author: PETERSON, J.

text:
    Gary Hannemann, Plaintiff-Respondent,  v. Craig Boyson, D.C., Defendant-Appellant.
    Court of Appeals

      No. 03-1527.

      Submitted on briefs February 10, 2004.

    Decided April 13, 2004.

    2004 WI App 96
    (Also reported in 681 N.W.2d 561.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Patrick F. Koenen of Hinshaw & Culbertson, Appleton.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí John C. Peterson and Jolene D. Schneider oí Peterson, Berk & Cross, S.C., Appleton.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition for Review granted 9-16-04.

   PETERSON, J.

¶ 1. Craig Boyson, a chiropractor, appeals a judgment finding him negligent in his care and treatment of Gary Hannemann. Hannemann suffered a stroke after Boyson gave him a cervical adjustment. Boyson argues the court erred by (1) eliminating the final paragraph from the standard informed consent jury instruction, and (2) giving a standard causation instruction rather than one that would allow the jury to find partial causation from another source. We disagree and affirm on these issues. Boyson further argues the special verdict was erroneous because it only asked whether Boyson was negligent in his treatment. Boyson argues failure to obtain informed consent and negligent treatment are two different issues that require different verdict questions. We agree with Boyson on this issue and reverse that part of the judgment and remand for a new trial.

BACKGROUND

¶ 2. Boyson saw Hannemann approximately forty times between July 22, 1996, and August 23, 1997, for neck and back treatments. Boyson explained the treatments he would perform, including risks and benefits. Boyson admits, however, that he did not discuss the risk of neurovascular injury because he thought the risk was "astronomical" and based on "controversial" research.

¶ 3. Hannemann claims Boyson injured him on August 21, 1997, while performing a cervical adjustment. Hannemann described the adjustment as involving Boyson placing his hands on either side of Hannemann's head and rotating or twisting the head until there was a crack. Hannemann claimed he experienced pain at the time of the adjustment, but by the time he left Boyson's office he no longer felt any pain. At trial, Boyson disputed Hannemann's description of the adjustment. He denied forcefully twisting or rotating Hannemann's head.

¶ 4. The next morning, Hannemann went to work. In the afternoon, he noticed his left leg "acting up." He called Boyson's office and scheduled an appointment for the next day, August 23. Hannemann stated that when he went in, Boyson performed reflex testing and did another cervical adjustment. Boyson denied performing a second adjustment during this visit. He recalled only gently stretching the muscles in Hannemann's neck and advising him to go to the emergency room for an evaluation. Hannemann denies he was told to go to the emergency room, stating that he would have gone if Boyson had advised him to do so. Hannemann stated he continued to feel tingling in his leg after he left Boyson's office and his leg felt "different."

¶ 5. At approximately three the next morning, August 24, Hannemann awoke. He felt paralyzed on his left side. His wife took him to the emergency room. Initially, Hannemann was discharged. However, Han-nemann and his wife returned to the hospital several hours later when Hannemann's condition did not improve. A neurosurgeon then determined his paralysis was caused by a stroke.

¶ 6. Hannemann commenced an action against Boyson, alleging Boyson negligently provided chiropractic treatment and caused permanent injury. A jury trial took place February 17-20, 2003. Hannemann argued Boyson was negligent in two respects. First, Boyson deviated from the standard of care in performing adjustments on August 21 and August 23. Second, Boyson failed to inform Hannemann of the risk of neurological injuries following cervical adjustments.

¶ 7. Several expert witnesses, as well as Hannemann's treating physicians, testified that the cervical adjustments caused the stroke. Defense experts disagreed. One testified Hanneman's earlier bout with meningitis was the cause.

¶ 8. At the jury instruction conference, Boyson asked that the court give Wis JI — Civil 1023.2, regarding informed consent. The court did so but deleted the last paragraph, which defines limits and exceptions to the duty to disclose.

¶ 9. Boyson also requested that the special verdict include the informed consent questions from Wis JI— Civil 1023.1. The court rejected this request and submitted a special verdict with only a single general question on negligence.

¶ 10. Boyson also requested Wis JI — Civil 1023.8, which would have instructed the jury to separate injuries caused by chiropractic care and those caused by meningitis. The court rejected this request and instead gave the standard cause instruction from Wis JI — Civil 1500.

¶ 11. The jury returned a verdict in favor of Hannemann, finding Boyson causally negligent. It awarded Hannemann $227,000.

DISCUSSION

¶ 12. "The trial court has broad discretion when instructing a jury." Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992). "If an appellate court can determine that the overall meaning communicated by the instruction as a whole was a correct statement of the law, and the instruction comported with the facts of the case at hand, no ground[] for reversal exists." White v. Leeder, 149 Wis. 2d 948, 954-55, 440 N.W.2d 557 (1989). Moreover, "[e]ven if we find an instruction to be erroneous in part or in whole, a new trial is not warranted unless we also find that the error is prejudicial." Muskevitsch-Otto v. Otto, 2001 WI App 242, ¶ 6, 248 Wis. 2d 1, 635 N.W.2d 611. Accordingly, "an erroneous jury instruction is not fatal unless we are satisfied that it is probable — not merely possible — that the error affected the jury's determination." Id.

A. Wis JI — Civil 1023.2

¶ 13. The court instructed the jury with the first three paragraphs of Wis JI — Civil 1023.2, regarding Boyson's obligation to obtain informed consent. However, the pattern instruction also contains a fourth paragraph, which states:

If (doctor) offers to you an explanation as to why (he) did not provide information to (plaintiff), and if this explanation satisfies you that a reasonable person in (plaintiffs) position would not have wanted to know that information, then (doctor) was not negligent.

Boyson argues it was error for the court to omit this paragraph. He maintains he explained to the jury why he did not inform Hannemann about the risk of stroke —Boyson believed the risk was "astronomical" and the studies regarding the risk were "controversial." Thus, Boyson argues the jury should have been instructed that if Boyson's explanation was reasonable, it could find he was not negligent by failing to inform Hanne-mann of the risk.

¶ 14. However, Boyson's explanation was covered by the first three paragraphs. These paragraphs stated that a chiropractor must provide information that a reasonable person in the patient's position would want to know. They also stated that a chiropractor is not required to disclose extremely remote possibilities. This was sufficient to cover Boyson's explanation that the risk was "astronomical" and the studies "controversial." Consequently, in this case, the fourth paragraph of the instruction would have merely repeated what the jury was already told within the first three paragraphs. It was not an erroneous exercise of discretion to omit the fourth paragraph from the instruction.

B. Wis JI — Civil 1023.8

¶ 15. Boyson next argues the court erred by not giving the jury the portion of Wis JI — Civil 1023.8 regarding causation but instead Wis JI — Civil 1500, the standard cause instruction. Boyson notes that one expert witness testified that Hannemann's meningitis caused the injuries. Consequently, Boyson argues the jury should have been instructed with Wis JI — Civil 1023.8 that it could separate the portion of the injury caused by meningitis from the portion caused by the adjustment.

¶ 16. However, Boyson's expert witness testified that meningitis was the sole cause of Hannemann's injuries. He did not say that the meningitis and the adjustment were each causes. There was no evidence from which the jury could determine that the meningitis and the adjustment each partially caused the injuries. Consequently, Wis JI — Civil 1023.8 would have confused the jury as to the meaning of cause given the evidence presented in this case. Thus, Wis JI — Civil 1500 was proper.

C. Wis JI — Civil 1023.1

¶ 17. Boyson argues the court erred by submitting a single verdict question about negligent treatment. Boyson contends the jury should also have been given verdict questions regarding failure to obtain informed consent. He argues negligence in treatment and negligence for failure to obtain informed consent are separate and distinct concepts. See Johnson v. Kokemoor, 199 Wis. 2d 615, 629 n.16, 545 N.W.2d 495 (1996).

¶ 18. Hannemann responds that Wis JI — Civil 1023.1, which contains the separate informed consent verdict, is to be used only in medical informed consent cases, not in chiropractic informed consent cases. Han-nemann contends the informed consent verdict form is based on Wis. Stat. § 448.30, which regulates the licensure of medical doctors. Since § 448.30 does not regulate chiropractors, he concludes the verdict form derived from the statute does not apply to chiropractors. Hannemann cites Murphy v. Nordhagen, 222 Wis. 2d 574, 588 N.W.2d 96 (Ct. App. 1998), for the proposition that a chiropractor has no duty under § 448.30 to obtain informed consent prior to treatment. In Murphy, we determined that § 448.30 applied only to physicians and so was "facially inapplicable" to chiropractic cases. Id. at 584. Thus, Hannemann concludes that a separate informed consent verdict was not necessary and the trial court correctly instructed the jury.

¶ 19. At the time we decided Murphy, chiropractors were not required to obtain informed consent. Since then, the law has changed to require chiropractors to obtain informed consent prior to treatment. The Chiropractic Examining Board created Wis. Admin. Code § Chir. 11.02(5), which states: "Patient records shall include documentation of informed consent of the patient, or the parent or guardian of any patient under the age of 18, for examination, diagnostic testing and treatment."

¶ 20. Granted, Wis JI — Civil 1023.1 is based on Wis. Stat. § 448.30, which applies specifically to medical informed consent. However, the legal theories of informed consent for medical doctors and for chiropractors are the same. Further, the principles behind the theories are identical. It has long been recognized that individuals have the right to self-determination, including the right to refuse treatment in whole or in part. See In re Guardianship of L.W., 167 Wis. 2d 53, 68, 482 N.W.2d 60 (1992). The United States Supreme Court has stated, "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Id. (quoting Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)).

¶ 21. This principle of self-determination has been extended to the doctrine of informed consent: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." Id. (quoting Scholendorff v. Society of New York Hosp., 105 N.E. 92-93 (1914)). Our supreme court has recognized that the right to liberty under the state constitution "includes an individual's choice of whether or not to accept medical treatment." L.W., 167 Wis. 2d at 69. These principles underlying the doctrine of medical informed consent apply with equal force to the doctrine of chiropractic informed consent. As our supreme court has observed, both medical doctors and chiropractors are "health care providers." Arenz v. Bronston, 224 Wis. 2d 507, 515-16, 592 N.W.2d 295 (1999). Both are involved in the diagnosis, treatment or care of patients and both are licensed by state examining boards. Id. For these reasons, we conclude that Wis JI — Civil 1023.1 is a model for chiropractic negligence as well as medical informed consent.

¶ 22. A special verdict must cover material issues of ultimate fact. Flescher v. Wisconsin Patients Comp. Fund, 256 Wis. 2d 848, 853, 650 N.W.2d 75 (2002). If it does not, it is defective. Wis. Stat. § 805.12(1). In order to succeed on a claim for failure to obtain informed consent, Hannemann must prove (1) that he was not informed of the risks, (2) that he would not have undergone the treatment had he known of the risks, and (3) the procedure caused the injury. See id. at 854. Here, the jury was not asked to determine whether all the elements were present. Instead, the jury only had to answer whether "Dr Craig Boyson [was] negligent with respect to his care and treatment of Gary Hannemann in August of 1997." The jury answered "yes." Thus, the verdict questions did not cover the material issues of ultimate fact necessary to prove Boyson failed to obtain Hannemann's informed consent. See id. at 853.

¶ 23. Hannemann argues that even if failure to submit informed consent verdict questions was error, it was harmless. We disagree. The standard for harmless error is the same for civil, as well as criminal, cases. Town of Geneva v. Tills, 129 Wis. 2d 167, 184-85, 384 N.W.2d 701 (1986). The test is whether there is a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). A reasonable possibility of a different outcome is a possibility sufficient to "undermine confidence in the outcome." Id. at 545.

¶ 24. Here, our confidence in the verdict is undermined because we do not know whether the jury would have found that all three elements were present. Indeed, we do not know whether the jury found Boyson guilty of negligent treatment or failure to obtain informed consent. Thus, we conclude it is reasonably possible the error affected the jury's determination. See id. The error was not harmless. Consequently, we reverse that part of the judgment and remand the matter for a new trial.

By the Court. — Judgment affirmed in part; reversed in part, and cause remanded with directions. No costs awarded.

       The court instructed as follows:
      A chiropractor has the duty to provide his patient with information necessary to enable the patient to make an informed decision about a procedure and alternative choices of treatments. If the doctor fails to perform this duty, he is negligent.
      To meet this duty to inform his patient, the chiropractor must provide his patient with the information a reasonable person in the patient's position would regard as significant when deciding to accept or reject the medical treatment. In answering this question, you should determine what a reasonable person in the patient's position would want to know in consenting to or rejecting a medical treatment.
      However, the chiropractor's duty to inform does not require disclosure of:
      Information beyond what a reasonably, well-qualified chiropractor in a similar classification would know;
      Extremely remote possibilities that might falsely or detrimentally alarm the patientf]

       The court did read to the jury the portion of Wis JI — Civil 1023.8 regarding negligence, but replaced the section on cause with Wis JI — Civil 1500:
      Questions in the special verdict asks about the cause of the injury. These questions do not ask about "the cause" but rather "o cause" because an injury may have more than one cause. An injury may be caused by one person's negligence or by the combined negligence of two or more people.

        You must decide whether someone's negligence caused the injury. Someone's negligence caused the injury if it was a substantial factor in producing the injury

       In relevant part, Wis JI — Civil 1023.8 states:
      It will, therefore, he necessary for you to distinguish and separate, first, the natural results in damages that flow from (plaintiff's original (illness) (injuries) and, second, those that flow from (chiropractor)'s treatment and allow (plaintiff) only the damages that naturally resulted from the treatment by (chiropractor).

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

       WISCONSIN Stat. § 446.02 authorizes the Chiropractic Examining Board to create rules regulating the creation and maintenance of patient records.

       Needless to say, the instruction must be modified in chiropractic cases to refer to chiropractors, not to medical doctors. For example, a chiropractor has a duty to inform about alternative, viable chiropractic modes of treatment, not medical modes. Further, a chiropractor need not inform a patient about information beyond what a reasonably well-informed chiropractor would know, not what a physician would know.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    Tri-State Mechanical, Inc. and Roffers Construction Company, Inc., Petitioners, v. Northland College, Defendant-Respondent, Northwoods Paving Company, Defendant, Wynn O. Jones & Associates, Inc., Defendant-Appellant. Northland College, Third-Party Plaintiff-Respondent, v. Frank Tomlinson Co., Inc.,Third-Party Defendant.
    Court of Appeals

      No. 03-2182.

      Submitted on briefs March 3, 2004.

    Decided April 13, 2004.

    2004 WI App 100
    (Also reported in 681 N.W.2d 302.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven M. Anderson and Melissa S. Kampmann of Ruder, Ware & Michler, L.L.S.C. of Wausau.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Lowell J. Noteboom, Robert J. Huber and Mary E. Schwind of Leonard, Street & Deinard of Minneapolis, MN.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Wynn O. Jones & Associates, Inc. (Jones), appeals a judgment dismissing its claims for labor costs against Northland College. Jones argues the trial court erred by concluding Jones (1) tendered a valid construction lien waiver and (2) could not recover the reasonable value of its services on an unjust enrichment theory. We affirm the judgment.

¶ 2. Northland contracted with Frank Tomlinson Company, Inc., to build a new science building on Northland's campus. The contract required Northland to pay Tomlinson its costs, plus a markup for overhead and profit up to a guaranteed maximum price, which in the end totaled nearly $5 million.

¶ 3. Tomlinson subcontracted with Jones to provide labor for the installation of the science lab case work materials. According to the subcontract, Tomlin-son was supposed to pay Jones $96,800. The contract contained a construction lien waiver provision that required, "as an explicit condition precedent to the accrual of [Jones'] right to final payment," Jones to "furnish[] [Tomlinson] with a properly executed and notarized copy of a Release and Waiver of liens." Jones performed all the necessary work and submitted a construction lien waiver for $96,800, which Tomlinson forwarded to Northland. While Northland paid Tomlin-son the full contract price of nearly $5 million pursuant to their contract, Tomlinson never paid Jones the $96,800 it was owed, and Tomlinson went out of business before all work was finished on the science building.

¶ 4. Five months after Jones completed work, it filed a construction lien against Northland for $96,800. After Tri-State Mechanical, Inc., another subcontractor that had not been paid, sued Northland, Tomlinson, and a host of other parties that included Jones, Jones cross-claimed against Northland seeking lien foreclosure or, alternatively, compensation for its work on an unjust enrichment theory. Northland answered that Jones waived its lien rights by furnishing a construction lien waiver.

¶ 5. After a court trial, the court dismissed Jones' claims against Northland. The court concluded that while the lien waiver provision in Jones' contract with Tomlinson was void pursuant to Wis. Stat. § 779.135, Jones nevertheless produced a valid lien waiver before having been paid. Therefore, the court concluded Jones' construction lien was unenforceable in the first place. The court also concluded Jones could not recover from Northland for unjust enrichment because Northland had already paid Tomlinson, the prime contractor, the full contract price for the benefits it received. Jones appeals.

Discussion

I. Lien Waiver

¶ 6. Jones first argues that because Wis. Stat. § 779.135(1) voids the construction lien waiver provision in its contract with Tomlinson, its subsequent lien waiver, submitted in reliance upon that provision, should be void. To conclude otherwise, Jones argues, renders § 779.135(1) meaningless. See State v. Eichman, 155 Wis. 2d 552, 560, 456 N.W.2d 143 (1990) ("A statute should be construed so as to not render any part of it superfluous, if such construction can be avoided.").

¶ 7. Statutory interpretation is a question of law we review de novo. German v. DOT, 2000 WI 62, ¶ 7, 235 Wis. 2d 576, 612 N.W.2d 50. The goal of statutory interpretation is to discern the legislature's intent. State v. Byers, 2003 WI 86, ¶ 13, 263 Wis. 2d 113, 665 N.W.2d 729.

¶ 8. Jones correctly indicates that Wis. Stat. § 779.135(1) voids a provision that requires a subcontractor to waive its right to a construction lien before it can get paid. We also agree with Jones' assertion that the policy behind the statute was to ensure that contractors and subcontractors were paid for their work before they were required to produce a lien waiver. And we further agree with Jones that one of the general purposes of construction lien laws is to protect subcontractors of building projects. See Kraemer Bros. v. Pulaski State Bank, 138 Wis. 2d 395, 399, 406 N.W.2d 379 (1987).

¶ 9. However, we do not agree that the construction lien waiver filed by Jones is consequently void. Wisconsin Stat. § 779.05(1) specifically allows a subcontractor who has signed a contract containing a lien waiver provision to "refuse to furnish a waiver unless paid in full for the work or material to which the waiver relates." Thus, the legislature has provided a subcontractor facing a void construction lien waiver contract provision with a choice: it can either tender a lien waiver prior to being paid or refuse to do so until it is paid. By giving the subcontractor a choice, the legislature has essentially made a policy decision that endorses whatever course of action the subcontractor takes. Here, Jones submitted a construction lien waiver before being paid notwithstanding the void contract waiver provision. In light of § 779.05(1), Jones' construction lien waiver is valid.

¶ 10. Jones argues this conclusion places an unreasonable level of legal sophistication on subcontractors and assumes Jones knew it could refuse to comply with a void contract provision. However, as a general proposition, every person, sophisticated or otherwise, is presumed to know the law. Putnam v. Time Warner Cable, 2002 WI 108, ¶ 13 n.4, 255 Wis. 2d 447, 649 N.W.2d 626. Thus, Jones' argument is of no avail.

¶ 11. Jones also contends the lien waiver should not bar it from foreclosing on its lien because Northland could not have reasonably relied upon the lien waiver. Without finding any Wisconsin authority to support this contention, Jones directs us to Fisher v. Harris Bank & Trust Co., 506 N.E.2d 418, 423 (Ill. App. Ct. 1987), where the Illinois Appellate Court held that "while a clear unambiguous waiver of mechanic's lien rights bars an action under the Mechanics' Lien Act, this rule is only applicable where an innocent party has relied upon that waiver in making payments to the general contractor." Jones claims we should apply this principle to construction liens and, when applied, we should conclude Northland was not an innocent party that relied on the lien waiver given its knowledge that Tomlinson had not been paying Jones for its work.

¶ 12. We reject Jones' invitation to supplement the statute with an "innocent party" requirement because this is a matter for legislative action. Quite simply, "It is not the function of the court to add language to a statute ...." State ex rel. USF&G Co. v. Smith, 184 Wis. 309, 316, 199 N.W. 954 (1924).

II. Unjust Enrichment

¶ 13. Jones' second argument is that the trial court erroneously exercised its discretion when it concluded Jones could not recover under a theory of unjust enrichment. While a trial court's decision to grant equitable relief in an action for unjust enrichment is discretionary, see Ulrich v. Zemke, 2002 WI App 246, ¶ 8, 258 Wis. 2d 180, 654 N.W.2d 458, the application of the facts to the unjust enrichment legal standard is a question of law that we review de novo. Waage v. Borer, 188 Wis. 2d 324, 328, 525 N.W.2d 96 (Ct. App. 1994).

¶ 14. To recover on a claim for unjust enrichment, three elements must be proven: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit; and (3) the acceptance or retention by the defendant of the benefit under circumstances that makes its retention inequitable. S & M Rotogravure Serv. v. Baer, 77 Wis. 2d 454, 460, 252 N.W.2d 913 (1977).

¶ 15. Jones acknowledges that a claim for unjust enrichment is not available to an unpaid subcontractor if the owner — that is, the recipient of the benefits — has already paid for the benefits conferred, even though the subcontractor has not received payment from the general contractor. See Puttkammer v. Minth, 83 Wis. 2d 686, 690, 266 N.W.2d 361 (1978). Nevertheless, it argues its unjust enrichment claim does not fail because there was no evidence that Northland issued any check to Tomlinson specifically for the work Jones performed.

¶ 16. However, Jones has not provided us with any authority that requires an owner to issue payments to a general Contractor designated as payment to a subcontractor for specific work the subcontractor performed. Here, it is unrefuted that Northland paid Tomlinson the contract price plus excess costs. Thus, Northland has fully paid for the benefits it received. Therefore, because Jones' unjust enrichment claim fails as a matter of law, the trial court did not erroneously exercise its discretion by denying Jones equitable relief.

By the Court. — Judgment affirmed.

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

       Wisconsin Stat. § 779.135 states in relevant part:
      The following provisions in contracts for the improvement of land in this state are void:
      (I) Provisions requiring a contractor, subcontractor or material supplier to waive his or her right to a construction hen or to a claim against a payment bond before he or she has been paid for the labor or materials or both that he or she furnished.

       Wisconsin Stat. § 779.05(1) reads in full:
      Any document signed by a lien claimant or potential claimant and purporting to be a waiver of construction lien rights under this subchapter, is valid and binding as a waiver whether or not consideration was paid therefor and whether the document was signed before or after the labor or material was furnished or contracted for. Any ambiguity in such document shall be construed against the person signing it. Any waiver document shall be deemed to waive all lien rights of the signer for all labor and materials furnished or to be furnished by the claimant at any time for the improvement to which the waiver relates, except to the extent that the document specifically and expressly limits the waiver to apply to a particular portion of such labor and materials: A lien claimant or potential lien claimant of whom a waiver is requested is entitled to refuse to furnish a waiver unless paid in full for the work or material to which the waiver relates. A waiver furnished is a waiver of hen rights only, and not of any contract rights of the claimant otherwise existing. (Emphasis added.)


author: ANDERSON, PJ.

text:
    State of Wisconsin ex rel. Daniel Harr, Petitioner-Appellant, v. Gerald Berge and John Sharpe, Respondents-Respondents.
    Court of Appeals

      No. 03-2611.

      Submitted on briefs February 23, 2004.

    Decided April 14, 2004.

    2004 WI App 105
    (Also reported in 681 N.W.2d 282.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Daniel Harr, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the brief of David E. Hoel, assistant attorney general and Peggy A. Lauten-schlager, attorney general.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.

       Petition to review denied 8-2-04.

   ANDERSON, PJ.

¶ 1. Daniel Harr appeals from the decision of the trial court that he is not entitled to costs and fees even though he prevailed in vindicating a limited First Amendment right. We affirm, given that the statutory bar preventing prevailing prisoners from recovering costs and fees is supported by the rational basis that the public treasury is not available to finance lawsuits brought by prisoners.

¶ 2. Harr, while an inmate at the Supermax prison, successfully pursued a common law certiorari action to overturn a disciplinary reprimand imposed after prison authorities intercepted a letter to Harr's parents in which he described a corrections officer in derogatory terms. After the circuit court issued its order overturning the disciplinary action taken against Harr, he filed a request for fees and costs totaling $609.18. The State opposed Harr's request, contending that Wis. Stat. § 814.25(2) (2001-02) specifically precluded the court from granting the request. The circuit court, agreeing with the State, denied Harr's motion. Six months after the denial of his request, Harr filed a motion for reconsideration relying upon the decision of another branch of the Dane County Circuit Court, which had held that § 814.25(2) was unconstitutional. The circuit court denied the motion to reconsider and reaffirmed its decision that, under the statute, Harr was not entitled to costs and fees.

¶ 3. Harr appeals. He contends that Wis. Stat. § 814.25(2) violates his constitutional right to equal protection because it prohibits him from an award of costs and fees after he prevailed in a common law certiorari action.

¶ 4. The pertinent portions of Wis. Stat. § 814.25 provide:

(1) In this section:
(a) "Prisoner" has the meaning given in s. 801.02(7)(a)2.
(b) "Prison or jail conditions" has the meaning given in s. 801.02 (7)(a)3.
(2) (a) Except as provided in par. (b), if a prisoner brings an action or special proceeding related to prison or jail conditions, no costs may he allowed against the state, a state agency or a county, city, village or town, or against any individual defendant when sued in an official capacity.

¶ 5. In reviewing a challenge to the constitutionality of a statute, we presume that the statute is constitutional and resolve any doubt in favor of the constitutionality of the statute. Aieher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶ 18, 237 Wis. 2d 99, 613 N.W.2d 849. Both the Fourteenth Amendment to the United States Constitution and article I, section 1 of the Wisconsin Constitution guarantee equal protection of the laws and afford substantially the same protections. Group Health Co-op. v. DOR, 229 Wis. 2d 846, 855, 601 N.W.2d 1 (Ct. App. 1999). Equal protection guarantees that similarly-situated persons are treated similarly. Telemark Dev., Inc. v. DOR, 218 Wis. 2d 809, 826, 581 N.W.2d 585 (Ct. App. 1998). However, "[e]qual protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made." State v. Post, 197 Wis. 2d 279, 321, 541 N.W.2d 115 (1995) (citing Baxstrom v. Herold, 383 U.S. 107, 111 (1966)). In cases where a statutory classification does not involve a suspect class or a fundamental interest, the classification will be upheld if there is any rational basis to support it. Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 79, 98, 387 N.W.2d 254 (1986). Thus, "[t]he basic test is not whether some inequality results from the classification but whether there exists a rational basis to justify the inequality of the classification." Id. at 99.

¶ 6. The rational relationship test is used to analyze an equal protection challenge where neither a fundamental right is at stake nor a suspect class is involved. State ex rel. Griffin v. Litscher, 2003 WI App 60, ¶ 17, 261 Wis. 2d 694, 659 N.W.2d 455. There is no fundamental right to have the loser in a lawsuit or the public treasury reimburse the winner. See Johnson v. Daley, 339 F.3d 582, 586 (7th Cir. 2003), cert. denied, 124 S. Ct. 1654 (U.S. Mar. 22, 2004) (No. 03-732). This is especially true if the loser is the state, since it is a long-standing rule that costs and fees cannot he taxed against the state without express statutory authority. Martineau v. State Conservation Comm'n, 54 Wis. 2d 76, 79, 194 N.W.2d 664 (1972).

¶ 7. Harr and the State agree that because prisoners do not constitute a suspect class for equal protection purposes, Johnson, 339 F.3d at 585-86, "the principle of equal protection requires only that the classification bear a 'rational relation to some legitimate end,'" State ex rel. Khan v. Sullivan, 2000 WI App 109, ¶ 9, 235 Wis. 2d 260, 613 N.W.2d 203 (citation omitted).

Under the rational basis test, a statute is unconstitutional if the legislature applied an irrational or arbitrary classification when it enacted the provision. The task of drawing lines between different classifications is a legislative one in which perfection "is neither possible nor necessary." It is not our role to determine the wisdom or rationale underpinning a particular legislative pronouncement. This court therefore must sustain a statute unless we find that "it is 'patently arbitrary' and bears no rational relationship to a legitimate government interest." Recognizing that classifications often are imperfect and can produce inequities, our goal is to determine whether a classification scheme rationally advances a legislative objective. In so doing, we are obligated to locate or, in the alternative, construct a rationale that might have influenced the legislative determination.

Aicher, 237 Wis. 2d 99, ¶ 57 (citations omitted).

¶ 8. Harr has the difficult burden to prove that Wis. Stat. § 814.25(2) lacks a rational relationship to a valid government objective. See Thorp v. Town of Lebanon, 2000 WI 60, ¶ 44, 235 Wis. 2d 610, 612 N.W.2d 59. Even in the face of an equal protection challenge, we must presume that the statute is constitutional. Id. Harr faces the frequently insurmountable task of proving beyond a reasonable doubt that the statute possesses no rational basis to any legitimate state objective. See id.

¶ 9. In his attack on Wis. Stat. § 814.25(2), Harr concedes that the Prison Litigation Reform Act (PLRA) is a rational means of limiting meritless litigation by pro se prisoners. He asserts that the State has no compelling interest in preventing him, or any prisoner, from litigating a meritorious claim and that the statute is, therefore, not rationally related to any state interest. Relying on Johnson, 339 F.3d at 587, Harr claims that whether the distinction between prisoners' suits and those brought by free persons is rational depends upon answering the question: "equal with respect to what." He goes on to argue that the underlying action was an attempt to vindicate his First Amendment right of freedom of speech, a right he does not forfeit as a prisoner and his right is equal with the same right held by a free person. He infers that because he has the same right to freedom of speech as a free person, he must he treated identically with a free person who has prevailed on the same claim and be allowed his recovery of costs and fees.

¶ 10. Harr's argument is unpersuasive. The equal protection clause does not require that all people with the same rights be treated identically, Post, 197 Wis. 2d at 321; it only requires that there be a rational basis for the classifications established by the legislature, Khan, 235 Wis. 2d 260, ¶ 9. In determining whether there is a rational basis for legislative action which permits a free person to recover costs and fees after prevailing in a lawsuit but which bars a prisoner from recovering costs and fees under similar circumstances, we turn to the reasons for the enactment of the PLRA. "The inspiration for passage of the PLRA came from the federal PLRA, which seeks to curtail malicious and frivolous inmate lawsuits about prison conditions." State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶ 38, 236 Wis. 2d 473, 613 N.W.2d 591. However, Wisconsin's version of the PLRA is much broader; after reviewing the legislative history of Wisconsin's PLRA, the Cramer court wrote that "the legislature intended to address the costly problems caused by prisoner litigation more expansively than the federal law." Id., ¶ 39. To achieve that goal, the legislature designed the PLRA to broadly limit prisoner litigation at taxpayers' expense. Id., ¶ 40. Thus, we see that Wisconsin's PLRA serves two distinct purposes: first, deter frivolous lawsuits and second, limit prisoner litigation that is subsidized by the taxpayer. Id.

¶ 11. We have previously held that "the state has a legitimate interest in deterring frivolous lawsuits and preserving judicial resources." Khan, 235 Wis. 2d 260, ¶ 10. Harr has no complaint with our observation:

Distinguishing between prisoners and non-prisoners is a rational means of limiting frivolous litigation because it has been recognized that prisoners, as a group, have little incentive for refraining from suit, and account for a disproportionate amount of meritless litigation.

Id. Harr's complaint is that the PLRA denies him equal protection when it bars him from recovering costs and fees after he has proven the merits of his litigation by winning. His complaint ignores the second goal of Wisconsin's PLRA, "to limit broadly prisoner litigation at taxpayers' expense." Cramer, 236 Wis. 2d 473, ¶ 40 (emphasis added). For Harr to be successful, he must convince us that there are no grounds that can be conceived to justify barring the award of costs and fees to a successful prisoner. See Johnson, 339 F.3d at 586.

¶ 12. The general rule is that each party bears its own costs of litigation, no matter how meritorious their claim or defense. This general rule is known as the "American Rule"; commonly stated, it provides, "that attorney's fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor. Each party to a lawsuit, under this theory, should bear its own costs of litigation." Kremers-Urban Co. v. Am. Employers Ins. Co., 119 Wis. 2d 722, 744, 351 N.W.2d 156 (1984). As we recently explained in Bank One v. Koch, 2002 WI App 176, ¶¶ 10-11, 256 Wis. 2d 618, 649 N.W.2d 339, review denied, 2002 WI 121, 257 Wis. 2d 119, 653 N.W.2d 891 (Wis. Sept. 3, 2002) (No. 01-2174), the "American Rule" is firmly rooted in the jurisprudence of this state; it was adopted by the Supreme Court of the United States in 1796 and by the Wisconsin Supreme Court in 1846.

¶ 13. We agree with the 7th Circuit Court of Appeals that the "American Rule" is one rational solution to the question " 'how much may plaintiffs be allowed to spend for legal services, how much of that must be paid for by the losing side, and how much of the cost of litigation will be covered by the public fisc?'" Johnson, 339 F.3d at 591. The "American Rule" also permits the legislature, as representative of the public, to determine by statute the responsibility for the losing side to reimburse the winner for expenses of litigation. The legislature has acted by authorizing the awarding of costs and fees to the prevailing party in limited circumstances. For example, Wis. Stat. §§ 814.01-814.036 establish when a party may recover costs and fees and Wis. Stat. § 814.04 establishes the costs and fees a party may be awarded. The question becomes whether there is a rational basis to support the legislative determination that a prevailing prisoner is not entitled to costs and fees.

¶ 14, In the case of prisoners who prevail in a common law certiorari action challenging the conditions of confinement, the legislature, in Wis. Stat. § 814.25(2), has concluded the twin goals of the PLRA are best served by denying successful prisoners reimbursement from the public treasury. Under the rational basis test, it is the legislature's duty to develop different classifications, and we review those classifications with the understanding that it is not necessary that this task be completed with perfection. See Aicher, 237 Wis. 2d 99, ¶ 57. The rational basis test does not permit us to become a super legislature, to substitute our judgment for that of the legislature. See id.

¶ 15. We cannot quarrel with the legislature's conclusion that successful prisoner litigators are not entitled to the reimbursement of any costs. The rational basis test obligates us to locate or construct a rationale that might have influenced the legislative development of classifications. Id. We can think of two compelling rationales the legislature could have embraced.

1. In the case of prisoner actions challenging the conditions of confinement, the legislature could validly conclude that the successful prisoner should not be reimbursed from the public treasury because the only person who benefited from the litigation was the prisoner. See Johnson, 339 F.3d at 591 ("Litigation produces benefits (and sometimes costs) for third parties; it is to this extent a public good, and determining how much of a public good to supply (and at whose cost) is an intractable problem.").
2. The legislature could reasonably conclude that a prisoner is not entitled to the reimbursement of costs and fees because the prisoner already receives, from the public treasury, paper and pen to draft legal documents, Kirsch v. Endicott, 201 Wis. 2d 705, 718, 549 N.W.2d 761 (Ct. App. 1996) (if indigent, a prisoner "must be provided at state expense with paper and pen to draft legal documents"), and law libraries, State ex rel. Tyler v. Bett, 2002 WI App 234, ¶ 18, 257 Wis. 2d 606, 652 N.W.2d 800, review denied, 2002 WI 121, 257 Wis. 2d 120, 653 N.W.2d 891 (Wis. Oct. 21, 2002) (No. 01-2808). In addition, a prisoner is given access to adequate assistance from "writ writers" and "jailhouse lawyers," see id., a form of assistance a free person is not provided by the State.

Conclusion

¶ 16. The PLRA represents the Wisconsin legislature's attempt to stem the flood of pestiferous prisoner lawsuits, financed from the public treasury. The PLRA does not restrict a prisoner's access to the courts to challenge the conditions of confinement, it does nothing more than bar the access from being subsidized by the public treasury. The PLRA does not violate Harr's rights to equal protection of the laws because there is more than one rational basis supporting the legislative creation of different classifications to be considered when costs and fees are awarded.

By the Court. — Order affirmed.

       Harr sought costs of $209.18 and "invested hours of legal research and briefing, approximately eight hours at $50.00 per hour" of $400.00. He also sought a stipulation from the State for $500.00 in punitive damages in lieu of filing a 42 U.S.C. § 1983 lawsuit.

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

        State ex rel. Lindell v. Litscher, Case No. 02-CV-1272, Dane County Circuit Court.

       We note that deciding the extent of Harr's First Amendment rights is not crucial to our decision. But to prevent this opinion from being cited for Harr's proposition, we note that prisoners do not have First Amendment rights coextensive with those of free citizens. Prisoners only have those First Amendment rights "that are consistent with prison discipline." Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986). In this case, if Harr had communicated the identical derogatory statements about the corrections officer within the walls of the prison, he would have been subject to disciplinary action without a violation of his First Amendment rights. See Lomax v. Fiedler, 204 Wis. 2d 196, 554 N.W.2d 841 (Ct. App. 1996).


author: WEDEMEYER, PJ.

text:
    In re the Marriage of: Judith C. Dutchin, Petitioner-Respondent-Cross-Appellant, v. Winston L. Dutchin, Respondent-Appellant-Cross-Respondent.
    Court of Appeals

      No. 03-1140.

      Submitted on briefs March 2, 2004.

    Decided April 20, 2004.

    2004 WI App 94
    (Also reported in 681 N.W.2d 295.)

      On behalf of the respondent-appellant-cross-respondent, the cause was submitted on the briefs of Amy L. Shapiro of Perry, Shapiro, Quindel, Saks, Charlton, Sumara & Lerner, S.C., Milwaukee.
    On behalf of the petitioner-respondent-cross-appellant, the cause was submitted on the briefs of Helen M. Ludwig of Poulos, Sengstock & Budny, S.C., West Allis.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   WEDEMEYER, PJ.

¶ 1. Winston L. Dutchin appeals from a judgment of divorce. He also appeals from an order denying his motion for reconsideration. Winston argues that the trial court erred when it failed to include Judith C. Dutchin's survivorship pension benefit as an asset for the purposes of equal property division. Judith cross-appeals from the same judgment challenging the trial court's determination that Winston's pension retirement benefits would be treated as income rather than property. Because the trial court did not erroneously exercise its discretion in addressing the survivorship pension benefit, we affirm the appeal on this issue. Because the trial court did not erroneously exercise its discretion in treating the pension retirement benefits as income instead of an asset subject to property division, we also affirm on the cross-appeal.

BACKGROUND

¶ 2. On May 1, 1971, Judith and Winston married. Following a trial on November 4, 2002, they were granted a judgment of divorce. At the trial, the primary disputed issue was how to divide Winston's pension, which was the most substantial asset of the marriage, valued at approximately $412,000.

¶ 3. At the time of the divorce, Winston's monthly earnings amounted to $3451, which consisted of a monthly pension payment and a monthly social security disability payment. Winston, age sixty, was unable to work due to physical and mental disabilities. Judith, age fifty-four, was still employed as a teacher, earning $2833.34 monthly.

¶ 4. At the divorce trial, Winston insisted that because the pension was in "pay status," the trial court should treat it as an income stream rather than as property to be divided. Judith's position was that the pension should be treated as property to be divided equally between the parties. However, she was not firm in that position and was willing to accept whatever decision the trial court found reasonable.

¶ 5. The trial court found that if the pension was treated as an asset and divided equally, Judith would have a higher monthly income than Winston, which would result in a maintenance award being paid from Judith to Winston. In essence, such a determination would result in a circular and complicated flow of money. Therefore, the trial court found that the most logical and practical approach would be to treat the pension benefit as a stream of income rather than as an asset. In order to equalize incomes, Winston would pay Judith monthly maintenance of $425 until she turned sixty-five.

¶ 6. The next question during the trial involved how to handle the survivorship benefit of Winston's pension, which had an approximate value of $52,000. When Winston elected to start receiving pension benefits, he decided to accept lower monthly payments initially so that Judith would be entitled to a survivor pension benefit. If Winston died before Judith, she would receive 75% of his monthly pension benefit. If Judith predeceased Winston, she would receive nothing. Initially, Winston conceded that because the survivor pension benefit was contingent upon the pension itself, the survivor benefit could not be treated as an asset because the pension itself was not treated as an asset. His attorney stated:

It seems to me that, since it's a product, a derivative product of the pension, primary pension of Mr. Dutchin, as much as I hate to admit it, I think that it is not therefore an asset to be divided between the parties. It is factored out by the fact that it is a compliment [sic] of the income, and from the pension, and factored in as the — as part of the maintenance.

Judith agreed. Her attorney responded:

Judge, if you decide to agree with Mr. Dutchin and not [divide equally the pension] and essentially not count the pension in the property division, I don't believe it would be equitable to count the survivorship as part of the property division either because, again, it's a stream of the income, and you're treating the pension as a stream of income, then survivorship ought to be treated the same way.

Winston's counsel then waffled on his original position:

Just one second, Your Honor. I am cognizant that certainly the survivorship is a separate interest and has a separate value. Based on all of the uncertainties that actuaríais pick the numbers for and plug in their present-day valuations, I guess I would be remiss if I didn't at least suggest to the Court that... all pensions and all partial pensions are assets.
It makes sense — I am thinking outloud, I guess. Does it make sense to take Mr. Dutchin's, if you follow our suggestion and treat it as income as opposed to an asset in the estate, does it make sense to then treat Mrs. Dutchin's survivorship differently? And I guess certainly you could argue that, yes, because it's not going to factor into maintenance until the uncertainty of Mr. Dutchin's death, so until that occurs she's got an asset with a present-day value.

¶ 7. With respect to the treatment of the survivor-ship benefit, the trial court reasoned: .

Now, as to the decision, my own question, thorny question, that is what do I do with Mrs. Dutchin's residual from the pension if I have not treated the pension as an asset for Mr. Dutchin. You know, this is one of those things that the parties could agree on, and if Mr. Dutchin felt so strongly about the injustice of him not getting credit for that survivorship benefit, he could work something else out. Because it is Mr. Dutchin's position about the treatment of the pension that raises the issue, and because it's avoidable, and because Mrs. Dutchin's interests, contingent it may or may not ever be realized by her, and because I am not treating the pension in any way, which is valued at $412,000 on Mr. Dutchin's asset column, I deem it to be a fair unequal division of estate, if you will, to allow Miss [sic] Dutchin to keep that residual interest without further compensation, if you will.
And, in fact, I want to make two findings. I think one is that it's actually, since the pension isn't property, this residual benefit is likewise not property.
Is likewise not property for purposes of property division. Even if it were property for purposes of property division, in that event I think an unequal division, by awarding that to Miss Dutchin, is fair under the circumstances for the reasons that I've stated.

¶ 8. A judgment of divorce was entered. Subsequently, Winston filed a motion for reconsideration on the trial court's finding with respect to the survivorship benefit. He argued that the survivorship benefit should have been treated as an asset, subject to equal property division. The trial court denied the motion. Winston now appeals, and Judith cross-appeals.

DISCUSSION

A. Appeal.

¶ 9. Winston claims the trial court should have considered the survivorship pension benefit as an asset and should have divided the benefit equally. This court rejects Winston's claims.

¶ 10. The trial court's decision on division of property in a divorce case is a discretionary determination. Preiss v. Preiss, 2000 WI App 185, ¶ 10, 238 Wis. 2d 368, 617 N.W.2d 514. We will uphold that exercise of discretion as long as the trial court considered the pertinent facts, applied the correct law, and used a rational process to reach a reasonable determination. See Johnson v. Johnson, 157 Wis. 2d 490, 497, 460 N.W.2d 166 (Ct. App. 1990).

¶ 11. Winston's first complaint is that the trial court erred by refusing to treat the survivorship pension benefit as an asset. The record belies his contention. Although the trial court's comments during trial were not entirely clear on this point, its reconsideration hearing comments clarified that it had treated the survivorship pension benefit as an asset:

Clearly, [the survivorship pension benefit] is an asset. And make no mistake about it, my — the wording that I used when I made the decision, I actually used the word that it's not property, which implies that I didn't think it was an asset, and I hereby reject any such implication. This is an asset that has value. The context that I raised it in at the time of the decision was, is it property for purposes of the property division or is it not property for purposes of property division, and that's really the bottom line question.

¶ 12. Thus, the trial court clearly rejected Winston's argument that it failed to adhere to case law requiring pension benefits to be addressed during property division divorce hearings. See Steinke v. Steinke, 126 Wis. 2d 372, 379-80, 376 N.W.2d 839 (1985), modified, 127 Wis. 2d 444, 379 N.W.2d 853 (1986) (generally, pension plans have been treated as an asset subject to property division); Herdt v. Herdt, 152 Wis. 2d 17, 21-22, 447 N.W.2d 66 (Ct. App. 1989) (although pension plans must be considered as part of the marital estate, the trial court has the discretion to make an unequal property division for good reason).

¶ 13. At the reconsideration hearing, the trial court clearly considered the survivorship pension benefit to be an asset, but determined that it would be unfair to divide this asset equally. The trial court found the unequal distribution to be appropriate based primarily on two statutory factors, Wis. Stat. § 767.255(3)(j) and (m) (2001-02):

I think all of the circumstances in this case warrant a deviation from a mathematical 50/50 division of the estate.
By not debiting [Judith] cash money for this contingent interest, you ask me to cite you the factors. The factors are (j), this is of 767.255(2), other economic circumstances of each party including the pension benefits, which talk about this.
I also make reference to the cases. I can't cite you the name of them, but the courts, both trial and appellate, have struggled mightily with these pensions, and there is plenty of case law that says one of the hardest jobs for a trial court is to figure out how fairly to handle these pension benefits.
And given all the circumstances, I think that the ruling, the order that I made, is fair given the complexity of the pension and the circumstances of the parties.

¶ 14. Under the circumstances of this case, one cannot look at the survivorship pension benefit in isolation. Rather, this issue was, in large part, dependent upon the treatment of the pension itself. Winston was insistent that the $412,000 pension not be treated as an asset for the purpose of property division, but rather, be considered as an income stream for setting maintenance. Judith was mildly opposed to Winston's preference, but willing to accept whatever the trial court found to be reasonable.

¶ 15. The trial court specifically addressed this issue before making its determination. It addressed all of the factors in Wis. Stat. § 767.255(3) and discussed options available for resolution of this matter. It was left with a couple of choices. The first option was to return the $52,000 survivorship pension benefit to the pension value itself and divide the pension equally as an asset. In this way, Winston would receive a monthly pension benefit based on his half of the pension and Judith would receive a monthly pension benefit based on her half of the pension. Electing this option, however, would be complicated and result in Judith earning a substantially greater monthly income than Winston, which, in turn, would require a maintenance order for Judith to pay Winston. The trial court concluded that going this route would result in a "circular flow of funds" and pointed out that appellate courts have granted trial courts discretion to avoid such a result. See, e.g., Herdt, 152 Wis. 2d at 22.

¶ 16. The second option was to treat the $412,000 pension as an income stream, as requested by Winston, and not significantly opposed by Judith. Electing this option would prevent any unnecessary circular flow of money and essentially satisfy the requests and needs of both parties. In choosing this option, however, the trial court found that the survivorship pension benefit should not be divided 50/50 because it was a derivative benefit from the pension itself. In other words, Winston could not have it both ways — if the pension was not going to be divided 50/50, then the survivorship benefit should not be divided 50/50 either. The trial court reasoned that granting Winston's request to treat the pension as income would result in some uncertainty for Judith. First, the survivorship benefit might never inure to Judith, should she predecease Winston. Second, the current maintenance schedule might change in the future, resulting in a reduction of maintenance to Judith. In addition, the trial court found that some costs associated with the survivorship benefit had already been incurred during the marriage. Thus, treating the $412,000 pension as an income stream instead of dividing it as an asset was more favorable to Winston than to Judith.

¶ 17. As a result, the trial court found that the most equitable result would be not to divide Judith's survivorship benefit 50/50. We cannot conclude, based on these circumstances, that the trial court's decision constituted an erroneous exercise of discretion. Trial courts are presented with an infinite range of factual situations in addressing the complicated decision of dividing property and determining maintenance. Cook v. Cook, 208 Wis. 2d 166, 180, 560 N.W.2d 246 (1997). This is particularly true when the case involves pension plans and retirement benefits. As a result, Wisconsin provides our divorce courts with broad discretion in attempting to fashion the most equitable and fair result. " '[T]he ultimate test of a ... [divorce] decree is not how well any one issue has been resolved, but instead whether all the economic components work together to provide adequately for the needs of all members of the now-fragmented family.'" Id. at 183 (citation and footnote omitted). The trial court here entered a decree based not only on the required statutory factors and case law, but also on the requests of the parties to reach a fair and equitable result. Thus, the trial court's decision on this issue is affirmed.

B. Cross-appeal.

¶ 18. In her cross-appeal, Judith contends that the trial court erroneously exercised its discretion when it treated the $412,000 pension as an income stream for maintenance purposes, instead of treating it as an asset subject to 50/50 property division.

¶ 19. The standard of review on this issue is the same as stated above. We will not overturn the trial court's determination unless it erroneously exercised its discretion. Judith argues the trial court relied on an erroneous view of the law when it found that the pension could be treated as income for maintenance purposes instead of an asset for property division. We conclude that the trial court did not erroneously exercise its discretion.

¶ 20. Although the case law in this state clearly states the general rule that retirement plans earned during the marriage through one spouse's employment must be considered in the property division at the time of divorce, see Steinke, 126 Wis. 2d at 379-80, the rule is not inflexible, see Herdt, 152 Wis. 2d at 21-22. Rather, trial courts are afforded the discretion necessary to render equitable and fair results. Here, the trial court clearly considered the pension in determining the property division. It addressed whether "in effect [the court should] go retroactive to Mr. Dutchin's retirement and do a qualified domestic relations order" to divide the pension equally between the parties. The trial court found, however, by doing that, the situation would become much more complicated and result in an unnecessary circular flow of money. The trial court found that the fairest result would be to treat the pension as income and enter a maintenance order for Winston to pay Judith $425 per month until she turns sixty-five.

¶ 21. The trial court clearly set forth its rationale at the divorce trial:

So then we get down to the question of the pension plan and what to do with it. At the heart of the argument is the Steinke case .... And the Steinke case stands for the proposition that a pension must be considered in the property division in a divorce. I've read the case, I think I understand it.
[Winston's counsel] contends, based upon the Cook Decision, 1997, that the bright line rule of the Steinke case, which seems to say that no matter what the status of a pension is, you have to treat it as property. The Cook Case ... softens that to some extent. One thing is clear about the Steinke Case, and it's certainly true in this case, and that is that pensions have to be taken into consideration and thought about very long and hard before deciding what should happen in a divorce case.
Now, I do observe, and I think it's a fact that in this case, because the pension is divisible by the qualified domestic relations order, we could in effect go retroactive to Mr. Dutchin's retirement and do a qualified domestic relations order even today.
In many cases where a person is in pay status in a pension, it is no longer possible to enter a qualified domestic relations order, and in that case, what [Judith's counsel] proposes, is impossible. And I conclude from that... that the logic of your argument fails because you seem to be arguing, based upon Steinke, that I have to do it this way because it's a pension and it must be treated as property. Those pensions, for instance, any City pension, City of Milwaukee pension, not divisible by qualified domestic relations order, I couldn't do it, we would have to treat it some other way. And the fairest way in that case would be to treat it as income. So I reject the conclusion that as a matter of law I must treat it as property.
Then the question is ... what's the fairest way to do this.

¶ 22. The trial court then addressed both scenarios — either dividing the pension as an asset 50/50 or treating it as an income stream. It found that the former would result in a complicated and unnecessary circular flow of money, and that the latter would make more sense by keeping the divorce decree simple. The trial court's decision reflects its conscientious and deliberate process of ascertaining the most equitable resolution under the facts presented in this case. Based on the foregoing, we cannot conclude that the trial court erroneously exercised its discretion in this case.

By the Court. — Judgment and order affirmed.

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


author: PER CURIAM.

text:
    Daniel Contardi and Christine Contardi, Plaintiffs-Appellants-Cross-Respondents, v. American Family Mutual Insurance Company, Defendant-Respondent-Cross-Appellant.
    Court of Appeals

      No. 03-2284.

      Submitted on a motion for reconsideration December 19, 2003.

    Decided April 20, 2004.

    2004 WI App 104
    (Also reported in 680 N.W.2d 828.)

      On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the Motion for Reconsideration of W. Wayne Siesennop of Siesennop & Sullivan, of Milwaukee.
    On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the response to the Motion for Reconsideration of Terry J. Booth, of Piper & Schmidt, of Milwaukee.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review denied 9-1-04.

   PER CURIAM.

¶ 1. Daniel and Christine Con-tardi appeal the circuit court's June 20, 2003 "Decision and Order," which granted American Family Mutual Insurance Company's (American Family's) motion for summary judgment. The appeal was not filed within the time period allowed by law. See Wis. Stat. § 808.04(1) (2001-02). American Family argues that the appeal must therefore be dismissed with prejudice. See Wis. Stat. Rule 809.10(l)(e). The Contardis do not dispute that this court lacks jurisdiction over the appeal. They contend, however, that the June 20 order granting summary judgment was not a final order under Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 326 N.W.2d 240 (1982). They argue that this court's dismissal should be without prejudice, and that when a final judgment order is entered, they may re-file an appeal. We conclude that, under the facts of this case, the order granting summary judgment is a final order. We further conclude this appeal was not timely filed and we dismiss the appeal with prejudice.

FACTS

¶ 2. According to the pleadings, the Contardis experienced water leaks in their home as. a result of ice damming from excessive snowfall on the roof. They filed a claim with their homeowners insurance carrier, American Family. An American Family agent investigated and paid the Contardis $1,166.13 for initial damage from the roof leak. In the process of repairing the water damage, the Contardis discovered mold in the ceiling and throughout the entire house. The Contardis informed American Family of the presence of mold. After several contacts with the Contardis, American Family denied all their subsequent claims to repair the damage.

¶ 3. The Contardis filed a complaint in circuit court. American Family then filed a motion for summary judgment arguing that the policy specifically excludes coverage for mold, and, in the alternative, that the complaint was not timely filed. Although the circuit court concluded that the complaint was timely, the court agreed with American Family regarding the policy exclusion. Based on its interpretation of the policy and applicable case law, the circuit court determined that coverage for mold damage was excluded, regardless of the cause of the mold. The court concluded its June 20, 2003 "Decision and Order" with the following language:

On the basis of the entire record in this case, the Court hereby concludes and orders as follows:
1. That the plaintiffs lawsuit was timely filed;
2. That the American Family policy specifically excluded coverage (1) for mold, and (2) for mold arising from any concurrent or other contributing cause. Consequently, there are no genuine issues of material fact in dispute, and therefore,
3. That the defendant's motion for summary judgment is granted.

American Family argues that this order ended the controversy and was the final order in this case. We agree.

DISCUSSION

¶ 4. Determining whether a judgment or order is final presents an issue of law that we decide de novo. Harding v. Kumar, 2001 WI App 195, ¶ 10, 247 Wis. 2d 219, 633 N.W.2d 700. We must ask two questions. First, does the order dispose of the entire matter in litigation as to one or more of the parties under substantive law? Second, did the circuit court consider the order to be the last document it would enter in the litigation? State v. Wright, 143 Wis. 2d 118, 122-23, 420 N.W.2d 395 (Ct. App 1988); Radoff, 109 Wis. 2d at 494. In Radoff, the supreme court considered the second question and determined that the order granting summary judgment in that case was not a final order — that the circuit court planned to enter a subsequent judgment. However, it does not follow that all circuit court orders that grant summary judgment are nonfinal. See, e.g., Smith v. Wisconsin Phys. Serv., 152 Wis. 2d 25, 27 n.1, 447 N.W.2d 371 (Ct. App. 1989) (order granting motion for summary judgment was determined final because trial court did not indicate that it contemplated a subsequent document). It is necessary to review the language of the order, not the events that occurred after the entry of the order, to determine whether the circuit court contemplated a subsequent entry. Radoff, 109 Wis. 2d at 493 (citing Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655 (1979)).

¶ 5. In Radoff, the supreme court relied on specific language in the order granting the summary judgment to determine that the circuit court in that case intended to enter a subsequent judgment. Radoff, 109 Wis. 2d at 493-94. The order stated that the motions "be and hereby are granted." However, the order did not state that the judgment "be and hereby is entered." Instead, the circuit court order stated that the "judgment be entered." The Radoff court concluded that the circuit court's use of contrasting tenses in the same order indicated that a judgment would follow. Id. In this case, the words of the order do not indicate that another document will be entered — there is no reference to a subsequent judgment.

¶ 6. The Contardis argue that, although the words of the order may not express the circuit court's plan to enter another document, the court's comments during the hearing do. The circuit court's contemporaneous comments may be considered in determining whether the order was intended by the circuit court to be the last document. Wright, 143 Wis. 2d at 123-24. In Wright, the circuit court made comments directly addressing its plan to enter future documents; it expressly stated at the hearing that it would be issuing a second written decision at a later date. Id. at 124. In contrast, the comments that the Contardis point to in this case are ambiguous at best. In the process of discussing future scheduling if the motion for summary judgment were denied, the court stated, "if the defendant prevails, the dismissal will follow." Nothing in these words indicates that "the dismissal" would entail a separate document. In fact, the court continued by saying: "So in the decision you will know what the next step is if any." (Emphasis added.) We conclude that the circuit court's comments in this case do not clearly indicate that the order granting the summary judgment was not intended to be the last document in this litigation.

¶ 7. The Contardis also contend that the circuit court intended to enter a subsequent document to address the Contardis separate bad faith claim. The bad faith claim was bifurcated from what the Contardis term the "merits case," and if the Contardis had prevailed on the merits, the court certainly would have considered the bad faith portion of their complaint. However, because the court concluded that American Family was not liable on the merits, the argument on bad faith could not continue. The circuit court showed that it was aware of this when, in its scheduling order, the court stated that an additional scheduling order would be issued to address the bad faith claim "if necessary." (Emphasis added.)

¶ 8. In a related vein, the Contardis argue that the order granting summary judgment did not dispose of the entire matter in litigation under substantive law — that it did not resolve all of the Contardis' claims. Specifically, they maintain that the circuit court's order did not mention the Contardis' claims of bad faith or estoppel. The circuit court's order did clearly state that "on the basis of the entire record in this case,... [American Family's] motion for summary judgment is granted." Based on the language of American Family's motion, the court dismissed American Family "from all liability for the claims and causes of action alleged by the plaintiffs." For an order to be final, it need not separately discuss each claim raised; it just must dispose of the entire matter in litigation as to one or more of the parties as a matter of substantive law. See Wis. Stat. § 808.03(1). It is clear from the circuit court's order that none of the Contardis claims survived, and therefore, the order is final. See Harding, 247 Wis. 2d 219, ¶ 12.

¶ 9. We conclude that the circuit court's June 20, 2003 "Decision and Order" is a final order because: 1) it disposes of the entire matter in litigation under substantive law, and 2) the circuit court considered it to be the last document it would enter in the litigation. American Family timely filed and served a notice of entry of the order under Wis. Stat. §§ 806.06(5) and 808.04(1). The Contardis filed a notice of appeal on August 12, 2003. The notice of appeal was not timely. The appeal and cross-appeal are therefore dismissed. Wis. Stat. Rule 809.10(l)(e); see also Wis. Stat. Rule 809.82(2) (b).

By the Court. — Appeal and cross-appeal dismissed.

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

       "To show a claim for bad faith, a plaintiff must show the absence of a reasonable basis for denying benefits of the policy and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim." Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 691, 271 N.W.2d 368 (1978). In the present case, the circuit court concluded that a reasonable basis existed — that American Family relied on a valid exclusion to deny the Contardis' claim.