of the record, ordered additional briefing, and granted oral argument. There was little more that it could do to replicate the trial, and at the same time comply with our remand order. At the conclusion of oral argument, the successor court ruled:

My reading of the testimony and the evidence presented to Judge Miller offended me by the activities by the seller of the property. There is no other interpretation I can draw from the facts as described that there was a willful concealment or a convenient forgetting of the issue of a leaky basement.

I think the Court would — can conclude 895.80— that the $5,000 should be tripled to $15,000.

¶ 10. Although Horst and Edwards point out many discrepancies and contradictions in the Stathuses' case, which can be said to support the initial denial of treble damages, the record demonstrates the following facts. The residence had a seepage problem in the basement and an outside spring water problem. For two years during the listing agreement with a real estate agent, Horst and Edwards noted on the Real Estate Condition Report that there was water seepage in the basement, and water emanating from a spring found under the front lawn. During this two-year period, the real estate agent informed Horst and Edwards that the number one reason why the home was not selling was the "leaky basement." On July 31, 1997, the agent's listing agreement expired. A new agent, Fritz Roth, was hired. On August 20, 1997, a new Real Estate Condition Report was executed by Horst and Edwards. Contrary to the earlier report, there was no disclosure of either seepage in the basement, or the existence of the spring under the front lawn, which was causing water to run over the sidewalk.

¶ 11. The logic of the successor court's conclusion is compelling. Because Horst and Edwards knew the reasons why the house was not selling, they chose not to disclose the water problems in the new condition report. On November 14, 1997, the Stathuses signed an offer to purchase and, on December 5, 1997, they purchased the residence. The court concluded that the willful concealment was of such a nature to warrant trebling the damages. There is both a basis in the record, and sound logic in the court's analysis. Thus, the trial court did not erroneously exercise its discretion in following the intent of our remand order.

B. Attorney's Fees.

¶ 12. Horst and Edwards next claim that the trial court erroneously exercised its discretion in awarding attorney's fees in the sum of $22,000. After three days of trial, the Stathuses prevailed in their misrepresentation claim, and the trial court awarded them $3000 in attorney's fees. In the first appeal, the Stathuses claimed that Judge Miller had erroneously exercised his discretion when he reduced their attorney's fee claim of $16,350 to $3000, without any explanation. In Stathus I, we concluded that there was no evidence to show that discretion was actually exercised in making the award; therefore, we remanded the matter to the trial court and asked the trial court to reconsider the attorney's fees award, and explain how it arrived at the award. Stathus I, No. 00-0933, at ¶¶ 22-24.

¶ 13. On remand, and after additional briefing and oral argument, the successor court increased the award for attorney's fees to $22,000 based upon what appears to be an hourly rate multiplied by the hours spent. It discounted the hourly rate of $150 on portions of the time spent on the appeal work, and then declared the award it made to be reasonable. Again, we must reverse and remand on this issue for the reasons that follow.

¶ 14. A trial court's award of attorney's fees is vested in that court's discretion. Standard Theatres, Inc. v. State Dep't of Transp., 118 Wis. 2d 730, 747, 349 N.W.2d 661 (1984). This discretionary power, however, must, in fact, be exercised. Howard, 81 Wis. 2d at 305. An exercise of discretion requires a reasonable inquiry and an examination of the pertinent facts. Among the factors to be considered are:

(a) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
(b) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved and the results obtained.
(e) The time limitations imposed by the client or by the circumstances.
(f) The nature and length of the professional relationship with the client.
(g) The experience, reputation and ability of the lawyer or lawyers performing the services.
(h) Whether the fee is fixed or contingent.

Standard Theatres, 118 Wis. 2d at 749-50 n.9 (quoting with approval the ethical standards governing the attorney-client relationship as to the reasonableness of the fees).

¶ 15. The Stathuses contend the increase in the attorney's fees award was reasonable for two reasons. First, they argue that the appropriate statute to examine when reviewing a trial court's fee award is Wis. Stat. § 100.18 because that statute was the basis for the award of fees. Based on that statute, the Stathuses contend the $22,000 was appropriate. We are not convinced.

¶ 16. When the original $3000 fee award was made, the trial court did not make findings under Wis. Stat. § 100.18. Rather, the trial court deleted the reference to § 100.18 from the proposed findings and conclusions document submitted by the Stathuses. In addition, it is clear from the record that the successor trial court recognized it was operating under the calls of Wis. Stat. § 895.80(3), and not § 100.18.

¶ 17. Unlike in Stathus I, the current record before us sheds a different light upon the attorney-client relationship that existed between the Stathuses and their counsel throughout the course of this litigation. Our review demonstrates that the Stathuses executed a contingent fee agreement with their counsel. By its terms, the agreement provides that counsel would recover 33 1/3% of the gross settlement or judgment as payment for the legal services rendered. In . the event of an appeal to this court, the percentage is increased to 40% of the gross settlement or judgment. The agreement clearly provides that the Stathuses understood their counsel could have been retained on an hourly basis, but they expressly declined that option.

¶ 18. As noted, the original trial court awarded damages to the Stathuses under Wis. Stat. § 895.80. Section 895.80(3) provides: "If the plaintiff prevails in a civil action under sub. (1), he or she may recover all of the following: (a) Treble damages, (b) All costs of investigation and litigation that were reasonably incurred." Section 895.80(3)(b) is quite precise when it details that the cost of investigation and litigation which may be recovered must actually: (1) be incurred; and (2) be reasonable. This claim of error then presents an issue of first impression in Wisconsin whether a trial court can award attorney's fees which exceed what was actually "incurred," contrary to the clear language of § 895.80(3)(b).

¶ 19. The Stathuses' second reason suggesting that the attorney's fees award was appropriate is based on several cases: Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir. 1978); Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 312, 340 N.W.2d 704 (1983); and First Wisconsin National Bank v. Nicolaou, 113 Wis. 2d 524, 540, 335 N.W.2d 390 (1983). They argue these cases hold that the existence of a contingent fee agreement is not determinative when calculating the award for fees. We are not persuaded.

¶ 20. The Blanchard, Sargeant, and Thompson courts applied the fee-shifting provisions of the Federal Civil Rights Act, 42 U.S.C. § 1988, which provides that "the court in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of costs." These three cases examined the fee-shifting provision vis-a-vis the existence of a contingent fee agreement.

¶ 21. The First Wisconsin National Bank court examined the award of attorney's fees under the Wisconsin Consumer Act. Wisconsin Stat. § 425.308 allows a customer prevailing in an action arising from a consumer transaction to recover "a reasonable amount for attorney fees." The common element existing in all of these cases that distinguishes them from the claim of error proffered by Horst and Edwards is that the provision for reasonable fees was not restricted by the statutory limitation involved here of what was "incurred."

¶ 22. By way of contrast, in Marré v. United States, 38 F.3d 823 (5th Cir. 1994), the government argued that the trial court erred in awarding attorney's fees to Marré in an amount greater than those required under his contingent fee agreement with his attorney. Id. at 828. The issue arose under the Internal Revenue Code, 26 U.S.C. § 7430(a)(2), which provides that "the prevailing party may be awarded a judgment. .. for reasonable litigation costs incurred." (Emphasis added.) Section 7430(c)(l)(B)(iii) of the Internal Revenue Code includes as reimbursed costs, the reasonable fees "paid or incurred" for the services of an attorney. Marré agreed to pay his counsel 50% of any recovery, plus costs. Marré, 38 F.3d at 828. Marré was awarded $215,000. The government argued that Marré was entitled to only $107,500 in an attorney's fees award, based upon the contingent fee agreement. Id. The trial court disagreed and awarded a fee based upon the hourly rate per hour, plus costs, for a total of $326,182.62. Id.

¶ 23. Agreeing with the position of the government, the third circuit pointed to decisions interpreting the fee-shifting provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act, 42 U.S.C. § 4654, and the Equal Access to Justice Act, 28 U.S.C. § 2412, both of which contained an "incurred" provision limitation. Marré, 38 F.3d at 828. In doing so, the court expressly rejected the Blanchard rationale because the applicable statute limited attorney's fees to those actually incurred or actually obligated. Id. at 829.

¶ 24. We find the Marré analysis compelling. The language of Wis. Stat. § 895.80(3)(b) contains two prerequisites: (1) the cost of investigation; and (2) litigation must have been incurred (here via a contingent fee agreement), and then must be scrutinized for reasonableness. As reflected by the record, neither element contained in the statute was examined by the remand court; therefore, discretion was not properly exercised. The trial court needs to base the attorney's fees award on these two factors. That is, the award must be based on the attorney's fees that were actually incurred and that amount must be reasonable.

CONCLUSION

¶ 25. For the reasons stated, we affirm the trial court in its ruling to treble the damages, but reverse with respect to the award of attorney's fees. In regard to the latter, we remand the matter and order the trial court to reconsider its award in light of the rule of limitation imposed by Wis. Stat. § 895.80(3)(b), and then apply the appropriate standards for determining "reasonableness" set forth in Standard Theatres, 118 Wis. 2d at 747.

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

       The case was originally tried before the Honorable Stanley A. Miller. Our remand ordér specifically instructed that the case be remanded to the original trial judge. Before that could happen, however, Judge Miller died. As a result, the matter was assigned to the Honorable Thomas Cooper.

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

        See State of Oklahoma ex rel. DOT v. Norman Indus. Dev. Corp., 2001 OK 72, ¶ 15, wherein the Oklahoma Supreme Court stated:
      The majority of courts considering the issue find that the phrase "actually incurred" limits the attorney fees which may be awarded to the client's actual outlay or contractual obligation. These courts reason that use of the term "actually incurred" is clear and unambiguous and that it is intended to define the maximum amount of fees which may reasonably be allowed under such legislative schemes.


author: CANE, C.J.

text:
    Judy Palmerton and Russell Palmerton, Plaintiffs-Appellants, v. Associates' Health and Welfare Plan, Defendant-Respondent.
    Court of Appeals

      No. 02-1741.

      Submitted on briefs December 17, 2002.

    Decided January 14, 2003.

    2003 WI App 41
    (Also reported in 659 N.W.2d 183.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of C.M. Bye, of Bye, Goff & Rohde, Ltd. of River Falls.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Amy J. Boettcher, of Nash, Podvin, Tuchscherer, Huttenburg, Weymouth & Kry-shak, S.C. of Wisconsin Rapids, and Thomas H. Lawrence and John M. Russell of Lawrence & Russell, LLP of Memphis, Tennessee.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 4-22-03.

   CANE, C.J.

¶ 1. Judy and Russell Palmerton appeal a judgment awarding Associates' Health and Welfare Plan $35,683.29 on its subrogation claim for medical expenses paid on Judy's behalf. The Plan is a self-funded benefit plan for Wal-Mart employees under the Employee Retirement Income Security Act (ERISA). The Plan paid Judy's medical expenses arising from an automobile accident. The Palmertons sued the tortfeasor and joined the Plan as a defendant. The Palmertons sought to dismiss the Plan and extinguish its subrogation claim because it failed to answer the complaint. The court granted the Palmertons' motion to dismiss, but did not extinguish the Plan's subrogation claim because the Palmertons did not request this relief in their complaint. The Palmertons then claimed the Plan's subrogation claim was subject to the made whole and common fund doctrines. The court disagreed and awarded the Plan its subrogation claim.

¶ 2. On appeal, the Palmertons argue that the trial court should have extinguished the Plan's subro-gation claim because it did not file a timely response to the complaint. In addition, they claim the court should have limited the Plan's recovery based on the made whole and common fund doctrines. We reject both of these arguments and affirm the trial court's judgment.

BACKGROUND

¶ 3. The facts are undisputed. In August 1998, Judy Palmerton was injured in an automobile accident. At the time, she was a participant in the Wal-Mart Stores, Inc., Associates' Health and Welfare Plan. The Plan paid $35,683.29 for Judy's medical expenses related to the accident. The Plan's summary plan description contains a subrogation clause, which among other things gives the Plan the right to recover regardless of whether the participant has been made whole and makes the participant solely responsible for attorney fees.

¶ 4. In August 1998, the Palmertons signed a Reimbursement-Subrogation Agreement with the Plan. The agreement required them to repay "the Plan 100% at the time settlement/judgment is received by the Participant." The agreement also said "all attorney's fees are the responsibility of the Participant."

¶ 5. The Palmertons filed suit against the tortfea-sor on June 29, 2000. They joined the Plan as a defendant. In their complaint, they alleged the Plan "paid health care expenses and claims to be subrogated to plaintiffs rights for health care payments." The Plan was served on July 11 and a Plan representative signed an admission of service form. On September 15, the Palm-ertons filed an amended complaint. The Plan's counsel signed an admission of service form on October 3.

¶ 6. The Plan did not answer either complaint, but rather filed a motion to dismiss pursuant to Wis. Stat. § 803.03 on November 6. It said it intended to pursue its claim against the tortfeasor in federal court and should therefore be dismissed. The Plan brought the federal action against Judy, seeking to enforce its subrogation claim. In February 2001, the Palmertons moved to dismiss the Plan with prejudice in state court for failing to answer the complaint. In April, the federal court dismissed the Plan's suit, saying it should be resolved as part of the state court proceeding. In July, the trial court granted the Palmertons' motion to dismiss, but held the dismissal did not bar the Plan's subrogation claim because the Palmertons never sought to foreclose the Plan's right of recovery.

¶ 7. The Palmertons settled with the tortfeasor for $101,000, approximately $50,000 less than the cost of their total damages. After settlement, the Palmer-tons asked the court to dismiss the Plan's subrogation claim. They argued that it was barred by the made whole doctrine and, in the alternative, any recovery by the Plan should be reduced by one-third to reflect its share of the attorney fees under the common fund doctrine. The court rejected these arguments and awarded the Plan $35,683.29. The Palmertons appeal.

DISCUSSION

¶ 8. The Palmertons first argue that the trial court erred by not entering a default judgment against the Plan. They contend the Plan failed to answer the complaint within forty-five days as required by Wis. Stat. § 802.06(1), and therefore the court should have dismissed the Plan with prejudice. The court dismissed the Plan, but did not extinguish its subrogation rights.

¶ 9. The trial court's determination in granting a default judgment is reviewed under the erroneous exercise of discretion standard. See Oostburg State Bank v. United S&L Ass'n, 125 Wis. 2d 224, 238, 372 N.W.2d 471 (Ct. App. 1985), aff'd, 130 Wis. 2d 4, 386 N.W.2d 53 (1986). Our review is limited to whether the trial court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion. Doersching v. Funeral Dirs. & Embalmers Exam. Bd., 138 Wis. 2d 312, 328, 405 N.W.2d 781 (Ct. App. 1987). A court may not enter default judgment under Wis. Stat. § 806.02(l)-(4) if the defendant has joined issue. Further, if a default judgment is entered, the court may not grant relief beyond that demanded in the complaint. Klaus v. Vander Heyden, 106 Wis. 2d 353, 359, 316 N.W.2d 664 (1982).

¶ 10. The dispositive issue we need to resolve is whether the trial court erred by not extinguishing the Plan's subrogation claim because the Palmertons failed to request the court to do so in their complaint. We construe the trial court's dismissal order as accepting the Palmertons' argument that the Plan failed to respond to the complaint. For the purposes of this appeal, it does not matter whether the Plan was dismissed, only that the court did not extinguish its subrogation claim. Because of the court's ruling, the Plan was free to enforce its subrogation rights in another action. Further, the Palmertons essentially rejoined the Plan when they asked the court to resolve the subrogation claim after the Plan had already been dismissed. Consequently, we will assume, without deciding, that the Plan had not responded to the complaint when the court granted the Palmertons' motion.

¶ 11. The issue then is the propriety of the court's refusal to dismiss the Plan with prejudice. The court declined to extinguish the Plan's subrogation claim because the Palmertons had not requested this in their complaint. As noted, a court may only order the relief requested when granting a default judgment. Id. The Palmertons claim their complaint asked the court to extinguish the Plan's subrogation right. We disagree. The complaint alleges the Plan "paid health care expenses and claims to be subrogated to Plaintiffs' rights for health care payments." The Palmertons correctly note that Wisconsin has a notice pleading statute, and a pleading need only "notify the opposing party of the pleader's position in the case." See Norwest Bank Wis. Eau Claire v. Plourde, 185 Wis. 2d 377, 388, 518 N.W.2d 265 (Ct. App. 1994). We cannot say, however, that the subrogation allegation, along with the Palmertons' general request for "damages in accordance with the allegations of the complaint" constitutes a request to extinguish the Plan's subrogation rights. The court properly refused to dismiss the subrogation claim with prejudice.

¶ 12. Next, the Palmertons contend the Plan's subrogation claim is subject to the made whole and common fund doctrines. Under the made whole doctrine, a subrogated insurer is barred from recovering unless the insured is made whole. Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis. 2d 263, 272, 316 N.W.2d 348 (1982). It is undisputed that the Palmertons have not been made whole. However, subrogation provisions of self-funded ERISA plans trump state subrogation rules. Newport News Shipbuilding Co. v. T.H.E. Ins. Co., 187 Wis. 2d 364, 371, 523 N.W.2d 270 (Ct. App. 1994). Any application of the made whole doctrine must be found in the federal common law. Id. Under the federal common law, the made whole doctrine only applies when the parties are silent. Id.

¶ 13. Here, the parties have disclaimed the made whole doctrine. The summary plan description allows the Plan to recover 100% of the benefits it pays regardless of "whether the participant has been made whole (i.e. fully compensated for his/her injuries)." This language disclaims the application of the made whole doctrine and it therefore does not apply.

¶ 14. In addition, we conclude that the common fund doctrine does not apply to this case. Normally, where an ERISA plan's only participation in a personal injury suit was to assert its subrogation claim, as it was here, the plan has a common law obligation to pay its fair share of attorney fees and costs. See Ninaus v. State Farm Mut. Auto. Ins. Co., 220 Wis. 2d 869, 888, 584 N.W.2d 545 (Ct. App. 1998). However, we recently held the parties to an ERISA plan could disclaim the common fund doctrine as well as the made whole doctrine. Johnson v. Ziegler, 2002 WI App 103, ¶ 18, 255 Wis. 2d 751, 648 N.W.2d 480. In Johnson, we determined that allowing parties to disclaim the common fund doctrine in ERISA plans was consistent with our treatment of the made whole doctrine as well as with the current state of federal law. Id.

¶ 15. Here, the summary plan description reads "the Plan does not pay for nor is responsible for the participant's attorney's fees. Attorney's fees are to be paid solely by the participant." Further, the parties' Reimbursement-Subrogation Agreement states, "all attorney's fees are the responsibility of the participant." We conclude that this language disavows the common fund doctrine.

¶ 16. The Palmertons point to Wal-Mart Stores v. Wells, 213 F.3d 398 (7th Cir. 2000), to support their claim the common fund doctrine applies. We are not persuaded. Wells involved an earlier version of the plan at issue here that did not address attorney fees. Id. at 403. There, the court determined that version of the plan did not disavow the common fund doctrine and required the insurer to pay its share of the attorney fees. Id. The court noted a 1996 amendment to the plan "explicitly refuses to pick up any part of the plan participant's attorneys' fees." Id. While the court left open the question whether this language could serve as a waiver, we are satisfied that our decision in Johnson, where we considered Wells, forecloses any question that ERISA parties may preclude the application of the common fund doctrine through the plan's language. Johnson, 2002 WI App 103 at ¶ 16.

¶ 17. Finally, we reject the Palmertons' claim that the United States Supreme Court's recent decision in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), allows the application of the common fund and made whole doctrines to ERISA subrogation claims. In Great-West, the court held ERISA fiduciaries suing under 29 U.S.C. § 1132(a)(3) are limited to pursuing equitable remedies only. Id. at 221. Thus, the Palmertons argue, the Plan is limited here to equitable claims to which equitable defenses, such as the made whole and common fund doctrines, must be allowed.

¶ 18. We disagree. Great-West addresses ERISA plans seeking reimbursement under federal law. Here, the Plan is asserting its subrogation rights under state law. These are two different types of actions. See Unisys Med. Plan v. Timm, 98 F. 3d 971, 973 (7th Cir. 1996). Further, even if Great-West applied to ERISA subrogation, the relevant equitable remedies would be those found in the federal common law, which allows ERISA parties to disclaim the made whole and common fund doctrines. See Great-West, 534 U.S. at 221.

By the Court. — Judgment affirmed.

       RIGHT TO REDUCTION AND REIMBURSEMENT (SUBROGATION)
      The Plan has the right to 1) reduce or deny benefits otherwise payable by the Plan and 2) recover or subrogate 100% of the benefits paid or to he paid by the Plan on your behalf and/or your dependents to the extent of any and all of the following payments:
      • Any judgment, settlement, or any payment made or to be made, relating to the accident, including, but not limited to other insurance.
      • Any auto or recreational vehicle insurance coverages or benefits including, but not limited to, uninsured/underinsured motorist coverage.
      • Business and homeowners medical liability insurance coverage or payments.
      • Attorney's fees.
      Cooperation Required
      The Plan requires that you or your covered dependent cooperate to guarantee reimbursement to the Plan from third party benefits. Failure to comply with this request will entitle the Plan to withhold benefits due you or your dependents under the Plan Document. You or your covered dependents may not do anything to hinder reimbursement of overpayment to the Plan after you have accepted benefits.
      NOTE: All attorney's fees and court costs are the responsibility of the participant, not the Plan.
      These rights apply regardless of whether such payments are designated as payments for, but not limited to:
      • Pain and suffering
      • Medical benefits

        • Other specified damages
      • Whether the participant has been made whole (i.e., fully compensated for his/her injuries)
      Additionally, the Plan has the right to file suit on your behalf for the condition giving rise to the medical expenses to recover benefits paid or to be paid by the Plan.
      NOTES:
      • If you reside in a state where personal injury protection or medical payment coverage (as offered under your automobile/homeowner's policy) is mandatory, the Plan takes secondary status. The Plan will reduce benefits for an amount equal to, but not less than, that state's mandatory minimum personal injury protection or medical payment requirement.
      • The Plan has first priority with respect to its right to reduction and reimbursement (subrogation).
      • The Plan is secondary to any Excess insurance policy, including but not limited to school and/or athletic policies.
      • The Plan has the right to reduce future benefits.
      • The Plan will not pay for future medical charges related to the accident until medical charges have exceeded all amounts that were recovered, that should have been recovered, or are to be recovered by or on behalf of the participant.
      • The Plan's section regarding the right to Reduction and Reimbursement (Subrogation) applies to the associate and to covered dependents.
      • The Plan has the right to recover interest on the amount paid out by the Plan relating to the accident.
      • The Plan has the right to recover the amount paid out relating to the accident in a lump sum.
      • The Plan does not pay for nor is responsible for the participant's attorney's fees. Attorney's fees are to be paid solely by the participant.

        • Modification to this section regarding the right to reduction and reimbursement (subrogation) are made to clarify previous Plan wording.
      Participant's Responsibility Regarding Right of Reduction and/or Recovery
      To aid the Plan in its enforcement of its right of reduction, recovery, reimbursements, and subrogation, the participant must, at the Plan's request and at its discretion:
      • Take any action
      • Give information
      • Execute documents so required by the Plan.
      Failure to aid the Plan and to comply with such requests may result in the Plan withholding benefits, services, payments, or credits due under the plan.
      Subrogation is when the Plan pays your medical charges relating to your accident while waiting for the responsible party to settle. Repayment to the Plan of 100% will he made at the time the settlement is received by the associate, dependent, or their attorney.

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

       In their reply brief, the Palmertons claim this agreement is unenforceable because it lacks consideration and is a product of duress. We do not consider this argument because it is raised for the first time in their reply brief. Northwest Wholesale Lumber v. Anderson, 191 Wis. 2d 278, 294 n.11, 528 N.W.2d 502 (Ct. App. 1995).

       For similar reasons, we reject the Palmertons' claim that the Plan lacks standing to assert its reimbursement claim under ERISA. Instead, the Palmertons claim, only ERISA plan administrators can bring reimbursement claims. While this is undoubtedly true, the issue before us is a subrogation claim, not an ERISA reimbursement.