author: DYKMAN, J.

text:
    Dobbratz Trucking & Excavating, Inc., Plaintiff-Respondent-Cross-Appellant, v. PACCAR, Inc. and Kenworth Truck Company, Defendants-Appellants-Cross-Respondents.
    Court of Appeals

      No. 01-1091.

      Submitted on briefs January 11, 2002.

    Decided May 9, 2002.

    2002 WI App 138
    (Also reported in 647 N.W.2d 315.)

      On behalf of the defendants-appellants-cross-respondents, the cause was submitted on the briefs of Frank J. Daily, Mark A. Kircher, Jeffrey O. Davis, and Cory L. Nettles of Quarles & Brady LLP, Milwaukee.
    On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the brief of Lawrence Alan Towers of Towers Law Firm, Brookfield.
    Before Dykman, Deininger and Lundsten, JJ.
   DYKMAN, J.

¶ 1. Kenworth Truck Company and PACCAR, Inc. (collectively Kenworth) appeal from a judgment awarding damages to Dobbratz Trucking and Excavating, Inc., for a violation of Wisconsin's Lemon Law, Wis. Stat. § 218.015 (1997-98). Kenworth contends that the circuit court erred in refusing to direct a verdict in favor of Kenworth because there was insufficient evidence to support a finding that a warranted defect had substantially impaired the use, value or safety of the dump truck that Dobbratz had purchased from a Kenworth dealer. In addition, Kenworth asserts that the circuit court erroneously exercised its discretion when it granted Dobbratz's motion in limine requesting that Kenworth be barred from introducing evidence at trial that Dobbratz had overloaded the truck.

¶ 2. On cross-appeal, Dobbratz argues that the circuit court erred when it excluded attorney's fees from the "amount recovered" under Wis. Stat. § 807.01(4) for the purpose of awarding prejudgment interest. We disagree with each of these contentions and affirm in all respects.

Background

¶ 3. In December 1997, Dobbratz Trucking & Excavating, Inc. ordered a 1998 Kenworth T800 Dump Truck from a Kenworth Truck Company dealer. Ken-worth built the truck and Dobbratz signed a purchase agreement. Dobbratz purchased and took physical delivery of the truck in May 1998. The truck came with a warranty from Kenworth. It provided in part:

Kenworth Truck Company warrants directly to you that the Kenworth vehicle identified below, except for engine, engine brake, automatic transmission, tires, wheels, and/or rims, and fifth wheel, which are warranted directly to you by their respective manufacturers, and except for trade accessories, will be free from defects in materials and workmanship during the time and mileage periods set forth in the Warranty Schedule and appearing under normal use and service.

(Emphasis added.)

¶ 4. Dobbratz brought the truck in for service at the Kenworth dealer on October 23, 1998, complaining that "the truck turns hard when loaded." Apparently, the truck was not loaded at the time so Dobbratz returned with the truck loaded on October 27,1998. At this time, Dobbratz complained that "the power steering will not turn unless you move." The repair order states that the steering "did not act up" in the shop, but when the mechanic took the truck to the gravel lot, he "got [the] steering to bind." The mechanic then called "TRW per Brian" so that he "could help us troubleshoot to why [the truck] wasn't turning." As a result, the mechanic installed a new power steering pump. Dob-bratz returned, reporting that the truck still would not stationary steer. The mechanic again called "TRW," who told him to make sure the correct pump had been installed. The repair order states: "Check pump it has most flow possible. With pusher axles down truck turns fine."

¶ 5. On November 12, 1998, Dobbratz brought the truck back to the dealer. A mechanic loaded the truck with sand "to simulate the complaint condition." The repair order states: "We could not find a problem with the truck, steering appeared normal." However, the mechanic testified that, during the simulation, "[i]t took a lot of effort to turn with the axles up." A representative from Kenworth, who was also present at the simulation, testified that "when the pusher axles were up," the wheels of the truck could not be turned. Dobbratz and Kenworth agreed that a TRW representative would test the truck "at a later date."

¶ 6. On December 1, 1998, Dobbratz again brought the truck to the dealer, this time so that a "TRW troubleshooter," Ronald Brettnacher, could examine the truck. The repair order states that "we took the loaded unit and demonstrated the complaint... TRW Rep filed a report to John G. [from Kenworth]." Although Brettnacher testified that he did observe that the truck's stationary steering was "restricted" under certain conditions, he concluded this was "normal" and that the "steering system is performing to capability."

¶ 7. In addition to reporting problems with stationary steering, Dobbratz also took the dump truck to the dealer on multiple occasions after a light repeatedly came on indicating that there was a problem with the anti-lock braking system. No problems with the braking system were ever discovered.

¶ 8. On April 27, 1999, Dobbratz sued Kenworth and PACCAR, Inc. (which owns Kenworth), alleging that the defendants had failed to timely repair several nonconformities that were under warranty as they were required to do under the Lemon Law. On August 9, 2000, after receiving Kenworth's supplemental responses to a discovery request, Dobbratz moved in limine for an order prohibiting Kenworth from asserting as a defense that Dobbratz had damaged the truck by overloading it. After a hearing on October 30, 2000, the circuit court granted the motion. Although the court noted that the evidence was "probably" probative, it stated that "much if not all of the discovery would have to be redone" if the defense was allowed. Further, Kenworth had documents with evidence supporting the defense since the Fall of 1999, but failed to inform Dobbratz that it would assert the defense at trial until after the discovery deadline had passed and the trial was initially scheduled to begin. Finally, weighing the probative value of the evidence against "the extremely significant expense and inconvenience of really starting from scratch," the court concluded that it would grant Dobbratz's motion.

¶ 9. At trial, a jury found that the truck had a nonconformity with respect to both the stationary power steering and the anti-lock brake system. Ken-worth filed a motion to set aside the verdict, or, in the alternative, to grant a new trial, which the court denied. Because Dobbratz made a settlement offer that was rejected by Kenworth and obtained a judgment that was larger than the offer, the court awarded Dobbratz double costs under Wis. Stat. § 807.01(3) and prejudgment interest on the "amount recovered" under § 807.01(4). However, the circuit court excluded Dobbratz's attorney's fees from this amount. Kenworth appeals the judgment in favor of Dobbratz and Dob-bratz appeals the circuit court's refusal to award prejudgment interest on attorney fees.

Decision

A. Lemon Law Overview

¶ 10. Under Wisconsin's "Lemon Law," manufacturers and dealers are required to repair any motor vehicle "nonconformity" covered under an express warranty. Wis. Stat. § 218.015(2)(a). A "nonconformity" is defined in part as "a condition or defect which substantially impairs the use, value or safety of a motor vehicle." Section 218.015(l)(f). If the same nonconformity has not been repaired after four attempts, or if the vehicle is out of service for at least thirty days, the consumer may elect any one of several remedies, including a refund. Section 218.015(l)(h) and (2)(b). If the manufacturer refuses, the consumer may sue the manufacturer and is entitled to recover twice the amount of his or her pecuniary loss. Section 218.015(7). In addition, the statute awards the consumer his or her litigation costs and attorney fees. Id.

B. Stationary Steering

1. Express Warranty

¶ 11. Kenworth first argues that, as a matter of law, there was no express warranty that covered Dobbratz's situation. The warranty provided that the dump truck would "be free from defects in materials and workmanship." Kenworth emphasizes that the warranty did not specifically list "stationary steering" as covered under the warranty. However, Kenworth later concedes that the warranty would apply to a problem with the steering mechanism if it was caused by a defect in the materials or workmanship of the truck. Further, Kenworth does not dispute that Dobbratz had difficulty with stationary steering the truck. The issue, then, is not whether the warranty covers an ability to stationary steer. Rather, the issue is whether there was sufficient evidence for the jury to conclude that Dobbratz's inability to stationary steer the truck was caused by a defect in the materials or workmanship of the truck. We conclude that there was.

¶ 12. We will sustain a jury's factual determination if there is any credible evidence supporting its verdict. Salveson v. Douglas County, 2000 WI App 80, ¶ 5, 234 Wis. 2d 413, 610 N.W.2d 184, aff'd, 2001 WI 100, 245 Wis. 2d 497, 630 N.W.2d 182. Although it is true that neither the dealership mechanics nor Dobbratz's expert were able to pinpoint a specific corn-ponent that was defective, this was not required. We have previously rejected the contention that a Lemon Law plaintiff must identify the exact cause of the vehicle's malfunction before a jury may infer there is a warranty defect. See Vultaggio v. General Motors Corp., 145 Wis. 2d 874, 882-83, 429 N.W.2d 93 (Ct. App. 1988). John Jewell, Dobbratz's mechanical expert who ran tests on the truck, testified that he had "never seen another dump truck not be able to steer when stationary on concrete" and that the truck's steering problems were "consistent with a malfunction." Further, Richard Sedgley, a civil engineer employed by Kenworth, testified that a dump truck with a load of less than 20,000 pounds should be able to stationary steer and that a failure to do so indicates that the truck "doesn't conform to the specification." This was sufficient to permit the jury to conclude that the truck's inability to stationary steer was caused by a defect in materials or workmanship.

2. Substantial Impairment

¶ 13. Kenworth argues next that Dobbratz failed to prove that the truck's inability to stationary steer when loaded was a "nonconformity" under the Lemon Law, i.e., that it was "a condition or defect which substantially impairs the use, value or safety of a motor vehicle." Wis. Stat. § 218.015(l)(f). Whether a set of facts fulfills a legal standard is a question of law. Chmill v. Friendly Ford-Mercury of Janesville, Inc., 144 Wis. 2d 796, 802, 424 N.W.2d 747 (Ct. App. 1988). However, the determination whether a vehicle has a defect that substantially impairs its value, use or safety requires factual findings that are interconnected with a legal conclusion. Id. at 803. As a result, we give weight to the fact finder's decision, but not controlling weight. Id.; see also Langreck v. Wisconsin Lawyers Mut. Ins. Co., 226 Wis. 2d 520, 524-25, 594 N.W.2d 818 (Ct. App. 1999).

¶ 14. In support of its argument that Dobbratz's truck was not substantially impaired, Kenworth first points to a trial exhibit which shows that "Dobbratz was able to use the truck on an almost daily basis." However, simply because the. consumer is able to drive the vehicle does not mean that it is free from non-conformities. See Chmill, 144 Wis. 2d at 804; Vultaggio, 145 Wis. 2d at 887.

¶ 15. Todd Dobbratz testified at trial that without an ability to stationary steer while loaded, a dump truck cannot maneuver into many tight spots. This is important, Dobbratz explained, because many work sites necessitate being able to fit into a precise location. Dobbratz provided the example of needing to be exactly under the spot where materials will drop into the truck's box, and said that this had been a problem. He further provided several examples of instances where his ability to do his job was substantially impaired and he received complaints on work sites because he was unable to sufficiently maneuver his truck. Jewell agreed that an ability to stationary steer is essential for a dump truck because dump trucks "by their nature" should be able to "fit into spots that most of us would just as soon not try to squeeze your cars into." Jewell further explained:

If he can't maneuver the truck or if anyone can't maneuver their dump truck in tight spaces, the equipment operators aren't going to want them there because they're slowing up their what's called a cycle time. When a company bids something, they bid a machine to be able to load a truck in so many seconds and if this truck is taking twice as long just to load it just to back into position, then they're backing up a number of other trucks that are coming in and out on a high production job.
On a lower production job, such as digging a house basement, a driver could drive over someone's grade stake because he couldn't turn the truck. He may take two or three hours worth of work to the crew to reset the grade stake.... It would be very bad to have a truck that you couldn't drive or steer properly when it's off road. Nobody would want you bn their site.

¶ 16. Kenworth also relies on testimony of Dobbratz's former boss that his truck's performance was never a reason that Dobbratz was not sent to a job. Even if this is true, we do not agree that it requires the verdict to be overturned. That Dobbratz may have avoided direct financial injury and still attempted to perform his job does not mean that his truck was not substantially impaired. Dobbratz testified, and an expert agreed, that his dump truck was unable to perform a function necessary to complete many jobs adequately. This was sufficient to permit the jury to conclude that the stationary steering defect constituted a nonconformity.

¶ 17. Kenworth does not challenge the jury's finding that the same nonconformity existed after the fourth time the vehicle was made available to Kenworth for repairs, so we do not consider that issue. Further, because one nonconformity is sufficient to establish a violation of the Lemon Law, we need not decide Kenworth's contention that the circuit court erred in refusing to direct a verdict with regard to the anti-braking system defect.

C. Exclusion of Evidence of Abuse

¶ 18. Just before this case was originally scheduled to go to trial, Kenworth provided a discovery response indicating that it was going to assert as a defense at trial that Dobbratz had caused the problems with the truck by overloading it. Kenworth now asserts that the circuit court erred when it granted Dobbratz's motion in limine to exclude that evidence.

¶ 19. In deciding to exclude the evidence, the circuit court concluded that the prejudice to Dobbratz and the delay that admitting the evidence would cause, substantially outweighed the probative value of the evidence. In addition, the court noted that Kenworth filed its supplemental responses after the discovery deadline, in violation of the scheduling order. Thus, two legal standards are implicated: (1) the standard for excluding relevant evidence under Wis. Stat. § 904.03; and (2) the standard for excluding evidence as a sanction for violating a scheduling order under Wis. Stat. § 802.10. We review a circuit court's decision to exclude evidence for either reason under an erroneous exercise of discretion standard. See Siker v. Siker, 225 Wis. 2d 522, 535, 593 N.W.2d 830 (Ct. App. 1999); State v. Brewer, 195 Wis. 2d 295, 309, 536 N.W.2d 406 (Ct. App. 1995). Therefore, we will affirm the decision if the court examined the relevant facts, applied a proper standard of law, and reached a reasonable conclusion using a demonstrated rational process. Magyar v. Wisconsin Health Care Liab. Ins. Plan, 211 Wis. 2d 296, 302, 564 N.W.2d 766 (1997).

¶ 20. The circuit court first considered the probative value of the evidence and concluded that it was "probably probative." Although the court noted that Kenworth had alleged that the problems with the stationary steering and anti-braking system "may have been precipitated by overloading," it also noted that the matter would require expert testimony. Because Ken-worth had not indicated that it had an expert who would be able to give an opinion to a reasonable degree of certainty that abuse caused the malfunctions, the court could not conclusively decide how probative the evidence would be.

¶ 21. The court also concluded that Dobbratz would be unfairly prejudiced and it would cause undue delay to allow Kenworth to present evidence of abuse. The court found credible Dobbratz's assertion that it would have to redepose many of its witnesses because "anyone with technical knowledge about the truck and these problems ... would have to be asked their opinions about the misuse." Because the trial was only one month away, the court concluded that redoing so much discovery would be "clearly impossible." Further, because the court did not have an opening for a civil jury trial for another fourteen months, it concluded continuing the trial was not a reasonable remedy.

¶ 22. Finally, the court noted that it was through Kenworth's own lack of diligence that it failed to assert an abuse defense earlier. Although Dobbratz had provided Kenworth in the Fall of 1999 with all the documentary evidence that Kenworth was now relying on to show that Dobbratz had abused the truck, Kenworth never informed Dobbratz during discovery that it was going to argue abuse as a defense at trial. In fact, Kenworth had stated expressly at a hearing just before it filed its "supplemental responses" that it had no evidence of abuse. Instead, Kenworth provided Dob-bratz with "supplemental responses" to interrogatory requests in August 2001, several weeks after the discovery deadline had passed, that indicated Kenworth believed that Dobbratz had overloaded the truck. The circuit court concluded that Kenworth could have discovered the significance of the documents it possessed at a much earlier date.

¶ 23. Whether we analyze the circuit court's exclusion of evidence under Wis. Stat. § 904.03 or Wis. Stat. § 802.10, we conclude that the court exercised its discretion appropriately. Kenworth had access to all the information it needed to inform Dobbratz during discovery that it would assert an abuse defense at trial and provide Dobbratz with the expert opinion upon which the defense would be based. The discovery deadline came and went, but Kenworth did not disclose this information and did not even seek to amend the scheduling order, much less show cause as to why an extension was necessary. See Wis. Stat. § 801.15(2)(a) (requiring that court may enlarge time only "on motion for cause shown" and that failure to act must be the result of excusable neglect if motion is made after the time has expired); Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296, 316-17, 470 N.W.2d 873 (1991) (holding that circuit court did not abuse its discretion in excluding expert testimony when party failed to name expert by deadline in scheduling order and did not show cause for failure).

¶ 24. Kenworth complains that it "could hardly be blamed for not realizing the significance of every entry in every document received in discovery." But all Ken-worth had to do was look at the weight slips Dobbratz provided to determine whether the truck had been overloaded. Given that Kenworth is a truck manufacturer, we cannot conclude that it was unfair of the circuit court to decide that Kenworth did not act diligently when it failed to discover the evidence earlier. Therefore, it was within the circuit court's discretion to exclude expert testimony regarding the abuse issue when Kenworth had failed to disclose the expert's opinions before the deadline set in the scheduling order. See Siker, 225 Wis. 2d at 535; Gerrits v. Gerrits, 167 Wis. 2d 429, 445-46, 482 N.W.2d 134 (Ct. App. 1992).

¶ 25. Further, as the circuit court noted, the probative value of the evidence was not certain. The uncertainty surrounding Kenworth's assertions was an appropriate consideration in weighing the probative value of the evidence. See 7 Dan Blinka, Wisconsin Practice: Wisconsin Evidence, §403.1, at 113 (2001). This is particularly true with regard to the stationary steering defect, as Kenworth conceded during its offer of proof that its overloading argument would apply "more to the ABS [anti-braking system] complaint."

¶ 26. Kenworth challenges the circuit court's finding with respect to prejudice. Kenworth contends that Dobbratz should have conducted any discovery it needed to do over during the time between the date it filed its motion in limine in August and when the hearing was held at the end of October. But this argument ignores that the discovery deadline had already passed and Dobbratz could not perform any additional discovery unless the circuit court amended the scheduling order. It would not be reasonable to require Dobbratz to seek to amend the scheduling order or perform the discovery without permission while it had a motion pending to exclude the evidence at issue. Further, because it was Kenworth's failure to raise the abuse issue earlier that would require Dobbratz to redepose its witnesses, it was Kenworth that should have paid for the additional expense of redoing discovery. Before the hearing, however, Dobbratz would have had no idea whether Kenworth would be ordered to reimburse its expenses. Dobbratz cannot be criticized for choosing not to incur them.

¶ 27. Finally, Kenworth argues that the circuit court should have ordered a continuance rather than exclude the evidence. We agree with Kenworth that a continuance is the preferred method for reducing prejudice caused by unfair surprise. See Magyar, 211 Wis. 2d at 303-04. However, the circuit court noted that it would not be able to hold another trial for at least fourteen months. It was reasonable for the court to conclude that this was an undue delay. See Milwaukee Rescue Mission, Inc. v. Redevelopment Authority of the City of Milwaukee, 161 Wis. 2d 472, 493, 468 N.W.2d 663 (1991) (concluding that circuit court did not misuse its discretion in refusing to grant a continuance when case had already been pending "for almost two years" and court would not be able to reschedule the case "for over a year"). In sum, given Kenworth's lack of diligence in asserting the defense earlier, the uncertain probative value of the proffered evidence, the prejudice to Dob-bratz, and the undue delay that a continuance would cause, the circuit court did not erroneously exercise its discretion in granting Dobbratz's motion in limine to exclude evidence of abuse.

D. Discretionary Reversal

¶ 28. Finally, Kenworth requests that we exercise our power of discretionary reversal under Wis. Stat. § 752.35 and remand for a new trial. We are not persuaded that this is an "exceptional case" requiring discretionary reversal. See Beacon Bowl, Inc. v. Wisconsin Elec. Power Co., 176 Wis. 2d 740, 794, 501 N.W.2d 788 (1993). A party is not entitled to a new trial whenever possibly relevant evidence is lawfully excluded.

E. Interest on the 'Amount Recovered"

¶ 29 Wisconsin Stat. § 807.01(4) entitles a party whose settlement offer was rejected to recover twelve percent interest "on the amount recovered from the date of the offer of settlement until the amount is paid" when the party receives a "judgment" that exceeds the settlement offer. The circuit court applied this statute because Dobbratz received a judgment that was greater than its settlement offer. However, on cross-appeal, Dobbratz challenges the court's decision to exclude its attorney's fees and costs from the "amount recovered." The interpretation of the meaning of a statutory phrase is a question of law, which we review de novo. Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123 (1997).

¶ 30. Dobbratz's argument is that because the Lemon Law provides attorney's fees and costs as a "remedy" under the statute, and because these were both included in the judgment, they should also be included in the amount recovered. In concluding that Dobbratz was not entitled to prejudgment interest, the circuit court relied on American Motorists Ins. Co. v. R & S Meats, Inc., 190 Wis. 2d 196, 526 N.W.2d 791 (Ct. App. 1994). In American Motorists, the circuit court included the double costs awarded under Wis. Stat. § 807.01(3) in the "amount recovered" under § 807.01(4). 190 Wis. 2d at 212. On appeal, the losing party argued that the amount recovered was limited "to the damages awarded" while the prevailing party argued that the phrase meant "the total amount of the judgment." Id. at 213. We concluded that "amount recovered" did not mean the same thing as "judgment" and therefore, interest did not run on the double costs portion of the judgment. Id. at 214-15.

¶ 31. Dobbratz contends that its situation is unlike American Motorists because attorney fees and costs are expressly provided for by the Lemon Law. See Wis. Stat. § 218.015(7). We do not see the significance of that distinction. American Motorists rejected a "total amount of the judgment" view of "amount recovered," which Dobbratz suggests we adopt. Although not stated explicitly in the opinion, American Motorists implied that it adopted an interpretation of "amount recovered" to mean damages. Nelson further supports this view. There, the court concluded that "amount recovered" meant "that portion of the verdict for which a party is responsible." Nelson, 211 Wis. 2d at 501 (emphasis added). These cases support a conclusion that attorney's fees and costs, regardless why they are awarded, are not part of the "amount recovered," but rather are a shifting of the costs of litigation, and separate from recovery. The circuit court did not err in excluding attorney's fees and costs from the amount recovered.

By the Court. —Judgment affirmed.

       The statute has since been renumbered by 1999 Wis. Act 31, § 287. See Wis. Stat. § 218.0171 (1999-2000). All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       In its brief, Dobbratz argues that the reason the repair order states that "steering appeared normal" is due to the mechanics' misconception that the truck was overloaded during the simulation. Although the record supports Dobbratz's assertion that the Kenworth representative was misinformed regarding the weight of the load in the truck, Dobbratz does not cite to any portion of the record showing testimony that this misconception explained the repair order.

       Because we conclude that the jury could reasonably find that Dobbratz's inability to stationary steer was caused by a warranted defect, we need not consider whether the notation "PWR STRG: dual gears* TRW TAS65 22K" in the "Chassis Pre-Bill" created a specific warranty regarding the steering, as the circuit court concluded.

       Wisconsin Stat. § 904.03 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

       Wisconsin Stat. § 802.10(7) provides: 'Violations of a scheduling or pretrial order are subject to ss. 802.05, 804.12 and 805.03." Wisconsin Stat. § 805.03, in turn, provides that a court may make such orders "as are just" when a party fails to comply with a court order. This includes "prohibiting the disobedient party from introducing designated matters in evidence." See Wis. Stat. § 804.12(2)(a)2.

       Dobbratz also argues that the circuit court erred in excluding evidence that Kenworth had installed the wrong steer gear boxes on the dump truck. Because we are affirming the judgment in favor of Dobbratz, we need not address this issue.


source: Caselaw Access Project

author: LUNDSTEN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Jeffrey B. Haines, Defendant-Respondent.

    Court of Appeals

      No. 01-1311-CR.

      Submitted on briefs January 11, 2002.

      Decided May 9, 2002.

    2002 WI App 139
    (Also reported in 647 N.W.2d 311.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William L. Gansner, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Mark A. Huesmann of Huesmann Law Office, Holmen.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.

       Petition to review granted 9-26-02.

   LUNDSTEN, J.

¶ 1. The State of Wisconsin ap-. peals an order of the circuit court granting defendant Jeffrey B. Haines's motion to dismiss the criminal complaint. Haines asserted in his motion that the prosecution was time-barred and violated the ex post facto clause of article I, section 12 of the Wisconsin Constitution. The circuit court agreed that the prosecution violated the ex post facto clause and granted Haines's motion to dismiss. For the following reasons, we reverse and remand for further proceedings.

Background

¶ 2. On July 24, 2000, the State charged Haines with second-degree sexual assault of a child under the age of sixteen, in violation of Wis. Stat. § 948.02(2) (1989-90). The complaint alleged that in September or October of 1992, when Haines was thirty-three years old, he touched the breasts and vaginal area of his fourteen-year-old cousin, Nicole H., while the two were in the woods during a hunting trip. The complaint alleged that Haines admitted the sexual contact to two police officers.

¶ 3. At the time of the alleged child sexual assault in 1992, the applicable statute of limitations provided that the prosecution had to commence before the victim reached the age of twenty-one. See Wis. Stat. § 939.74(2)(c) and Wis. Stat. § 948.02. In 1994, about five years before the time had run, the statute of limitations was amended to extend the time in which a prosecution for child sexual assault could be brought. Section 939.74(2)(c) was amended to provide that a prosecution under § 948.02 (the child sexual assault statute) had to commence before the child reached the age of twenty-six. See 1993 Wis. Act 219, § 6. The charge in this case was brought in 2000, when Nicole H. was twenty-two years old.

¶ 4. Haines moved for dismissal, claiming that the prosecution was barred by the age twenty-one limitation in effect at the time of the alleged assault. Haines also claimed that prosecution under the amended age twenty-six limitation in effect at the time of the filing of the complaint violated the ex post facto clause of article I, section 12 of the Wisconsin Constitution. The circuit court concluded that the applicable statute of limitations was the amended version, but agreed with Haines that prosecution under the amended statute violated the ex post facto clause. The court dismissed the complaint, and the State appeals.

Discussion

¶ 5. On appeal, Haines has abandoned his argument that, regardless of any ex post facto violation, the applicable limitation period is the age twenty-one limitation in effect at the time of the alleged assault. Haines's implicit concession, that apart from any ex post facto violation the applicable limitation period is the age twenty-six limitation found in Wis. Stat. § 939.74(2)(c), as amended in 1994, is appropriate. Wisconsin Stat. § 990.06 (1999-2000) provides that a repealed limitation period remains operative "to determine all such limitations and periods of time which shall have previously begun to run unless such repealing act shall otherwise expressly provide." That sort of express language is present here. Pursuant to 1993 Wis. Act 219, § 7, "[t]he treatment of [the longer time limit in] section 939.74(2) (c) of the statutes first applies to offenses not barred from prosecution on the effective date [April 22,1994] of this subsection." Thus, the 1994 amended version of the statute of limitations, not the prior version, applies to Haines.

¶ 6. We turn now to whether application of the 1994 amended version of the statute of limitations to Haines violates the ex post facto clause. We look to see whether "the application violates one or more of that clause's recognized protections." State v. Kurzawa, 180 Wis. 2d 502, 512, 509 N.W.2d 712 (1994). Specifically, we determine whether application of the new law: (1) criminalizes conduct that was innocent when committed; (2) increases the penalty for conduct after its commission; or (3) removes a defense that was available at the time the act was committed. Id. at 512-13. Only the third consideration is at issue here: whether application of Wis. Stat. § 939.74(2) (c), as amended in 1994, removes a defense that was available to Haines at the time he allegedly assaulted his cousin.

¶ 7. On its face, the 1994 amendment to Wis. Stat. § 939.74(2) (c) did not remove a defense that was available to Haines in 1992. At the time of the alleged assault, Haines had no statute of limitations defense. Indeed, such "defense" would not have been available until 1999, when the former statute of limitations would have run. Accordingly, there is no ex post facto violation under the third consideration set forth in Kurzawa.

¶ 8. Although no Wisconsin case addresses the circumstances here, several federal circuit courts and state courts have concluded that retroactive application of a new statute of limitations, enacted at a time when the old limitations period has not yet run, does not violate the ex post facto clause. These cases are persuasive authority because the Wisconsin Supreme Court, like the courts cited in footnote 4 below, has taken guidance from the United States Supreme Court's interpretation of the ex post facto clause contained in the United States Constitution. See, e.g., Kurzawa, 180 Wis. 2d at 512-13 (relying on Collins v. Youngblood, 497 U.S. 37, 52 (1990), for the three considerations, including consideration of whether the application of the new law removes a defense that was available at the time the act was committed).

¶ 9. Haines argues that the cases from other jurisdictions are inapplicable because, in several of these cases, the statutes of limitations at issue were deemed procedural, rather than substantive, as is the case in Wisconsin. Haines essentially argues that in Wisconsin the legislature may never retroactively apply a new time limit in an amended statute of limitations precisely because such statutes are deemed "substantive" under Wisconsin law. In this regard, Haines primarily relies on Betthauser v. Medical Protective Co., 172 Wis. 2d 141, 493 N.W.2d 40 (1992). While there are a number of reasons why Betthauser does not undermine the result we reach today, we note only the most obvious. The Betthauser court itself looked to see whether the legislature intended the changed statute of limitations at issue in that case to be retroactive, an obvious acknowledgment that the legislature has the power in some circumstances to apply such changes retroactively. See id. at 149-50. Therefore, whatever merit Haines's procedural/substantive distinction might have in the absence of a legislative expression that the change be retroactive, it plainly has none when the legislature specifically indicates a statute will be retroactive, as is the case here.

¶ 10. Haines asserts that the circuit court correctly relied on State v. Pohlhammer, 78 Wis. 2d 516, 254 N.W.2d 478 (1977), in deciding that the age twenty-one limitation in effect at the time of his alleged offense provided him with a "complete defense" to prosecution because Nicole H. turned twenty-one prior to the commencement of the prosecution. However, Pohlhammer does not involve a changed statute of limitations and there is no ex post facto analysis. Rather, all that can be said about Pohlhammer, as it relates to this case, is that the decision is based in part on the fact that the statute of limitations for one of the charged crimes had already run before the crime was charged and, therefore, the statute was a "complete defense" at the time the charge was filed. Id. at 524.

¶ 11. We pause here to note that the case before us involves a statute of limitations change that occurred before the prior statute of limitations had run with respect to Haines. We do not address what the result might be if a statutory change had occurred after the prior time limit had run. Pohlhammer does not address this situation, and neither do we.

¶ 12. Finally, Haines relies on two United States Supreme Court cases, Miller v. Florida, 482 U.S. 423 (1987), and Weaver v. Graham, 450 U.S. 24 (1981). However, neither sheds light on the issue here. In both of those cases, the Court held that the ex post facto provision of the United States Constitution was violated by legislative changes that effectively increased the length of incarceration for crimes that were committed before the legislative changes. The change in this case had no such effect.

¶ 13. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

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

       All references to the Wisconsin Statutes are to the 1989-90 version unless otherwise noted.

       The current version of Wis. Stat. § 939.74(2)(c) (1999-2000), as amended in 1998, see 1997 Wis. Act 237, § 722c, provides that prosecution under Wis. Stat. § 948.02 must commence before the child reaches the age of thirty-one.

       Article I, section 12 of the Wisconsin Constitution states: "No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate."

        See, e.g., United States v. Grimes, 142 F.3d 1342, 1350-51 (11th Cir. 1998); United States v. Brechtel, 997 F.2d 1108, 1112-13 & n.14 (5th Cir. 1993); United States v. Taliaferro, 979 F.2d 1399, 1402-03 (10th Cir. 1992); United States v. Madia, 955 F.2d 538, 539-40 (8th Cir. 1992); United States v. Knipp, 963 F.2d 839, 842-44 (6th Cir. 1992); United States ex rel. Mas-sarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982); State v. O'Neill, 796 P.2d 121, 123-24 (Idaho 1990); State v. Schultzen, 522 N.W.2d 833, 835 (Iowa 1994); Commonwealth v. Bargeron, 524 N.E.2d 829, 830 (Mass. 1988); People v. Russo, 487 N.W.2d 698, 700-03 & n.18 (Mich. 1992); State v. Burns, 524 N.W.2d 516, 519-20 (Minn. Ct. App. 1994); State v. Hirsch, 511 N.W.2d 69, 76-78 (Neb. 1994).


text:
    Jeffrey M. Kohlbeck and Jill A. Kohlbeck d/b/a Dunbars Bear Necessities, Plaintiffs-Appellants, v. Reliance Construction Company, Inc., Defendant, Wisconsin Department of Transportation, Defendant-Respondent.
    Court of Appeals

      No. 01-1404.

      Submitted on briefs November 8, 2001.

    Decided May 9, 2002.

    2002 WI App 142
    (Also reported in 647 N.W.2d 277.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of George Burnett of Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay.

      On behalf of the defendant-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael J. Losse, assistant attorney general.
    Before Dykman, Deininger and Lundsten, JJ.
   DYKMAN, J.

¶ 1. Jill and Jeffrey Kohlbeck sued the Wisconsin Department of Transportation (DOT) and Reliance Construction Company, Inc., alleging that a highway construction project supervised by DOT and performed by Reliance damaged their property. DOT filed a motion to dismiss for failure to state a claim. The circuit court granted the motion, concluding alternatively that the Kohlbecks could not state a claim under Wxs. Stat. § 88.87 (1999-2000) because they had failed to ask for equitable relief in their complaint and because, regardless of the sufficiency of their complaint, they had an adequate legal remedy under Wis. Stat. ch. 32. In addition, the court concluded that the Wis. Stat. § 32.10 claim had been brought in the wrong county, and therefore the court had no jurisdiction over that claim. Finally, the court determined that the Kohlbecks could not seek relief under article I, § 13 of the Wisconsin Constitution because § 88.87 provided the sole remedy.

¶ 2. We conclude that the Kohlbecks have stated a claim under Wis. Stat. §§ 88.87 and 32.10, as well as art. I, § 13. The Kohlbecks' complaint seeks injunctive relief. It can be reasonably inferred that they seek an injunction to prevent future harm and that they have no adequate legal remedy. Further, the existence of § 32.10 does not bar the Kohlbecks from seeking injunctive relief and they were not required to prove at the pleading stage that no adequate legal remedy exists. We further conclude that the Kohlbecks have stated a claim under § 32.10 and art. I, § 13 because the Kohl-becks' complaint may be reasonably read to allege that the flooding is an ongoing problem and is therefore a permanent physical occupation of their property. Finally, we conclude that venue is proper in Dane County. Accordingly, we reverse.

Factual Background and Statutory Overview

¶ 3. In the Spring of 1997, the State of Wisconsin began a road construction project on Highway 8 in Dunbar. The State repaved the highway, widening the lanes and creating a curb. DOT was responsible for designing and constructing the highway. The Kohlbecks own a gas station and reside along a portion of Highway 8 that underwent construction.

¶ 4. The Kohlbecks served a notice of injury on DOT in November 1999. They claimed that the State was negligent in its design, supervision, and maintenance of the construction project, and as a result, they suffered damages. The record does not indicate what action, if any, the State or DOT took at this time in relation to the Kohlbecks' notice.

¶ 5. The Kohlbecks filed this lawsuit in July 2000, naming both DOT and Reliance Construction Co., Inc., the company that performed the construction project, as defendants. The Kohlbecks again alleged that DOT was negligent in its design, construction, inspection, and supervision of the project. More specifically, they alleged that the construction project diverted surface and ground water to their property, causing environmental contamination. In addition, they claimed that the highway had been expanded so close to their gasoline pumps that they were required to move a pump to another part of the property, costing $35,000 and forcing them to temporarily close their business. Finally, the Kohlbecks claimed that they installed a higher curb line in an attempt to prevent more water from invading their land from the highway.

¶ 6. DOT filed a motion to dismiss, arguing that Wis. Stat. § 88.87 was the sole remedy for the Kohl-hecks and that they had failed to state a claim under that statute. Section 88.87 creates an obligation on state and local governments to refrain from obstructing natural drainage when constructing and maintaining highways. Section 88.87(2)(a) provides:

Whenever any county, town, city, village, railroad company or the department of transportation has heretofore constructed and now maintains or hereafter constructs and maintains any highway or railroad grade in or across any marsh, lowland, natural depression, natural watercourse, natural or manmade channel or drainage course, it shall not impede the general flow of surface water or stream water in any unreasonable manner so as to cause either an unnecessary accumulation of waters flooding or water-soaking uplands or an unreasonable accumulation and discharge of surface waters flooding or water-soaking lowlands. All such highways and railroad grades shall be constructed with adequate ditches, culverts, and other facilities as may be feasible, consonant with sound engineering practices, to the end of maintaining as far as practicable the original flow lines of drainage. This paragraph does not apply to highways or railroad grades used to hold and retain water for cranberry or conservation management purposes.

¶ 7. The essence of this provision is that DOT is prohibited from "imped[ing] the general flow of surface water or stream water in any unreasonable manner." Id. When DOT fails to follow this requirement, an injured property owner "may bring an action in inverse condemnation under ch. 32 or sue for such other relief, other than damages, as may be just and equitable" if DOT fails to remedy the problem on its own. Wis. Stat. § 88.87(2)(c). Section 88.87 limits the type of relief available to those that are stated in the statute. See Pruim v. Town of Ashford, 168 Wis. 2d 114, 122, 483 N.W.2d 242 (Ct. App. 1992).

¶ 8. The circuit court granted DOT'S motion to dismiss. The court agreed with DOT that Wis. Stat. § 88.87 provided the exclusive remedy "for damage due to flooding caused by road construction." The circuit court concluded that the Kohlbeeks' complaint, properly read, requested money damages only, and that, regardless, the Kohlbeeks could not seek equitable relief because Wis. Stat. ch. 32 provided an adequate legal remedy. Further, the circuit court concluded, to the extent the Kohlbeeks' complaint stated a claim under Wis. Stat. § 32.10, they filed suit in the wrong county and therefore failed "to advance sufficient facts to establish this court's jurisdiction." Finally, the court concluded that the Kohlbeeks could not assert a takings claim as § 88.87 provided their exclusive remedy. The Kohlbeeks appeal.

Opinion

A. Standard of Review

¶ 9. We review de novo a circuit court's decision granting a party's motion to dismiss for failure to state a claim. In determining whether a party has stated a claim, we are concerned only with the legal sufficiency of the complaint. Lane v. Sharp Packaging Sys., Inc., 2001 WI App 250, ¶ 15, 248 Wis. 2d 380, 635 N.W.2d 896. We accept as true all the factual allegations in the plaintiffs complaint and must make all reasonable inferences in favor of the plaintiff. Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995). We will affirm an order dismissing a complaint for failure to state a claim only if it appears to a certainty that no relief can be granted under any set of facts that the plaintiffs could prove in support of their allegations. Quesenberry v. Milwaukee County, 106 Wis. 2d 685, 690, 317 N.W.2d 468 (1982). If the facts as pleaded reveal an apparent right to recover under any legal theory, they are sufficient to state a claim. Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 434-35, 400 N.W.2d 493 (Ct. App. 1986).

B. Relief Requested in Complaint

¶ 10. As noted above, a plaintiff alleging that DOT has injured him or her by unreasonably impeding the flow of water in constructing or maintaining a highway "niay bring an action in inverse condemnation under ch. 32 or sue for such other relief, other than damages, as may be just and equitable." Wis. Stat. § 88.87(2)(c). The circuit court concluded and DOT argues on appeal that the Kohlbecks' complaint fails to ask for relief "other than damages." We disagree. The Kohlbecks' amended complaint in its demand for relief requests "Injunctive relief requiring Defendant, Department of Transportation to repair the damage caused by its past conduct." This request is far from specific as it is not clear what the Kohlbecks wish DOT to do in order to repair the damage it allegedly caused. In reviewing a motion to dismiss, however, we are testing only the legal sufficiency of the complaint. We construe the complaint liberally and must determine whether the Kohlbecks are entitled to relief under any circumstances. Heinritz v. Lawrence University, 194 Wis. 2d 606, 610-11, 535 N.W.2d 81 (Ct. App. 1995). Under this test, the Kohlbecks were not required to specify exactly what their request for injunctive relief would entail. It is sufficient that they "state [d] a cause of action and ... fairly inform [ed] the opposite party of what it [was] called upon to meet by alleging specific acts." Wilson v. Continental Ins. Cos., 87 Wis. 2d 310, 317, 274 N.W.2d 679 (1979) (internal quotations omitted).

¶ 11. DOT acknowledges that the Kohlbecks' complaint seeks injunctive relief but then suggests that there is no injunctive relief to be had. In its brief and citing to the Kohlbecks' amended complaint, DOT writes: "It is undisputed that plaintiff-appellants repaired the highway to their satisfaction on their own initiative prior to this suit." Because the Kohlbecks have already fixed everything that needs fixing, DOT argues, the Kohlbecks cannot request any further in-junctive relief. %

¶ 12. This is a mischaracterization of the Kohl-becks' complaint. First, although the Kohlbecks' complaint alleges that they installed a higher curb line to protect their property, nowhere have the Kohlbecks admitted that the highway was repaired "to their satisfaction." Moreover, there is nothing in the complaint suggesting that the Kohlbecks have taken any action with regard to the alleged environmental contamination. According to the factual allegations in the complaint, which we must accept as true, additional work may be needed. DOT cannot convert the Kohlbecks' request for an injunction into one for damages by simply pointing out that the Kohlbecks have made efforts to protect their property on their own.

¶ 13. The circuit court concluded alternatively, and DOT also argues on appeal, that the Kohlbecks may not seek injunctive relief because they have failed to meet the necessary requirements for obtaining such relief. To obtain injunctive relief, a litigant generally must show that the injunction is necessary to prevent irreparable injury. See Pure Milk Prods. Co-op v. National Farmers Org., 90 Wis. 2d 781, 803, 280 N.W.2d 691 (1979) ("The purpose of an injunction is to prevent [future] violations"); see also Fromm & Sichel, Inc. v. Ray's Brookfield, Inc., 33 Wis. 2d 98, 103, 146 N.W.2d 447 (1966) ("Past injuries are in themselves no ground for an injunction, and it is only granted when necessary to restrain irreparable mischief, suppress oppressive and interminable litigation or prevent a multiplicity of suits."). In addition, he or she must show that no adequate legal remedy is available, i.e., that the injury cannot be compensated by damages. See American Mut. Liab. Ins. v. Fisher, 58 Wis. 2d 299, 305, 206 N.W.2d 152 (1973); Rapids Assocs. v. Shopko Store, Inc., 96 Wis. 2d 516, 520-21, 292 N.W.2d 668 (Ct. App. 1980).

¶ 14. These common law requirements may be modified by statute. See County of Columbia v. Bylewski, 94 Wis. 2d 153, 163, 288 N.W.2d 129 (1980) (holding that county did not have to prove irreparable injury under Wis. Stat. § 59.97 to enforce compliance with zoning ordinance because statute did not require such a showing). But neither the Kohlbecks nor DOT argue that the legislature intended to preempt the common law rules regarding injunctive relief and we conclude that it did not. Wisconsin Stat. § 88.87 does not impose on a circuit court a positive duty to grant injunctive relief under specified conditions. Rather, the statute provides an alternative remedy to an action for damages under Wis. Stat. ch. 32. Because both legal and equitable remedies are made available, but the statute indicates no "entitlement" to injunctive relief, we perceive no intent to eliminate the common law preference for legal over equitable relief. We therefore agree with the circuit court that the Kohlbecks will be required to show that an injunction is necessary to prevent future harm to their property and that they have no adequate legal remedy.

¶ 15. Although we agree that these are the general requirements for obtaining a permanent injunction, we disagree that the Kohlbecks' suit must be dismissed at the pleading stage because they have failed to show an injunction is necessary to prevent future injury or that they have no adequate remedy at law. The Kohlbecks must be given an opportunity to prove that an injunction is necessary to prevent future harm; they were not required to do this in their complaint.

¶ 16. It is also too soon to tell if the Kohlbecks have an adequate remedy at law. The circuit court pointed to Wis. Stat. ch. 32, which provides for inverse condemnation actions and is an authorized remedy under Wis. Stat. § 88.87. It then concluded that because ch. 32 provides damages, the Kohlbecks had an adequate remedy at law and therefore could not request injunctive relief. The circuit court's application of the common law rule would render meaningless the provision in § 88.87 allowing for equitable relief. Initiating a suit for inverse condemnation will always be an option under the statute. However, § 88.87(2)(c) expressly provides that injured parties may seek relief "other than damages"; the hypothetical availability of damages under ch. 32 does not mean that in each case those damages will provide an adequate remedy.

¶ 17. DOT argues incorrectly that we held in Negus v. Madison Gas & Elec. Co., 112 Wis. 2d 52, 331 N.W.2d 658 (Ct. App. 1983), that "specific performance was not [an] available remedy to [a] private landowner in [a] suit to require [a] public utility to move [an] underground cable, since [the] landowner had available [a] right of action in inverse condemnation or [a] right to sue [the] utility for damages." Specific performance was not unavailable to the plaintiff in Negus simply because legal remedies were available. Rather, the statutes at issue in Negus expressly limited the plaintiffs remedies to either an inverse condemnation action or a claim for damages. Id. at 63. Wisconsin Stat. § 88.87 expressly provides injunctive relief as a remedy. Negus, therefore, provides no support for DOT.

¶ 18. It may be that the Kohlbecks' injuries are adequately compensable in damages, but we must give them an opportunity to prove otherwise. If the Kohl-becks are continuing to suffer harm as a result of DOT's negligence, then damages under Wis. Stat. ch. 32 may not be adequate. But none of this can be decided at the pleading stage, when no facts have been developed. Admittedly, the Kohlbecks' complaint is not clear regarding exactly how DOT's past conduct continues to harm them. But both we and the supreme court have continually emphasized that notice pleading is not a "game of skill in which one misstep by counsel may be decisive of the outcome." Korkow v. General Cas. Co. of Wisconsin, 117 Wis. 2d 187, 193, 344 N.W.2d 108 (1984); Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, Inc., 86 Wis. 2d 369, 373, 272 N.W.2d 407 (Ct. App. 1978). It would be reasonable to infer from the complaint that the allegedly defective design and construction of the highway continues to cause further contamination and other harm for which damages cannot compensate. The circuit court erred in concluding that the Kohlbecks were barred from seeking injunctive relief.

C. Venue and Inverse Condemnation Claim

¶ 19. After concluding the Kohlbecks were barred from seeking injunctive relief, the circuit court determined that the Kohlbecks' complaint should be construed as seeking relief under Wis. Stat. § 32.10, the inverse condemnation statute. However, the court then noted that § 32.10 requires injured parties to "present a verified petition to the circuit judge of the county wherein the land is situated." Because the Kohlbecks' land is located in Marinette County but the action was brought in Dane County, the court concluded that the "Kohlbecks' inverse condemnation claim must be dismissed for failure to advance sufficient facts to establish this court's jurisdiction."

¶ 20. We first note that, even if we agreed with the circuit court that the Kohlbecks' had failed to state a claim under Wis. Stat. § 88.87, we would still disagree that the circuit court lacked jurisdiction to decide the Kohlbecks' claim under § 32.10. See Wis. Stat. § 801.50(1); Kett v. Community Credit Plan, Inc., 228 Wis. 2d 1, 12, 596 N.W.2d 786 (1999) ("[A] defect in venue is not a jurisdictional defect."). When venue is improper, the appropriate response is a motion for a change of venue under Wis. Stat. § 801.51, not a motion to dismiss. See State ex rel. Hansen v. Circuit Court for Dane County, 181 Wis. 2d 993, 1001-02, 513 N.W.2d 139 (Ct. App. 1994) ("Section 801.51, Stats., provides that any party may challenge venue on the grounds of noncompliance with § 801.50, Stats., by filing a motion for change of venue. The statute does not provide for dismissal of actions based on improper venue."); see also Judicial Council Notes — 1983, Wis. Stat. Ann. § 801.50 (West 1994) ("A defect in venue is not jurisdictional and does not affect the competence of the court. The cure for a defect in venue is to change the place of trial.").

¶ 21. The solution to the venue issue, however, is not as easy as a venue transfer to the county where the Kohlbecks' property is located, as directed by Wis. Stat. § 32.10. Although the Kohlbecks acknowledge the requirements of § 32.10, they refer us to another statute, Wis. Stat. § 801.50(3). That statute requires parties to bring an action in Dane County when the defendant is a state agency "unless another venue is specifically authorized by law." Although § 32.10 "specifically authorize [s]" a claim for damages in Marinette County, § 32.10 would not apply to the Kohlbecks' equitable claim under Wis. Stat. § 88.87. The Kohlbecks therefore contend that these two statutes created a dilemma; while § 32.10 required them to bring their legal claim in Marinette County, § 801.50 required them to bring their equitable claim under § 88.87 in Dane County. We are therefore faced with the question of where venue lies when two statutes direct plaintiffs to bring actions relating to the same facts in two different counties.

¶ 22. DOT suggests that the propriety of venue in Marinette County need not be decided because the Kohlbecks have failed to state a claim under Wis. Stat. § 32.10. This statute provides property owners with a remedy against the government when it has "occupied" the owner's land without instituting condemnation proceedings. The purpose of the statute is to "protect property owners against the slothful actions of a condemnor which, having constructively taken an owner's property, is in no hurry to compensate the owner." Wilkel v. DOT, 2001 WI App 214, ¶ 2, 247 Wis. 2d 626, 635 N.W.2d 213; see also Zinn v. State, 112 Wis. 2d 417, 432-33, 334 N.W.2d 67 (1983).

¶ 23. The standard for determining a violation under Wis. Stat. § 32.10 is generally the same as that for a taking under art. I, § 13. See Zinn, 112 Wis. 2d at 433; Hillcrest Golf & Country Club, 135 Wis. 2d at 435 n.1. Land is "taken" under the constitution when, among other things, there has been a "permanent physical occupation." See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428 (1982). Liberally construed, the Kohlbecks complaint alleges that the flooding has not subsided and diverted water continues to invade their property. This is sufficient to state a claim under art. I, § 13 and § 32.10. See Anhalt v. Cities and Villages Mut. Ins. Co., 2001 WI App 271, ¶¶ 29-31, 249 Wis. 2d 62, 637 N.W.2d 422; Menick v. City of Menasha, 200 Wis. 2d 737, 743, 547 N.W.2d 778 (Ct. App. 1996) (holding that there is no taking unless flooding is permanent).

¶ 24. We are therefore still left with two statutes that suggest venue for the Kohlbecks' claim lies in two different counties: Wis. Stat. § 801.50 in Dane County and Wis. Stat. § 32.10 in Marinette County. In cases involving multiple defendants and multiple transactions, the supreme court has held that the venue requirements must be satisfied for each one of them and therefore the plaintiff must file separate claims in each county. See Voight v. Aetna Cas. & Sur. Co., 80 Wis. 2d 376, 385, 259 N.W.2d 85 (1977); Caygill v. Ipsen, 27 Wis. 2d 578, 584, 135 N.W.2d 284 (1965). But this appeal relates only to one defendant and one transaction, so that is not required. Further, requiring the Kohlbecks to try their equitable claim in Dane County and their legal claim in Marinette County would be impractical if not impossible since the availability of the equitable claim is contingent on a showing that there is no adequate remedy at law.

¶ 25. Although the Kohlbecks could theoretically have initiated separate actions in both counties, given both the practical difficulties of trying the claims separately and the interest in judicial economy, it would be an erroneous exercise of discretion for a court in that situation to deny a motion for a change in venue in the interests of justice under Wis. Stat. § 801.52 so that both claims could be tried together. We therefore conclude that parties who can state a claim against DOT under both Wis. Stat. § 32.10 and Wis. Stat. § 88.87 may choose to file suit in either Dane County or the county in which the property lies. This conclusion is consistent with the purpose of venue statutes, which is to set a fair and convenient location for trial. Sharp v. Sharp, 185 Wis. 2d 416, 421, 518 N.W.2d 254 (Ct. App. 1994). Therefore, upon remand it is unnecessary to transfer the Kohlbecks' inverse condemnation claim to Marinette County.

D. Takings Claim

¶ 26. In their amended complaint, the Kohlbecks alleged: "The actions of [DOT] have resulted in a taking of the Plaintiffs private property for public use pursuant to [DOTJ's powers of eminent domain." The circuit court dismissed the Kohlbecks' takings claim, concluding that Wis. Stat. § 88.87 provided the exclusive remedy.

¶ 27. We agree with the Kohlbecks that Wis. Stat. § 88.87 cannot preempt a takings claim under the Wisconsin Constitution. See Stellpflug v. Town Bd. of Waukesha County, 2000 Wl 81, ¶ 25, 236 Wis. 2d 275, 612 N.W.2d 700. Further, we have already concluded that the Kohlbecks stated a claim under art. I, § 13. Therefore, the circuit court erred in dismissing this claim.

¶ 28. The Kohlbecks have stated a claim for relief under Wis. Stat. §§ 88.87, 32.10 and art. I, § 13. Further, there may be other statutes in Wis. Stat. ch. 32, such as Wis. Stat. § 32.18, that could provide the Kohl-becks with a remedy. Venue is appropriate in Dane County. We therefore remand to the circuit court with directions to proceed in a manner consistent with this opinion.

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

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

       DOT also initially argued that the Kohlbecks' notice of claim was defective, but the circuit court concluded that DOT had abandoned this argument. DOT does not challenge that ruling on appeal, or otherwise assert that the Kohlbecks failed to comply with notice requirements.

       DOT also cites to Stern v. Credit Bureau of Milwaukee, 105 Wis. 2d 647, 315 N.W.2d 511 (Ct. App. 1981), to support its assertion that the Kohlbecks are attempting to "amend their complaint" and should he prohibited from arguing a new "theory of reliefs on appeal. Stern bears no relation to this case. In Stem we concluded that the plaintiff could not assert a claim under the Fair Credit Reporting Act after failing to do so before the circuit court, which had granted the defendant's motion for summary judgment. Id. at 654r-55. However, legal theories need not be fully developed, or even expressly identified, at the pleading stage. Murray v. City of Milwaukee, 2002 WI App 62, ¶ 12 n.6, 252 Wis. 2d 613, 642 N.W.2d 541. Moreover, although the Kohlbecks attempt in their briefs to clarify the relief they are requesting by explaining they want DOT to remediate the environmental contamination, this is not a new "theory of relief'; they are still proceeding under Wis. Stat. § 88.87. Because it was unnecessary, as we have noted above, for the Kohlbecks to pinpoint their desired relief in their complaint, they do not need to amend their complaint to survive a motion to dismiss.

       We also note that Wis. Stat. § 88.87 does not limit property owners seeking monetary relief to remedies under Wis. Stat. § 32.10 but allows for any "action in inverse condemnation under ch. 32." This would include Wis. Stat. § 32.18, which provides property owners with a remedy against DOT when an owner's property was damaged by a change of grade in the highway, but the damage does not rise to the level of a taking. Although § 32.18 generally requires claims to be brought within ninety days of completion of the highway project, that requirement does not apply when a party is proceeding under Wis. Stat. § 88.87. The final sentence of Wis. Stat. § 32.18 provides: "This section shall in no way contravene, limit or restrict s. 88.87." This suggests that parties are not time-barred from pursuing a claim under § 32.18 so long as they have proceeded timely under § 88.87. DOT has not raised any timeliness issues on appeal.

       Wisconsin Stat. § 801.52 provides: "The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses."

       We also need not decide how Reliance Construction Co. affects the venue analysis. Because venue is not jurisdictional, it can be waived. See Wis. Stat. § 801.51(1). There is nothing in the record indicating that Reliance has filed a motion challenging the venue; it has therefore consented to venue in Dane County.


author: CANE, C.J.

text:
    In re the Marriage of: Betty A. Hutjens, n/k/a Betty A. Zirbel, Joint-Petitioner-Appellant,  v. Robert E. Hutjens, Joint-Petitioner-Respondent.
    Court of Appeals

      No. 01-3061.

      Submitted on briefs April 22, 2002.

    Decided May 14, 2002.

    2002 WI App 162
    (Also reported in 647 N.W.2d 448.)

      On behalf of the joint-petitioner-appellant, the cause was submitted on the briefs of Linda S. Isnard
      and James C. Reiher of von Briesen, Purtell & Roper, S.C. of Milwaukee.
    On behalf of the joint-petitioner-respondent, the cause was submitted on the brief of Thomas J. Walsh of Walsh & Walsh, S.C.

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

       Petition to review denied 7-26-02.

   CANE, C.J.

¶ 1. Betty Zirbel appeals an order adjudicating a post-divorce dispute regarding property division. She argues that the trial court erroneously determined that the divorce judgment was unambiguous. She also contends that the trial court erroneously denied her motion to reopen and modify the judgment on the ground of extraordinary circumstances. Because the trial court properly concluded that the amended judgment was unambiguous and that Betty's motion to reopen the judgment more than sixteen years after its entry was not within a reasonable time under Wis. Stat. § 806.07(2), we affirm the order.

BACKGROUND

¶ 2. In 1984, when Betty and Robert Hutjens divorced after twenty-two years of marriage, they retained the same attorney to represent both of them. At the time, Betty was forty-one years old and employed as a clerk at a department store. Robert was forty-three and employed as a millworker at Fort Howard Paper Company. They went to an attorney together and stated that they had an agreement. Based upon the information the parties provided, their attorney drafted a marital settlement agreement that was ultimately incorporated into the divorce judgment.

¶ 3. Betty and Robert filed a joint financial statement and stipulation. The stipulation stated that it was founded in part upon the statement of assets and liabilities set out in their financial disclosure statement and that there had been full disclosure.

¶ 4. Betty did not review any documentation concerning Robert's profit sharing account or stock owned in connection with his employment at Fort Howard. The parties stipulated that Robert was to be awarded the stock at zero value because it was "unvested until retirement." Robert was also awarded his profit sharing account valued at $55,245 and an automobile valued at $500.

¶ 5. The parties stipulated that their house was valued at $70,000. The house was not subject to a mortgage. It was awarded to Robert, minus a $55,549.50 lien in Betty's favor. Betty was also awarded a vehicle, household items, investments and a checking account, the total value of which was $14,646. This division of assets resulted in an equal property division. At the divorce hearing, there was no date set for payment of the lien and no discussion regarding interest.

¶ 6. In 1985, the parties agreed to amend the divorce judgment to provide that Robert would begin to pay $250 per month toward the satisfaction of Robert's $55,549.50 obligation to her. Betty testified that she wanted the money so she could put it in savings "for my retirement that could earn interest." The amended judgment stated:

Joint petitioner husband shall pay the sum of $250.00 per month to joint petitioner wife in satisfaction of her lien on the premises in the amount of $55,549.50, which premises are more particularly described as follows:
It is further agreed that said payment shall stop and such lien shall be satisfied in full upon the earliest of the following: Full payment of said lien or the death of Betty A. Hutjens. If said lien is extinguished by reason of the death of Betty A. Hutjens, said lien shall be satisfied in full.
Said payments shall be made on the first day of each and every month commencing August 1,1985, and said payments shall be made to Firstar Bank De Pere, 441 Main Avenue, De Pere WI 54115.

¶ 7. Again, no mention 'was made as to a date certain for the sale of the home or accrual of interest on the lien. Over the next sixteen years, Betty accepted the $250 monthly payments and did not request interest.

¶ 8. Robert made the payments as stipulated until May 2001, when he sold the house for $137,900. Because the parties disputed the balance to be paid Betty in satisfaction of her lien, Robert filed a motion requesting an order concerning the disbursement of the sale proceeds. Betty also filed a motion, asking that the judgment be clarified and reopened under Wis. Stat. § 806.07. Betty claimed that when Robert filed his financial disclosure statement in 2001, Betty first learned that the correct value of his profit sharing account at the time of the divorce was $82,940, rather than the $55,245 listed. The difference reflected employee contributions that were inadvertently undisclosed at the time of the divorce. Betty also claimed for the first time that the ninety-one shares of Fort Howard Paper Company stock, which Robert understood to be unvested and valueless in 1984, were actually vested and transferable in 1984. Their value would have been approximately $4,823 in 1984.

¶ 9. At the 2001 hearing, Betty claimed that the amended judgment should be modified to reflect interest on her lien and to include the correct values of the profit sharing account and stock. Betty had never previously requested documentation to verify the values of the pension plan or the stock but relied instead on the values stated in the parties' joint financial disclosure statement. Betty testified that at the time of the divorce, she did not ask to be awarded interest and there was no discussion of any interest payment.

¶ 10. Following the hearing, the trial court made detailed findings. The court found that the inaccurate values of the profit sharing account and the stock listed in the financial disclosures were the result of mistake, not fraud or misrepresentation. The court found that accurate information would have been available in 1984, but that Betty chose not to investigate it. The court concluded that the reason Betty did not find out the correct values of the stock and profit sharing account until 2001 was because she did not ask, concluding: "That information was available to [Betty] in 1984, both for the stock and for the retirement plan. ... And she chose not to look at it."

¶ 11. The court found that the parties had reached an agreement and retained an attorney merely to reduce their agreement to writing. It determined that "they understood what that deal was and they wanted somebody to put it on paper, so that they could get on with their lives." In addition, the court found that Betty went to the attorney in 1985 because she wanted payment "so that she could start earning interest. ... [T]hat tells me that she had an understanding that she wasn't entitled to interest up to that point."

¶ 12. The court also concluded that Betty's allegation of inadequate representation at the divorce was not compelling because the parties received the legal assistance that they had sought. The trial court determined that Betty's stipulation for the amended judgment to pay $250 per month was the result of a deliberate choice. The court stated that if the original judgment had been ambiguous, the parties could have clarified it when they amended the judgment. The court concluded that the amended judgment was not ambiguous merely because it failed to provide interest. The court also denied Betty's motion to reopen under Wis. Stat. § 806.07.

DISCUSSION

1. Claim of ambiguity

¶ 13. Betty claims that the trial court erroneously determined that the amended judgment was unambiguous. Citing Washington v. Washington, 2000 WI 47, ¶ 26, 234 Wis. 2d 689, 611 N.W.2d 261, Betty argues that Wis. Stat. § 767.32 does not preclude the court from construing ambiguous judgments. She contends that because the amended judgment was silent about interest, it must be clarified.

¶ 14. We agree that Wis. Stat. § 767.32 does not preclude a court from clarifying an ambiguous judgment. Nonetheless, we are unpersuaded that under the Washington case, any judgment that does not provide interest is ambiguous. Divorce judgments are to be construed as of the time of entry and in the same manner as other written instruments. Id. at ¶ 17. "Ambiguity exists when the language of the written instrument is subject to two or more meanings, either on its face or as applied to the extrinsic facts to which it refers." Id. at ¶ 18. A divorce judgment that is clear on its face is not open to construction. Id. at ¶ 17.

¶ 15. Determining whether an ambiguity exists is a question of law. Id. at ¶ 18. We decide questions of law independently of the circuit court, benefiting from its analysis. Id. at ¶ 4.

¶ 16. In Washington, the court was faced with the division of the husband's U.S. Civil Service Retirement System pension. Id. at ¶ 6. A 1995 divorce judgment awarded each party one-half of the total property. Id. To achieve this end, the court ordered that the $50,273 pension should be divided as follows: $23,910 to Mrs. Washington and $26,363 to Mr. Washington. Id. Neither party would be entitled to receive their share of the pension until Mr. Washington's retirement, approximately twenty-one years after the date of divorce. Id. at ¶ 7. It was undisputed that appreciation and interest would automatically accumulate on both spouses' shares of the pension.

¶ 17. In 1997, the federal Office of Personnel Management notified Mr. Washington that in order to effectuate the division of pension benefits, supplemental documents were required. Id. at ¶ 8. As a result, Mr. Washington filed a motion in circuit court requesting that the judgment be amended to reflect the suggested language. Id. at ¶ 9. At that time, the parties noted that the judgment was silent with respect to the allocation of appreciation and interest that would accumulate on both spouses' shares of the pension. Id.

¶ 18. The trial court awarded Mr. Washington alone any and all appreciation and interest that would accumulate on both spouses' shares of the pension. Id. at ¶ 12. The court of appeals affirmed on the basis that Wis. Stat. § 767.32(1)(a) barred the modification or revision of a property division. Id. at ¶ 2.

¶ 19. Our Wisconsin Supreme Court reversed, holding that the divorce judgment was ambiguous and clarification of an ambiguity does not violate Wis. Stat. § 767.32(l)(a). Id. at ¶ 4. The court ruled that as applied to the facts, the 1995 divorce judgment could have been interpreted three different ways: (1) the appreciation and interest would be pro-rated and allocated to each spouse on the basis of the lump-sum share awarded in the divorce judgment; (2) all the appreciation and interest should be awarded to the husband; or (3) all the appreciation and interest should be awarded to the wife. Id. at ¶ 27.

¶ 20. The court observed:

[Vlaluing and dividing pension benefits is one of the most difficult matters a circuit court faces in the final division of property in a divorce judgment. As one commentator put it: "The complexity of classifying, valuing and dividing these plans is unmatched by any other issue in any area of modern law."

Id. at ¶¶ 30-31 (citations omitted).

¶ 21. Our supreme court concluded that in light of the "limited language about the pension in this judgment, the complexity of dividing pensions, and the understanding that more work would be needed in this case to divide the pension," it would have been unreasonable to read Wis. Stat. § 767.32(l)(a) to prohibit the circuit court from construing the final division of the pension in order to allocate appreciation and interest on the pension. Id. It remanded to the circuit court to determine the allocation of appreciation and interest under the final property division in the divorce judgment. Id. at ¶ 35.

¶ 22. We are not persuaded that Washington supports Betty's assertion that the amended judgment is ambiguous. Monthly payments of $250 in satisfaction of Betty's lien cannot be said to present the same degree of complexity as a federal pension plan because "The complexity of classifying, valuing and dividing these plans is unmatched by any other issue in any area of modern law." Id. at ¶ 31 (quoting Brett R. Turner, Equitable Distribution of Property 288 (2d ed. 1994)). Importantly, to be distinguished from a federal civil service pension, Robert's obligation to Betty would not earn interest independent of a court award. As a result, there was no accumulated interest to be allocated and thus no corresponding ambiguity. Further, unlike a federal pension, where "[s]upple-mental documents were needed to effectuate the court's division," no additional document was needed to effectuate the amended judgment. Id. at ¶ 8. The parties did not return to court until sixteen years after the amended judgment was entered, all while Betty was receiving $250 monthly payments.

¶ 23. In contrast to Washington, the amended judgment here reveals just one interpretation, that payment was to be $250 per month with no interest provided. A divorce judgment "that is clear on its face is not open to construction." Id. at ¶ 17. Unless we find that "the language of the written instrument is subject to two or more meanings, either on its face or as applied to the extrinsic facts to which it refers" the document is unambiguous. Id. at ¶ 18. Because the amended judgment fails to disclose more than one reasonable interpretation, it is not open to construction.

¶ 24. Betty argues that under Corliss v. Corliss, 107 Wis. 2d 338, 347, 320 N.W.2d 219 (Ct. App. 1982), the trial court, in its discretion, may refuse to award interest, but failure to explain its decision is error. Corliss does not, however, involve the interpretation of an ambiguous judgment. Corliss was a direct appeal from a divorce judgment. See id. Because the trial court in Corliss did not articulate a rationale for not providing interest, our supreme court ordered the matter remanded for the trial court to award interest or state why it did not. Id. Here, Betty did not appeal the stipulated divorce judgment. Accordingly, the trial court's discretionary exercise of dividing property is not before us.

¶ 25. Paragraph deleted.

2. Motion to reopen under Wis. Stat. 806.07

¶ 26. Next, Betty argues that the trial court erroneously denied her motion to reopen and modify the amended divorce judgment under Wis. Stat. § 806.07(l)(h), and award her one-half the 1986 value of the employee contributions of Robert's profit sharing account and stock. Betty relies on subsection 1(h), under which relief may be had if "extraordinary circumstances" exist and the motion is made within a reasonable time. See Wis. Stat. § 806.07(l)(h) and (2).

¶ 27. A party has the right to seek to reopen a divorce judgment dealing with the property division even though the judgment was based on a stipulation. Conrad v. Conrad, 92 Wis. 2d 407, 413, 284 N.W.2d 674 (1979). A trial court's order denying relief from a judgment under Wis. Stat. § 806.07 will not be reversed on appeal unless it erroneously exercised its discretion. State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 541, 363 N.W.2d 419 (1985). We will not find an erroneous exercise of discretion if the record shows that the trial court exercised its discretion and that there is a reasonable basis for the court's determination. Id. at 542.

¶ 28. The timeliness of motions under Wis. Stat. § 806.07(l)(h) is "not subject to .. . bright-line rules." State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 632, 511 N.W.2d 868 (1994). "[P]rior decisions have not attempted to define precisely how 'reasonableness' should be determined in the context of § 806.07(1)(h), Stats. To a large extent, of course, the term defies precise definition." Id. at 626.

In some instances, such factors will include those "extraordinary circumstances" which justify relief on substantive grounds. This is not to say that all the "extraordinary circumstances" in a case will factor into the "reasonable time" inquiry, nor does it mean that a motion will be timely whenever "extraordinary circumstances" exist. The point is that the two analyses, while separate, cannot be completely divorced.

Id. at 628. These factors include whether the judgment was the result of a conscientious, deliberate and well-informed choice, the adequacy of counsel's representation, whether there has been a decision on the merits, whether there is a meritorious defense and whether intervening circumstances make it inequitable to grant relief. M.L.B., 122 Wis. 2d at 552-53.

¶ 29. The record reflects that the trial court understood and properly applied the correct analysis. Although Betty claimed not to have learned of the inaccuracies in the financial disclosure statement until 2001, the court found that this was because Betty did not ask. The court determined that Robert had an interest in relying on the finality of the judgment. "We are mindful — and the circuit courts should be mindful — that finality is important and that subsection (h) [of Wis. Stat. § 806.07] should be used sparingly." Id. at 550. The court concluded that given the lack of action on Betty's part for more than sixteen years, the interest of finality of judgments outweighed the interest of reopening the amended judgment to have a trial on the merits. Because the court articulated a rational basis grounded on a correct application of the law to facts of record, we do not disturb the court's determination.

CONCLUSION

¶ 30. We conclude that mere silence regarding interest does not render the amended judgment ambiguous. Here, Betty did not question the amended judgment until more than sixteen years after its entry. The record reflects a rational basis for the trial court's decision that Betty did not move to reopen within a reasonable time under Wis. Stat. § 806.07. Consequently, its decision is sustained on appeal.

By the Court. — Order affirmed.

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

       In addition to a lien to secure Robert's obligation, Betty was named beneficiary on Robert's life insurance policy and profit sharing plan.

       Consistent with the trial court's observations, we agree that this case is a good example why one lawyer should not represent two parties in a divorce.

       Wisconsin Stat. § 767.32(1), "Revision of certain judgments" provides in part: "[N]or shall the provisions of a judgment or order with respect to final division of property be subject to revision or modification."

       Wisconsin Stat. § 806.07, "Relief from judgment or order," provides in part:

        (1) On motion and upon such terms as are just, the court, subject to subs. (2) and (3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
      (h) Any other reasons justifying relief from the operation of the judgment.
      (2) The motion shall be made within a reasonable time, and, if based on sub. (1)(a) or (c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (l)(b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This áection does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.