text:
    County of Milwaukee, Plaintiff-Respondent, v. Lawrence C. Williams, Defendant-Appellant. [Case No. 2005AP2686.] County of Milwaukee, Plaintiff-Respondent, v. Russell L. Hegney, Defendant-Appellant. [Case No. 2005AP2687.]
    Court of Appeals

      Nos. 2005AP2686, 2005AP2687.

      Submitted on briefs June 6, 2006.

    Decided June 27, 2006.

    2006 WI App 153
    (Also reported in 720 N.W.2d 177.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Peter C. Carstensen of the University of Wisconsin Law School, of Madison, and Douglas P. Dehler of Shepherd, Finkelman, Miller & Shah, LLC, of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of E. Michael McCann, district attorney, and Thomas J. McAdams, assistant district attorney, of Milwaukee, and William J. Domina and Timothy R. Karaskiewicz of the Milwaukee County Office of Corporation Counsel.
    Before Wedemeyer, PJ., Curley and Kessler, JJ.

       Petition to review granted 10/06/06.

       This case was originally to be decided by one judge, pursuant to Wis. Stat. § 752.31(2)(b) (2003-04). On April 28, 2006, the chief judge issued an order, sua sponte, declaring that this case would be considered by a three-judge panel.

   CURLEY, J.

¶ 1. Lawrence C. Williams and Russell L. Hegney appeal from the judgments entered after they were found guilty of violating Milwaukee County Ordinance 4.05 (Ordinance 4.05), for picking up taxicab passengers at General Mitchell International Airport (GMIA or the airport) without an airport permit, and were each fined $250. Williams and Hegney contend that: (1) Ordinance 4.05 is invalid because Milwaukee County (the County) lacks the authority to enact an ordinance prohibiting certain taxicabs from picking up passengers at GMIA; (2) Ordinance 4.05 is void because it conflicts with Wisconsin Statutes, specifically Wrs. Stat. §§ 349.24(1) and 194.02 (2003-04); and (3) the Ordinance violates the spirit of the antitrust law set forth in Wxs. Stat. § 133.01.

¶ 2. This court concludes that Wis. Stat. § 114.14 gives Milwaukee County the authority to regulate taxicab operations at the airport, that no other Wisconsin statute conflicts with that authority, and that the state antitrust statute does not apply to the County in this instance because specific statutory authority was given to the County to operate the airport. Therefore, Ordinance 4.05 is valid. Consequently, the judgments of conviction are affirmed.

I. Background.

¶ 3. Until the late 1980s, taxicab transportation at the GMIA was unregulated. Taxicab transportation operated under an "open" system under which any taxicab driver who wished to seek a fare at GMIA was allowed to do so. Because GMIA did not have the room for an organized waiting area for taxicabs, and because the staging area in front of the terminal at GMIA can accommodate only four taxicabs at a time, the open system led to a number of problems. The problems included congestion in front of the terminal, fights between drivers, hazardous conditions for passengers arriving on foot, instances when taxicab drivers who sometimes waited hours for a fare subsequently refused short-distance fares, and instances when passengers endured long waits because no taxicabs were available.

¶ 4. In response to these problems, in 1990 Milwaukee County enacted Ordinance 4.05. Ordinance 4.05 regulates commercial ground transportation at GMIA, and permits only taxicab drivers who have a license issued by a city, town or village, in accordance with Wis. Stat. § 349.24, and an additional permit from the airport, to pick up passengers at GMIA. Milw. County Ord. 4.05(3)(b)(l). The ordinance also limits the number of permits issued by the County to fifty. Milw. County Ord. 4.05(3)(b)(3)(a). While the ordinance prohibits taxicabs without permits from picking passengers up, it does not prohibit other taxicabs from dropping passengers off at GMIA. Milw. County Ord. 4.05(3)(b)(5). The ordinance does not apply to limousines. Milw. County Ord. 4.05(6). At issue in this appeal is the validity of Ordinance 4.05.

¶ 5. The facts leading up to this appeal are undisputed. Williams and Hegney are taxicab drivers who are licensed in the City of Fond du Lac. The two men are employed by Quality Cab Co., a licensed taxicab company that operates out of Fond du Lac and has contracts with several local businesses to transport employees and business associates to and from GMIA. On separate occasions, in January of 2005, Hegney and Williams arrived at GMIA in response to requests by customers for transportation from GMIA to Fond du Lac. Neither driver had a permit giving them permission to pick up passengers at GMIA. While attempting to pick up their passengers, both drivers were issued citations for violating Ordinance 4.05(3)(b)(5).

¶ 6. Williams and Hegney do not dispute that they lacked the permits required under Ordinance 4.05 when they picked up customers. They contested their citations on the grounds that Ordinance 4.05 is invalid, and as a result, they moved to dismiss the citations. They argued that the County did not have the authority to enact an ordinance that prohibits certain taxicabs from picking up passengers at GMIA, and that even if the County did have such authority, the ordinance conflicts with Wis. Stat. §§ 349.24 and 194.02 and is, consequently, void. Further, they claim the ordinance violates the antitrust law embodied in Wis. Stat. § 133.01. The trial court denied the motion, and in a written decision concluded:

Wis. Stats. Sec. 114.14(1) provides that a County which has established an airport may maintain and operate the airport. The issue with regard to taxicab regulation at the airport appears to be well settled law as far back as 1951. In Milwaukee County v. Town of Lake, 259 Wis. 208, (1951), the Wisconsin Supreme Court recognized the exclusive right of the County of Milwaukee to manage the airport and particularly to regulate ground transportation to be furnished airline passengers arriving and departing on its property. Similar issues of illegality and monopoly were presented and the Supreme Court validated the County's actions. The County can regulate taxicabs at GMIA.
Additionally, Wis. Stats. Chapter 194 is inapplicable on this issue. It applies to regulation of common motor carriers and specifically excludes taxicabs by definition in 194.01(1). The definition of municipality under Wis. Stats. Sec. 194.02 is then not relevant. The county ordinance is not in conflict with that Chapter.
Further, []Wis. Stats. Section 349.24(2) is inapplicable on this issue. It is superseded by the more specific statute sec. 114.14(1) regarding airport operations.
Neither is there any indication how the County is violating public interest goals of airport operation to be contrary to Wis. Stats. Chapter 133.

¶ 7. In lieu of a trial, the parties thereafter stipulated to the facts at issue, and Williams and Hegney were ordered to pay fines of $250. Williams and Hegney now appeal.

II. Analysis.

A. Statutes and subsequent case law authorize the County to regulate taxicabs at the airport.

¶ 8. Williams and Hegney first contend that the trial court erred in its decision finding statutory authority for Ordinance 4.05 because there is no statutory authority for the County to regulate taxicab service at the airport.

¶ 9. Ordinance 4.05 provides, in pertinent part:

(1) Purpose. The purpose and intent of this section is to regulate all commercial ground transportation including prereserved (reservation) service, by the issuance of permit(s) to both those owning or operating a commercial ground transportation service and those driving commercial ground transportation vehicles at General Mitchell International Airport. Prereserved (reservation) service means ground transportation that is contracted for prior to the actual time passengers are picked up.
(3) Taxicabs.
(a) Definition. "Taxicab" under this section is a motor vehicle regularly engaged in the business of carrying passengers for hire, with heating and air conditioning, be in good operating condition, metered, and not operated on an affixed route.
(b) License, permits, fees.
(1) An owner or operator of a taxicab shall not do business or attempt to do business on General Mitchell International Airport unless such owner or operator has been licensed as owner or operator of a taxicab business by any city, village or town consistent with Wis. Stats. § 349.24, and unless such license remains in full force and effect.
(3)(a) On and after September 1, 1990, taxicab owner permits will be issued only to those owners whose vehicle(s) have been permitted during the period October 1, 1989, through July 5, 1990. Taxicab owner permits must be renewed and remain in full force and effect on a continuous basis, in accordance with subparagraph (b) below. In the event an owner does not renew the taxicab owner permit prior to the annual dates prescribed herein below, that owner shall forfeit his/her privilege to operate at the airport. At such time that the total number of taxicab permits issued decreases below fifty (50), additional permits, to maintain the total issued at fifty (50), will be issued to those taxicab owners who are on the waiting list. Permits will be issued based upon date of request on the waiting list. In the event of extraordinary circumstances, i.e. large conventions, inclement weather or inability of the permitted taxicab fleet to meet immediate passenger demand, the airport director or his/her designated representative is authorized to request temporary taxicab service from local providers in order to meet such extraordinary demand. Additional taxicabs will follow all policies, rules and regulations pertaining to the operation of taxicabs at General Mitchell International Airport.
(5) Any person who is not in possession of the necessary permits required under this section and who operates a taxicab at General Mitchell International Airport in such a manner as to constitute doing business, or who attempts to do business thereon shall, without limitation because of enumeration, be deemed to be in violation of chapter 4 of the Code. A taxicab driver entering upon General Mitchell International Airport for the sole purpose of discharging a taxicab patron at said airport shall not be deemed to be doing business thereon if, after discharging said passenger, he/she shall immediately leave the airport premises.

¶ 10. We observe that "[a]ll acts of legislative bodies are presumed to be constitutional unless established otherwise by a competent tribunal. The party attacking an ordinance has the burden of overcoming the presumption of constitutionality and showing that the ordinance is unconstitutional." Courtesy Cab Co. v. Johnson, 10 Wis. 2d 426, 431-32, 103 N.W. 2d 17 (1960).

¶ 11. We first look to Chapter 114, entitled "Aeronautics," to see if the legislature has passed laws affecting the County's authority over the airport. Contained in Chapter 114 is Wis. Stat. § 114.14(1), which authorizes the county to adopt regulations with regard to the operation and use of the airport.

¶ 12. Williams and Hegney point out that the word "taxicab" is nowhere to be found in Wis. Stat. § 114.14, and that the statute gives the County the authority to only "operate" the airport. We disagree. As later case law clearly establishes, the operation of an airport includes regulating taxicabs that are picking up passengers.

¶ 13. Challenges to Milwaukee County's operation of the airport and its regulation of taxicabs go back as far as 1951, when, in Milwaukee County v. Town of Lake, 259 Wis. 208, 48 N.W.2d 1 (1951), the Town of Lake claimed that: "the county of Milwaukee, the owner of the airport, has exceeded its authority in the exercise of its controlling power with relation to ground transportation within the airport." Id. at 225. In ruling against the Town of Lake, the supreme court observed that Chapter 114 of the Wisconsin Statutes authorizes a municipality to own and operate an airport and permits the municipality's governing body to "provide for the enforcement of regulations duly adopted by the municipality." Id. at 224. Further, the court affirmed the trial court's judgment that "the county of Milwaukee 'as the owner of [the airport] has the exclusive right to manage said field, including the right to regulate the ground transportation to be furnished to airline passengers arriving at and departing from [the airport].'" Id. at 232 (quoting trial court decision). In so ruling, the court affirmed that the airport, not the Town of Lake, was the proper authority to determine which taxicabs picked up passengers at the airport.

¶ 14. Several years later, another airport taxicab dispute reached the supreme court. In Courtesy Cab, the issue dealt with whether taxicab drivers from municipalities outside the city of Milwaukee could pick up passengers at the airport and deliver them to places within the City of Milwaukee without a City of Milwaukee permit. Id., 10 Wis. 2d at 429-30. Although not directly on point, the case discussed the powers of Milwaukee County in regulating the airport:

Milwaukee county is a municipality for airport purposes by virtue of ch. 114, Stats. As such, it has the power to pass ordinances and promulgate rules and regulations necessary for the proper exercise of the governmental functions in connection with General Mitchell Field as set forth in the statutes.

Id. at 434.

The General Mitchell Field, also known as Milwaukee County Airport, is a municipality created under ch. 114, Stats., and the record failing to disclose the adoption by it of any ordinance licensing cabs, chauffeurs, or cab drivers, we hold that the plaintiffs' cabs are being operated wholly within the limits of the city of Milwaukee as defined in sec. 349.24(2), Stats., and the ordinances adopted by the city of Milwaukee pursuant to said sec. 349.24(1) and (2) are valid.

Id. at 436. The holding validated the County's authority to regulate taxicabs and went so far as to remark that the County could license taxicabs. Thus, these cases support the County's view that Wis. Stat. § 114.14(1) gives the County the authority to regulate ground transportation, including taxicabs, at the airport.

¶ 15. The combination of the statutory authority, coupled with the two cases affirming the County's authority to regulate ground transportation, convince us that while the word "taxicab" is not found in Wis. Stat. § 114.14(1), the County has the clear authority to pass an ordinance requiring taxicabs to obtain permits to pick up passengers at the airport.

B. No statutes conflict with the ordinance.

¶ 16. Williams and Hegney next claim that Ordinance 4.05 conflicts with existing statutes and is thus void. Citing DeRosso Landfill Co., Inc. v. City of Oak Creek, 200 Wis. 2d 642, 547 N.W.2d 770 (1996), Williams and Hegney claim that Ordinance 4.05 conflicts with Wis. Stat. §§ 349.24 and 194.02.

¶ 17. In DeRosso, the supreme court reiterated the long-standing rule that a municipality cannot pass laws which conflict with state statutes: "where 'the state has entered the field of regulation, municipalities may not make regulation inconsistent therewith' because " 'a municipality cannot lawfully forbid what the legislature has expressly licensed, authorized or required, or authorize what the legislature has expressly forbidden.'" 200 Wis. 2d at 651 (quoting Fox v. Racine, 225 Wis. 542, 546, 275 N.W. 513 (1937) (citation omitted). DeRosso explains:

Summarizing the court's preemption analysis, the Anchor [Savings & Loan Ass'n v. Madison EOC, 120 Wis. 2d 391, 355 N.W.2d 234 (1984)] court outlined four tests to determine when a state statute invalidates a local ordinance. A municipal ordinance is preempted if (1) the legislature has expressly withdrawn the power of municipalities to act; (2) it logically conflicts with state legislation; (3) it defeats the purpose of state legislation; or (4) it violates the spirit of state legislation. Should any of these tests be met, the municipal ordinance is void.

DeRosso, 200 Wis. 2d 642 at 651-52 (footnotes omitted).

¶ 18. "The question of whether a statute preempts a municipal ordinance raises a question of law which we review independently, benefiting from the analyses of the circuit court and the court of appeals." Id. at 652.

¶ 19. We first tackle the question as to whether Wis. Stat. § 349.24 conflicts with the County ordinance.

¶ 20. Wisconsin Stat. § 349.24 authorizes a city, village or town board to license taxicabs. It reads:

Authority to license taxicab operators and taxicabs. (1) The council of any city and every village or town board may:
(a) Regulate and license chauffeurs and operators of taxicabs used for hire;
(b) Regulate and license the taxicab business by licensing each taxicab used for hire;
(c) Prohibit any person from operating any motor vehicle for taxicab purposes upon the highways of the city, village or town unless the person is licensed as a chauffeur and operator and unless the taxicab business is licensed by the licensing of each taxicab;
(d) Revoke any license mentioned in this section when in its judgment the public safety so requires.
(2) Any person licensed by any city, village or town as a chauffeur and operator shall not be required to procure either a chauffeur's and operator's license or a taxicab license in any other municipality for the purpose of carrying taxicab passengers for hire from one municipality to another, but this exception does not permit the chauffeur or operator to operate a taxicab wholly within the limits of any municipality in which the chauffeur or operator is not licensed.
(3) Any person licensed under this section is required to comply with the licensing requirements of ch. 343.

Williams and Hegney argue that because they have been properly licensed by the City of Fond du Lac, and the statute expressly prohibits a city, village or town from requiring a taxicab licensed elsewhere to obtain a license in that community in order to carry taxicab passengers from one location to another, the County ordinance conflicts with the statute and consequently is void. We disagree.

¶ 21. As noted, Wis. Stat. § 349.24 addresses the licensing authority of a "city, village or town." It contains no references to a "county," and makes no mention of an "airport." Consequently, it is inapplicable to the County. Also, this statute's purpose is to free a taxicab owner from having to obtain a license in every city, village or town that a taxicab may pass through in transporting a customer to his or her destination. The purpose behind the requirement of an airport permit is not the same as the purpose of § 349.24. The airport permits are required for the safety of the traveling public and to alleviate congestion at the airport. The uniqueness of an airport setting is acknowledged by the legislature's passage of Chapter 114. Chapter 114, as interpreted in two supreme court cases, Town of Lake and Courtesy Cab, gives authority to the county to regulate the ground transportation of passengers, including taxicabs. Section 349.24 is not in conflict with the ordinance.

¶ 22. Moreover, even if Wis. Stat. § 349.24 applied to county airport permits, the specific statute found in Wis. Stat. § 114.14, authorizing the operation of an airport, trumps the general taxicab licensing statute of § 349.24. "When two statutes relate to the same subject matter, the specific statute controls over the general statute." Wieting Funeral Home of Chilton, Inc., v. Meridian Mut. Ins. Co., 2004 WI App 218, ¶ 15, 277 Wis. 2d 274, 690 N.W.2d 442.

¶ 23. With regard to Wis. Stat. § 194.02, Williams and Hegney claim that the purpose of the statute also conflicts with the ordinance, rendering the ordinance void. Section 194.02 reads:

It is the intent of the legislature to remove the economic regulations which limit motor carrier operations in the state. The legislature intends to let the market promote competitive and efficient transportation services, while maintaining the safety regulations necessary to protect the welfare of the traveling and shipping public. It is the intent of the legislature that this chapter be interpreted in a manner which gives the most liberal construction to achieve the aim of a safe, competitive transportation industry.

They submit that in passing this law, the legislature established a policy to promote open and free trade in the transportation industry, and the airport permit limitations run counter to this policy. The answer to the question of whether any conflict exists between Wis. Stat. § 194.02 and Ordinance 4.05 is a simple one. The answer can be found in the definitions section found in Wis. Stat. § 194.01, where taxicabs are specifically exempted from coverage. In defining a "common motor carrier," the statute reads: "The transportation of passengers in taxicab service . . . with a passenger-carrying capacity of less than 16 persons . . . shall not be construed as being that of a common motor vehicle." Thus, this statute cannot possibly conflict with the ordinance because taxicabs are specifically exempted from the policies and regulations imposed by the chapter. Again, even if taxicabs were not exempt, the intent of the legislature to "promote competitive and efficient transportation services" does not necessarily lead to the conclusion that requiring airport permits for taxicabs picking up passengers conflicts with this policy consideration, because regulating the number of taxicabs entering the airport could very well "promote competitive and efficient transportation services." See § 194.02.

C. The County is not subject to the antitrust law.

¶ 24. Williams and Hegney's final argument is that the County violated the antitrust law embodied in Wis. Stat. § 133.01. This statute states the legislative intent behind the passage of Chapter 133 dealing with trusts and monopolies. It reads:

The intent of this chapter is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition by prohibiting unfair and discriminatory business practices which destroy or hamper competition. It is the intent of the legislature that this chapter be interpreted in a manner which gives the most liberal construction to achieve the aim of competition. It is the intent of the legislature to make competition the fundamental economic policy of this state and, to that end, state regulatory agencies shall regard the public interest as requiring the preservation and promotion of the maximum level of corn-petition in any regulated industry consistent with the other public interest goals established by the legislature.

Id. The drivers contend that the airport's regulation of taxicabs and the County's fifty-permit limit violate the legislative intent of the chapter "to make competition the fundamental economic policy of this state." They point to two Wisconsin cases, as well as foreign case law, for support. The first case cited is American Medical Transport of Wisconsin, Inc. v. Curtis-Universal, Inc., 154 Wis. 2d 135, 452 N.W.2d 575 (1990), where our supreme court struck down the City of Milwaukee's attempt at regulating ambulances throughout the city. The second case is Cedarhurst Air Charter, Inc. v. Waukesha County, 110 F. Supp. 2d 891 (E.D. Wis. 2000), where a federal judge struck down, on federal antitrust law grounds, Waukesha airport authority's attempt to require fuel services to be purchased from only one vendor.

¶ 25. Finally, they contend that even if "traffic or other considerations warranted some regulation of competition at GMIA, it must be done in the least restrictive manner to achieve the legislatively defined goals." They claim the current ordinance falls short of this goal. We remain unpersuaded by both arguments.

¶ 26. First, Wis. Stat. § 133.01 does not prohibit all regulation of competition, rather, its intent is to prohibit "unfair and discriminatory business practices." The statute also acknowledges that the stated policy determination that "competition should drive the economics of our state" is modified by the language "consistent with the other public interest goals established by the legislature." One of those other legislative public interest goals is the regulation of the airport. Thus, the legislature's passage of statutes giving the County the power to operate and regulate the airport falls within the "other public interest goals" mentioned in § 113.02. Consequently, even if the County qualifies as a "state regulatory agency" referenced in § 113.02, the legislature has given to it the authority to regulate the airport, including its ground transportation system, and implicit in handing this authority to the County is that policy considerations for operating an airport may conflict with the general policies expressed in Chapter 113.

¶ 27. Further, this conclusion is supported by Wisconsin case law. In Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982), and Town of Neenah Sanitary District No. 2 v. City of Neenah, 2002 WI App 155, 256 Wis. 2d 296, 647 N.W.2d 913, challenges based on antitrust grounds were raised to the municipality's attempt to regulate sewerage. In Town of Hallie, our supreme court determined that the appropriate test to be applied when a municipality is charged with violating the state antitrust statute is "whether the legislature intended to allow municipalities to undertake such actions." 105 Wis. 2d at 539. "Such a determination involves an analysis of the home rule powers of cities, the type of conduct undertaken by a city in a particular instance, and the general statutory framework set up by the legislature in the particular field." Id. In applying the test here, it is clear that the legislature, by passing Chapter 114, gave to the County a broad mandate to operate the airport. Also, as noted, several supreme court cases have agreed that this authority includes the County's regulation of taxicabs. For these reasons, the County is not in violation of the state antitrust statute for having passed Ordinance 4.05 because the legislature intended the County to "undertake such actions" with respect to the airport.

¶ 28. We also do not find the cases cited by Williams and Hegney to be applicable to this dispute. In American Medical Transport, the city was not relying on any statutory authorization for its claimed ability to regulate ambulances, but rather, its home rule powers. 154 Wis. 2d at 146-47. Here, statutory authority exists for the County's actions.

¶ 29. Nor are we persuaded that Cedarhurst Air Charter is dispositive. Cedarhurst Air Charter dealt with airport regulations, but there the federal court said that requiring airplane' fuel to be purchased from only one provider falls outside Chapter 114 and violated federal antitrust law. 110 F. Supp. 2d at 893-95. Unlike Cedarhurst Air Charter, as discussed earlier, two cases, Town of Hallie and Courtesy Cab, have emerged from our supreme court that have determined that taxicab regulation clearly falls within the superintending power of the County under Chapter 114.

¶ 30. Finally, we disagree with Williams and Hegney’s alternative argument that even if some authority existed for the County's ordinance, it is unduly restrictive. As we have already concluded, the County is permitted to skirt the state antitrust statute because it falls within the test set forth in the Town of Hallie, having been given specific legislative mandate to operate the airport, and thus, the County is not compelled to pass ordinances that are the least restrictive.

¶ 31. In sum, we conclude that the County was given authority by the legislature to regulate taxicabs, Ordinance 4.05 does not conflict with any other statutes, and the County is not subject to the state antitrust statute in its operation of airport taxicabs. Consequently, we affirm the trial court's decision.

By the Court. — Judgments affirmed.

       On January 9, 2006, this court granted Williams and Hegney's motion to consolidate their cases, Nos. 2005AP2686 and 2005AP2687, for appeal.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       WISCONSIN Stat. § 114.14(1) provides:
      Equipment, control of airport; expense; regulations.
      (1) The governing body of a city, village, town or county which has established an airport or landing field, or landing and take-off strip, and acquired, leased or set apart real property for such purpose may construct, improve, equip, maintain and operate the same, or may vest jurisdiction for the construction, improvement, equipment, maintenance and operation thereof in any suitable officer, board or body of such city, village, town or county. The expenses of such construction, improvement, equipment, maintenance and operation shall be a city, village, town or county charge as the case may be. The governing body of a city, village, town or county may adopt regulations, and establish fees or charges for the use of such airport or landing field, or may authorize an officer, board or body of such village, city, town or county having jurisdiction to adopt such regulations and establish such fees or charges, subject however to the approval of such governing body before they shall take effect.
      (Emphasis added.)

       In addition, charges of conspiracy were also brought against the city, whereas here, the airport permits are held by seventeen different cab companies, belying any concerns about conspiracies or monopolies.

       We also conclude that the foreign case law cited by Williams and Hegney does not override Wisconsin precedent.


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Javier Bedolla, Defendant-Appellant.
    Court of Appeals

      No. 2005AP2717-CR.

      Submitted on briefs May 15, 2006.

      Decided June 27, 2006.

    2006 WI App 154
    (Also reported in 720 N.W.2d 158.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Susan E. Alesia, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of William C. Wolford, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 9/11/06.

   CANE, C.J.

¶ 1. Javier Bedolla contends that because he was never advised of the risk of deportation at the time of entering his no contest plea to second-degree sexual assault of a child, the trial court erred by denying the motion to withdraw his plea. The circuit court held that since there was an immigration detainer placed on him in another case prior to his plea, the failure to give the deportation warning had no impact on his immigration status. Because Bedolla has shown that his plea to the sexual assault in this case is likely to result in his being deported, we reverse the order and remand the matter to the circuit court for further proceedings.

¶ 2. The underlying facts are undisputed. When Bedolla entered his no contest plea to second-degree sexual assault of a child, the court failed to personally advise him under Wis. Stat. § 971.08(l)(c) that his plea may result in deportation. Bedolla is a non-citizen and the State concedes this warning was required and not given. A few months after the trial court sentenced Bedolla to five years' initial incarceration and ten years' extended supervision, Bedolla filed a motion to withdraw his plea, based on the court's failure to advise him of the risk of deportation as required by statute.

¶ 3. At the motion hearing, Bedolla introduced evidence that the Immigration and Naturalization Service placed an immigration detainer against him with the Department of Corrections. While acknowledging error in failing to advise Bedolla that his plea may result in deportation, the court observed that the immigration detainer had been entered against Bedolla two months prior to the plea, in a case involving false imprisonment. The court denied the motion, concluding the plea in this case did not affect Bedolla's immigration status because he was already facing deportation as the result of the false imprisonment case.

¶ 4. Both sides agree the issue involves application of a statute to undisputed facts. The proper construction of a statute presents a question of law, which we review de novo. The Landings LLC v. City of Waupaca, 2005 WI App 181, ¶ 5, 287 Wis. 2d 120, 703 N.W.2d 689.

¶ 5. Both statutory and case law have set forth clear rules for analyzing this type of plea withdrawal issue. The defendant must be permitted to withdraw the plea and have the conviction vacated if three conditions are met: "(1) the defendant makes a motion; (2) the circuit court has failed to advise the defendant under Wis. Stat. § 971.08(l)(c) regarding the deportation consequences of a no-contest plea; and (3) the defendant shows that the plea is likely to result in his being deported." State v. Douangmala, 2002 WI 62, ¶ 23, 253 Wis. 2d 173, 646 N.W.2d 1; Wis. Stat. § 971.08(2).

¶ 6. Here, the central issue surrounds the third condition: whether Bedolla demonstrated that the plea in this case is likely to result in his deportation. Bedolla contends that he need prove only that he is a non-citizen and that he pled to a deportahle offense. He argues the trial court's reasoning is akin to a harmless error analysis, an analysis that was firmly rejected in Douangmala. There the court denied the State's argument to apply the harmless-error principle to a defendant who was aware of his plea's deportation consequences, but was not given the deportation warnings.

¶ 7. The State contends, however, this is not a case of harmless error as addressed in Douangmala because Bedolla has not shown he is likely to be deported as a result of this plea and, therefore, he has not satisfied the third condition of Wis. Stat. § 971.08(l)(c). It notes the detainer indicates that an investigation had been initiated earlier to determine whether Bedolla is subject to removal from the United States as a result of the false imprisonment conviction. It reasons that because the Immigration and Naturalization Service had already begun investigating Bedolla with proper grounds for deportation before he pled no contest to the sexual assault charge in this case, Bedolla has failed to show that his plea to the sexual assault charge "is likely to result in the defendant's deportation." Rather, the State contends his deportation is likely to result from his earlier conviction. The State also cites cases from other jurisdictions where the courts denied a defendant's plea withdrawal motion in similar circumstances because no prejudice was shown for a trial court's failure to give similar statutory-deportation warning to a non-citizen at the time of entering a plea.

¶ 8. Here, Bedolla, a non-citizen, pled no contest to a crime that is indisputably a deportable offense. Whether he will be deported based on the earlier offense or other offenses, or a combination of the other offenses and the present offense, would amount to no more than conjecture or guesswork at this stage of the proceedings. The court's analysis must be narrowly tailored to the facts in the case at hand and not be expanded to an examination of the defendant's criminal history. The courts should not be required to speculate on how the Immigration and Naturalization Service might act with respect to other unrelated cases.

¶ 9. We also agree with Bedolla that the State's argument is effectively a harmless error argument. Whether one would describe the failure to advise Bedolla of the deportation warnings as "harmless error" or "no prejudice," the concept is the same and rejected in Douangmala. See id., ¶¶ 36-42. The supreme court in Douangmala saw no difference, nor do we.

¶ 10. What is relevant is that Bedolla, a non-citizen, has entered a no contest plea to a deportable offense, the required statutory warnings were not given, and the federal government has filed a detainer against him for his possible deportation. The detainer filed against Bedolla simply states, "Investigation has been initiated to determine whether this person is subject to removal from the United States."

¶ 11. Wisconsin Stat. § 971.08(2) uses the term "likely" and not "shall," meaning a defendant need not prove he definitely will be deported on this case. Even though the earlier conviction sparked the investigation and immigration detainer, this additional sexual assault conviction obviously will now be included as part of the Immigration and Naturalization Service's information when determining whether to deport him. Because the sexual assault offense will be considered as a basis, in full or part, for his possible deportation, Bedolla has shown his plea to this offense is likely to result in his deportation. Consequently, Bedolla must be permitted to withdraw his plea.

By the Court. — Order reversed and cause remanded for further proceedings.

       Wisconsin Stat. § 971.08 states in relevant part:
      (1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
      (c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
      (2) If a court fails to advise a defendant as required by sub. (1) (c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Although Bedolla and the State restrict their argument to the trial court's failure to advise Bedolla of the deportation consequences of his plea, we note that the required warnings also require the court to advise a non-citizen defendant of the possible consequence of exclusion from admission to this country or the denial of naturalization. See Wis. Stat. § 971.08(l)(c).

        See 8 U.S.C. § 1101(a)(43) (2005).

       Bedolla states that false imprisonment is not specifically identified as an "aggravated felony" for purposes of deportation. 8 U.S.C. § 1101(a)(43) (2005). However, the State suggests Bedolla’s latest conviction for false imprisonment started the investigation for his deportation, as his prior convictions for manufacture or delivery of methamphetamine constitute drug trafficking, which would make it an aggravated felony.


author: HOOVER, PJ.

text:
    Toumkham Rabideau, Plaintiff-Respondent, Royal & Sunalliance, Involuntary-Plaintiff, v. Milan W. Stiller and American Family Mutual Insurance Company, Defendants-Appellants.
    Court of Appeals

      No. 2005AP2868-FT.

      Submitted on briefs April 12, 2006.

      Decided June 27, 2006.

    2006 WI App 155
    (Also reported in 720 N.W.2d 108.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Kenneth R. Baumgart of Everson, Whitney, Everson & Brehm, S.C., Green Bay.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher R. Hinkfuss of Hinkfuss, Sickel, Petitjean & Wieting, Green Bay.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Milan Stiller and his insurer, American Family Mutual Insurance Company, appeal a non-final order denying a motion to dismiss. Stiller asserts the circuit court lacks jurisdiction because Toumkham Rabideau's complaint was filed without a signature. We conclude any defect was promptly cured and, accordingly, we affirm the order.

Background

¶ 2. On May 30, 2002, Rabideau and Stiller were involved in a traffic accident, the circumstances of which are irrelevant to this appeal. On March 25, 2005, Rabideau filed a summons and complaint against Stiller. This filing was within the three-year statute of limitations. Rabideau concedes her complaint was unsigned, but it was indisputably stapled to a properly signed summons.

¶ 3. Stiller filed his answer on May 9, 2005. It included several affirmative defenses. Paragraph fifteen alleged, in its entirety, "Plaintiffs pleadings are defective and properly dismissed."

¶ 4. On May 11, Rabideau sent interrogatories to Stiller. Stiller responded on June 6. Only one of the questions is relevant to this appeal:

INTERROGATORY NO. 8: For each such affirmative defense in your answer to the complaint, please state the following information in regard to each such defense:
(a) Each and every fact you contend forms the basis for the defense; and
(b) The name and address of each witness who has knowledge of every fact you contend supports the basis for the defense.
ANSWER: Objection, this Interrogatory is premature .... Additionally, affirmative defenses alleged were done to preclude waiver. Notwithstanding... [t]he Summons and Complaint filed with the circuit court as well as the Complaint served upon Mr. Stiller and American Family were not signed by plaintiffs counsel and, pursuant to statute, are defective.

¶ 5. On July 15, 2005, Stiller filed a motion to dismiss because the complaint was unsigned. The same day, Rabideau filed an amended summons and complaint, identical to the first except that both were now signed and the complaint added two paragraphs asserting the initial omission was unintentional and that counsel had reviewed the allegations prior to commencing suit. Ultimately, the circuit court concluded counsel's failure to sign Rabideau's first complaint was a technical error that was promptly cured and denied the motion.

Discussion

¶ 6. The motion to dismiss was treated as a motion for summary judgment, and we review summary judgments de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). The methodology is well-established and we will not repeat it here. See, e.g., Lambrecht v. Estate of Kazmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

¶ 7. Stiller asserts that the failure to sign the complaint in accordance with the subscription requirements of Wis. Stat. § 802.05 constitutes a fundamental defect in the pleadings that deprives the trial court of jurisdiction. To establish whether a pleading is fatally defective, we apply a two-part test. See Schaefer v. Riegelman, 2002 WI 18, ¶ 14, 250 Wis. 2d 494, 639 N.W.2d 715.

¶ 8. First, we must ascertain whether there is in fact a defect in the pleadings. Id. Whether the subscription requirements have been met is a question of statutory interpretation we review de novo. Id., ¶ 15. The party alleged to have filed the defective pleadings has the burden of showing there is no defect. Id.

¶ 9. Second, if there is a defect, we must determine whether it is a fundamental defect or a technical defect. Id., ¶ 14. Where a defect is technical, the court has personal jurisdiction only if the complainant can show the defendant was not prejudiced. American Fam. Mut. Ins. Co. v. Royal Ins. Co. of Am., 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992). Where a defect is fundamental, no personal jurisdiction attaches regardless of prejudice. Id. Whether a defect is technical or fundamental is a question of law we review de novo. Schaefer, 250 Wis. 2d 494, ¶ 25.

¶ 10. It is undisputed that the initial complaint lacked a signature. It thus contained a defect because it failed to comport with the portion of Wis. Stat. § 802.05(l)(a) requiring: "Every pleading, motion or other paper of a party represented by an attorney shall... be subscribed with the handwritten signatures of at least one attorney of record in the individual's name." Having established the pleadings were defective, the next step is to determine whether the defect is technical or fundamental.

¶ 11. In Gaddis v. La Crosse Prods., Inc., 198 Wis. 2d 396, 542 N.W.2d 454 (1996), the summons was unsigned but was attached to a signed complaint. The supreme court noted that under Wis. Stat. § 802.05(l)(a), a party's signature constitutes certification the party is satisfied there are grounds for the action. See Gaddis, 198 Wis. 2d at 405. That is, the subscription requirement places a professional obligation on an attorney to certify the claim is not frivolous. The court noted that the signed complaint suggested fulfillment of this obligation and relied on this observation in part to conclude the unsigned summons was merely a technical defect. See id.

¶ 12. In State v. Seay, 2002 WI App 37, ¶ 8, 250 Wis. 2d 761, 641 N.W.2d 437, two notices of appeal were unsigned. Notices of appeal are also subject to the subscription requirement. Without holding whether the defects were technical or fundamental, we noted that the missing signatures did not deprive us of appellate jurisdiction if corrected when called to the party's attention. We noted that the express language of Wis. Stat. § 802.05, as we will detail below, "suggests that a failure to sign a notice of appeal can be corrected and failure to sign does not compel the immediate dismissal of the appeal." Seay, 250 Wis. 2d 761, ¶ 5.

¶ 13. In Schaefer, both the summons and complaint were improperly subscribed. They had been signed by an attorney not licensed to practice law in Wisconsin. The supreme court expressed concern about the same professional obligation the Gaddis court had referenced and, after noting the summons and complaint had not been cured, ultimately stated "the failure to properly subscribe a pleading is a fundamental defect." Schaefer, 250 Wis. 2d 494, ¶ 37. Here, Stiller relies on that language to assert the defect here was fundamental, depriving the circuit court of jurisdiction.

¶ 14. As in Seay, we decline to determine whether the failure to sign the complaint here is properly considered a technical or a fundamental defect. Rather, we conclude the omission was promptly cured under Wis. Stat. § 802.05(l)(a). In addition to the subscription requirement, that statute explicitly provides a remedy for pleadings that have been improperly subscribed: "If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or the movant." (Emphasis added.) In other words, even if a pleading that does not conform to the subscription requirement of Wis. Stat. § 802.05(l)(a) is characterized as containing a fundamental defect that normally deprives the court of jurisdiction, that pleading is curable.

¶ 15. This conclusion does not inherently contradict Schaefer. Indeed, the court there explicitly acknowledged an "allowance for corrective action." Schaefer, 250 Wis. 2d. 494, ¶ 37. For that reason, Schaefer's holding depended in part on the fact that the improperly signed summons and complaint had not been cured. See id. Moreover, t Wis. Stat. §802.05 is nearly identical to Rule 11(a) of the Federal Rules of Civil Procedure. Seay, 250 Wis. 2d 761, ¶ 9. Accordingly, we may follow persuasive federal court decisions on this point of law. Id., ¶ 8 n.4. The United States Supreme Court has said of Rule 11(a):

The rule was formulated and should be applied as a cohesive whole. So understood, the signature requirement and the cure for an initial failure to meet the requirement go hand in hand. The remedy for a signature omission, in other words, is part and parcel of the requirement itself.

Becker v. Montgomery, 532 U.S. 757, 765 (2001). Thus, the failure to sign a pleading, motion, or other paper in accord with Wis. Stat. § 802.05(l)(a) does not deprive the court of jurisdiction if the omission has been properly cured under the same statute.

¶ 16. Whether a defect is properly cured is a question of law we review de novo. See Schaefer, 250 Wis. 2d 494, ¶ 20. Here, the circuit court determined the omission was promptly cured by the filing of an amended summons and complaint on the same day the motion to dismiss was filed. Stiller asserts this was not prompt remedial action because, he claims, both his answer to the complaint and his answer to the interrogatories previously put Rabideau on notice of the initial defect. We disagree.

¶ 17. Stiller's answer stated merely that Rabideau's "pleadings are defective and properly dismissed." As the circuit court noted, the answer's language "is relatively vague and does not specifically call the plaintiffs attention to the defect. . . . [I]t would require the defendant examine each and every aspect of all pleadings filed and attempt to justify or explain them." As such, the answer did not adequately put Rabideau on notice of the missing signature on the complaint.

¶ 18. The answer to interrogatory number eight was also insufficient to put Rabideau on notice of an omission because the answer was misleading and, in part, simply incorrect. The interrogatory answer stated the summons and complaint filed with the court were unsigned, but only the complaint was lacking a signature. Moreover, the answer went on to indicate that the affirmative defenses had been raised "to preclude waiver." To that extent, we also agree with the circuit court that such an answer may have led Ra-bideau to conclude the affirmative defenses were merely prophylactic and not substantive challenges to jurisdiction or the merits. Thus, not until Stiller filed the motion to dismiss on July 15, was Rabideau finally put on notice of the error. Because the correction was filed on the same day, it was prompt. Because the pleadings were cured of their signature omission, in accord with Wis. Stat. § 802.05(1)(a), there was no fundamental defect depriving the court of jurisdiction.

¶ 19. Finally, Stiller challenges the amended summons and complaint, arguing they cannot relate back under Wis. Stat. § 802.09(3) to the filing date of the originals, meaning the statute of limitations has expired on Rabideau's claim. He asserts that the relation-back statute applies only to technical defects. He points to Bartels v. Rural Mut. Ins. Co., 2004 WI App 166, ¶ 17, 275 Wis. 2d 730, 687 N.W.2d 84, where we stated "a fundamental defect cannot be remedied with an amended pleading."

¶ 20. We are not convinced Bartels applies so broadly. In that case, the question was whether an amended complaint could be used to add a defendant, never properly served under Wis. Stat. § 801.02, after the statute of limitations expired. We concluded the amended complaint could not cure the fundamental defect of failing to name a party, because the failure to properly serve the party initially meant the circuit court never acquired personal jurisdiction.

¶ 21. Here, the action was properly commenced under Wis. Stat. § 801.02 and we are not faced with a question of faulty service. Despite Bartels's broad pronouncement, the footnote immediately following that quoted language indicates we were concerned about defects in service, not subscription. Bartels, 275 Wis. 2d 730, ¶ 17 n.6. Applying the relation-back statute to pleadings used to cure a subscription requirement omission is consistent with the remedial language of Wis. Stat. § 802.05(l)(a). Nothing in Wis. Stat. §§ 802.05 or 802.09 suggests otherwise.

By the Court. — Order affirmed.

       This court granted leave to appeal a non-final order on January 12, 2006. This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise stated.

       The circuit court had also noted that even if the interrogatory answer had been sufficient to put Rabideau on notice on June 6, the cure was still prompt even if not filed until July 15. The court reasoned, in part, that litigation was in its early stages and trial was approximately a year away. Stiller disagrees, arguing "promptly" has a dictionary definition of "without delay," meaning "reactionary or quick in nature" and implying immediacy. Stiller also takes issue with the court's analysis of the case's procedural status to determine promptness.
      But another dictionary definition for "prompt," from our unabridged edition rather than the college edition, is "ready and quick to act as occasion demands." WebsteR's New ThiRD INTERNATIONAL Dictionary 1816 (unabr. 1993) (emphasis added). Stiller is correct to note that we should give consideration to the words the legislature chose. Because the legislature could have chosen "immediately" if it meant that, and because it could have even specified a time frame for remedial action, we are confident that circumstance and procedural posture of a case are factors that may be considered when determining whether a defect is cured "promptly."

       We therefore disagree with the circuit court's conclusion that the failure to sign the complaint was merely a technical defect. Rather, we hold that any defect — technical or fundamental — was adequately cured. Nonetheless, we may affirm the circuit court if we reach the same result, albeit with alternate reasoning. See Doe v. GMAC, 2001 WI App 199, ¶ 7, 247 Wis. 2d 564, 635 N.W.2d 7.


author: NETTESHEIM, J.

text:
    Wayne A. Briesemeister and Cindy J. Briesemeister, Plaintiffs-Appellants-Cross-Respondents, v. Philip Lehner, Donn Vaudreuil, Sally Eickelmann, John A. Lehner, Louise Vaudreuil Linneman, Robert H. Lehner, Jr. a/k/a Robert H. Lehner Jr., M.D., James Hoadley, Betsy Tishler, Michael P Lehner, David L. Lehner, Joseph Reed Millsaps, a/k/a J. Reed Millsaps, and Nina Millsaps, Defendants-Respondents-Cross-Appellants.
    Court of Appeals

      No. 2005AP1237.

      Submitted on briefs April 20, 2006.

      Decided June 28, 2006.

    2006 WI App 140
    (Also reported in 720 N.W.2d 531.)

      On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of John V O'Connor of O'Connor, DuMez, Alia & McTernan, S.C., Kenosha.
    On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the brief of Robert E. Hankel of Hankel, Bjelajac, Kallenbach, Lehner & Koenen, L.L.C., Racine, and J. Reed Millsaps, Northbrook, Illinois.
    Before Snyder, PJ., Nettesheim and Anderson, JJ.
   NETTESHEIM, J.

¶ 1. Disappointed potential buyers Wayne and Cindy Briesemeister sued to enforce a real estate contract on a residence ultimately sold by the Lehner group to Joseph and Nina Millsaps. The Lehner group and the Millsaps brought counterclaims relating to the Briesemeisters' filing of a lis pendens. On competing motions for summary judgment, the trial court dismissed the Briesemeisters' claims. The counterclaims were dismissed following a trial to the court.

¶ 2. The Briesemeisters appeal from the portion of the judgment dismissing their claim for specific performance. The Millsaps and the Lehner group cross-appeal from the portion of the judgment dismissing their counterclaims. We hold that, under the terms of the contract, the Briesemeisters' delivery of notices of defect relinquished to the Lehner group, as sellers, all control over the consummation of the transaction, including whether to respond to the notices or to the Briesemeisters' later attempt to revive the deal, and whether to sell to another buyer.

¶ 3. We also hold that there is no evidence that the Briesemeisters' filing of the lis pendens was frivolous or that their attempt to elevate their contract over that of the Millsaps and the Lehner group was improper. Accordingly, we reject both the appeal and cross-appeal and affirm the judgment in full.

BACKGROUND

¶ 4. This case involves a dispute over whether the Briesemeisters or the Millsaps are the rightful buyers of the residence located on 68th Street in the City of Kenosha and offered for sale by the Lehner group.

¶ 5. In April 2003, the Briesemeisters contacted realtor Robert Wagner to assist them in their search for a house. Wagner was an independent contractor associated with The Jacobson Group/GMAC Real Estate. Wagner showed the Briesemeisters several houses, and in May 2003, showed them the 68th Street property. After several more viewings of that property and others, the Briesemeisters executed a WB-11 Residential Offer to Purchase on June 23, offering $271,000. After a series of counteroffers, the Briesemeisters signed the Lehner group's "WB-44 Counter-Offer" of $276,000 on July 1,2003. The counteroffer provided that "[a]ll terms and conditions remain the same as stated in the Offer to Purchase except the following." The four exceptions listed related to the new price, a clarification about access to a closet, the closing date and a requirement that both buyers sign the counteroffer.

¶ 6. The Offer to Purchase contained a financing contingency and an inspection contingency granting the Lehner group the right to cure any defects identified. The "Right to Cure" provision of the Offer to Purchase provided:

In addition, the Offer to Purchase provided, "Once received, a notice cannot be withdrawn by the Party delivering the notice without the consent of the Party receiving the notice."

¶ 7. After signing the counteroffer, the Briese-meisters invoked the inspection contingency, and hired three inspectors.

¶ 8. On July 11, Wagner delivered on the Briese-meisters' behalf two notices of defects, or "WB-41 notices," to Colleen Deininger, the Lehner group's real estate broker, listing defects to which the Briesemeisters objected and wanted the sellers to address. The first notice stated: "Buyer requests seller to cure the following issues," and listed nine defects identified during the inspections. The defects ranged in severity from a loose toilet base and outdated light fixtures in the closets, to evidence of squirrel and skunk infestation and possible asbestos in some components of the heating system. The second notice related only to the possible asbestos and advised that the Briesemeisters intended to submit samples of the boiler pipe wrap for testing. This second notice also demanded that the Lehner group agree to pay for the cost of asbestos removal or remediation in excess of $1500 or the Briesemeisters would have forty-eight hours to decide whether to consider the offer null and void. The top of WB-41 notices read in bold lettering: "Caution: Use A WB-41 Notice If A Party Is Giving A Notice Which Does Not Require The Other Party's Agreement. Use A WB-40 Amendment If Both Parties Will Be Agreeing To Modify The Terms Of The Offer."

¶ 9. Wagner understood that the issuance of a notice of defect required no response from the seller and could serve to terminate the offer. He also understood that a WB-40 amendment, requiring both parties' agreement, would be used if a party wanted to negotiate terms stated in the offer. Wagner told the Briesemeisters that if they gave notice of material defects, the Lehner group did not have to cure the defects, but could instead walk away, thereby "killfing] the deal." Thus, Wagner advised the Briesemeisters to limit the list of defects to major or safety-related items. Wayne Briesemeister did not give Wagner a green light to negotiate any items on the list, however, and Wagner believed that Wayne "felt strongly" that all of the listed defects had to be either repaired or replaced.

¶ 10. Upon receipt of the hand-delivered notices from Wagner, Deininger confirmed that Wagner understood the significance of the delivery. Deininger thought that the Briesemeisters were "nitpicking" and that the transaction would be difficult to close. Deininger faxed the notices to the Lehner group, although she did not believe they would agree to the repairs and the cost of asbestos remediation. Thus, she advised Wagner that essentially "the deal was dead." When Wagner expressed a desire to negotiate, Deininger told him, "Well, once you give a notice, as you know, the decision on how to proceed is up to the seller."

¶ 11. After delivering the two WB-41 notices, the Briesemeisters began to have second thoughts because of the language in the Offer to Purchase that "[o]nce received, a notice cannot be withdrawn by the Party delivering the notice without the consent of the Party receiving the notice." Worried they might lose the house, Wayne instructed Wagner to "get rid of those notices and remove my financing contingency." Wagner telephoned the Wisconsin Realtors Association (WRA) hotline to ask how to "get out of' the notices. Richard Staff, then WRA general counsel, told Wagner that "the only thing you could possibly do would be to draft an amendment and get the other party to agree to removing your notices." Following up on this advice, the Briesemeisters submitted an amendment dated July 17 removing the financing contingency and withdrawing the two notices, "[d]eem-ing the Inspection and Testing contingencies satisfied."

¶ 12. Meanwhile, hack on July 6, the Lehner group's realtor had shown the 68th Street property to the Millsaps. This was in keeping with the realtor's policy to continue to market a property so as to have a backup buyer in case an inspection contingency "goes bad like a number of them do." On July 16, the Millsaps submitted an Offer to Purchase for $280,000. The Mill-saps' offer also contained financing and inspection contingencies, and proposed that certain items of personal property be included.

¶ 13. Philip Lehner, the member of the Lehner group acting as its power of attorney, did not fully discuss with Deininger the Millsaps' offer vis-á-vis the Briesemeisters' amendment until July 18. This discussion produced some disagreement between the two as to how, or whether, to respond to the Briesemeisters' attempt to withdraw the notices of defects. Like Wagner, Deininger also contacted Staff, the WRA attorney. Based on that conversation and her review of the Offer to Purchase, Deininger felt confident that doing nothing in regard to the Briesemeisters' notices of defects and proposed amendment would effectively terminate the contract. On that same day, the Lehner group extended a counteroffer to the Millsaps.

¶ 14. On July 19 or 20, Deininger verbally told Wagner that the Lehner group had accepted another offer, and that the deal with the Briesemeisters "is dead, move on." The Briesemeisters immediately delivered a second amendment reiterating the withdrawal of the notices and removal of the contingencies and offering "[p]urchase price in other bona fide offer plus $5,000."

¶ 15. The Lehner group rejected the amendment, writing across it, "Rejected. Philip Lehner, Individually & RO.A 7/21/03." That same day, the Lehner group, via Deininger, hand-delivered the notated amendment and the Briesemeisters' earnest money to Margaret Jacobson, owner of the Jacobson Group, the realty company with whom Wagner was associated as an independent contractor. Delivery was made to Jacobson because Wagner had prior plans to be out of town. Jacobson telephoned Wagner and also immediately contacted Attorney J. Michael McTeman, whose office handled legal issues for the Jacobson Group.

¶ 16. Later that day, McTernan notified Deininger that the Briesemeisters were "ready, willing and able to close this transaction," and submitted a third WB-41 notice again revoking all contingencies as well as "[a]ny other contingency of Buyer." However, the Lehner group stood firm on its intent to honor its contract with the Millsaps.

¶ 17. On August 27, the Briesemeisters filed suit and followed with a lis pendens on August 28. The suit demanded that the contract between the Millsaps and the Lehner group be declared null and void and that the Lehner group deliver to the Briesemeisters good and clear title to the property. The Millsaps and the Lehner group both counterclaimed, alleging slander of title and asking that the lis pendens be discharged and punitive damages awarded. In addition, the Lehner group alleged tortious interference with contract, and the Millsaps sought a declaration that they, and not the Briesemeis-ters, had an enforceable contract to purchase the property.

¶ 18. The Millsaps then moved for judgment on the pleadings. The motion was heard by Judge Wilbur W Warren III, who denied the motion, ruling that, since the Briesemeisters' waiver of the contingencies and the Le-hner group's rejection of the offer both were dated July 21, a question of fact existed as to which occurred first.

¶ 19. Discovery continued, and in February 2004, the Millsaps, the Lehner group and the Briesemeisters all moved for summary judgment. By this time the case had been transferred to Racine County Circuit Court Judge Charles Constantine, sitting by substitution. It is Judge Constantine's rulings that we review on this appeal. Judge Constantine denied the Briesemeisters' motion, granted the Millsaps' and Lehner group's motions, discharged the lis pendens, and scheduled the counterclaims for trial.

¶ 20. After a two-day trial to the court, Judge Constantine ruled that the Millsaps did not have standing to bring the slander of title counterclaim and that Joseph Millsaps, an attorney and party, could not recover costs entailed in removing the lis pendens, due to his personal interest. As to the Lehner group, Judge Constantine ruled that both the slander of title and the tortious interference with contract counterclaims failed because the lis pendens was not filed with actual knowledge that the documents or the theory of recovery was frivolous, and that the Briesemeisters' legal position, while unsuccessful, was not untenable. The Briesemeisters appeal; the Millsaps and the Lehner group cross-appeal.

APPEAL

¶ 21. The Briesemeisters appeal the grant of summary judgment to the Millsaps and the Lehner group. Summary judgment methodology is well established and need not be repeated here. See, e.g., Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). In essence, summary judgment is appropriate when no material factual dispute exists and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2003-04). We review summary judgment de novo, applying the same method as the trial court. Green Spring Farms, 136 Wis. 2d at 315. In addition, our review requires that we interpret the language of the real estate contract. The construction of a written contract also is a question of law that we review without deference. Galatowitsch v. Wanat, 2000 WI App 236, ¶ 11, 239 Wis. 2d 558, 620 N.W.2d 618.

Withdrawal of Notices/Waiver of Contingencies

¶ 22. After invoking the inspection contingency, the Briesemeisters delivered two notices of defect, one enumerating nine alleged defects, the other limited to asbestos. Approximately one week later, the Briese-meisters attempted to withdraw the notices and waive the inspection and financing contingencies. The Briese-meisters focus their appellate argument on the waiver of contingencies. They contend that nothing in the contract prohibited waiver of the contingencies and, absent notice from the sellers terminating the contract, the waiver was accomplished before the contract expired. However, the Briesemeisters' framing of their argument fatally disregards the decisive potential consequences of their delivery of the notices of defect.

¶ 23. On July 11, the Briesemeisters delivered to the Lehner group two notices of defect. Per the Offer to Purchase, this delivery afforded the Lehner group, as sellers, three options: (1) deliver, within ten days, written notice of its intent to cure the defects; (2) deliver notice that it would not cure the defects; or (3) do nothing. The Lehner group did nothing. By the contract's own terms, the Lehner group's inaction rendered the Offer "null and void."

¶ 24. The Briesemeisters maintain, however, that the contract remained vital and that nothing in it barred them from waiving their contingencies. In a vacuum, or under different facts, that argument may have some merit. Here, however, the Briesemeisters themselves modified the standard WB-40 amendment language by adding the following to their July 17 amendment: "1) Buyer withdraw[]s two Notices numbered #1 & #2 delivered July 11th, 2003. Deeming the Inspection and Testing contingencies satisfied." The Briesemeisters' second WB-40 amendment on July 20 essentially repeated that language. But these so-called waivers of contingencies were not simply waivers; they also attempted to withdraw the notices of defects. This is critical, because the Offer to Purchase expressly provides that "[o]nce received, a notice cannot be withdrawn by the Party delivering the notice without the consent of the Party receiving the notice." It is undisputed that the Lehner group did not consent to the withdrawal of the notices.

¶ 25. The clarity of the language notwithstanding, the Briesemeisters assert that Judge Constantine erred by "blur[ring] the distinctions between the 'withdrawal' of a notice, and a 'waiver' of a contingency." They urge us to adopt the construction endorsed by Judge Warren at the hearing on the motion for judgment on the pleadings. Judge Warren read the notice-withdrawal provision to mean that a party cannot unilaterally withdraw a notice "that would otherwise be of some detriment to themselves and not to the party being relieved of the obligation." The Briesemeisters contend that they should be permitted to withdraw the inspection contingency because it worked only to their own benefit and the Lehner group had no protectible interest in it. They cite Godfrey Co. v. Crawford, 23 Wis. 2d 44, 49, 126 N.W.2d 495 (1964), in support, where the supreme court upheld the right of a party to a contract to waive a zoning contingency for that party's benefit so that the contract could go forth.

¶ 26. We agree that Godfrey Co. shares certain factual similarities with this case. In Godfrey Co., the defendant sellers accepted plaintiff Godfrey Company's written Offer to Purchase on a parcel of land. Id. at 46. The offer contained two provisions regarding rezoning of the property, which provided that the offer would be null and void if the rezoning was unsuccessful or could not be consummated by March 1, 1963, or if the sellers were unable to comply due to a title defect. Id. On February 26, the Godfrey Company notified the sellers that it was waiving the rezoning condition. Id. at 47. On March 7, sellers conveyed the premises to another buyer, and Godfrey Company sued for specific performance on the contract. Id. at 46-47.

¶ 27. The supreme court upheld the Godfrey Company's right to waive the rezoning condition. In so ruling, however, the court identified "the crucial issue" to be "whether, under the terms of the contract... the buyer had the right... to waive the condition . ..." Id. at 48 (emphasis added). But, unlike the contract in this case, the court's discussion of the parties' agreement does not reveal any provision that specifically prohibited the withdrawal of a notice or required the consent of the other party to the withdrawal.

¶ 28. Thus, despite the facial similarities to God-frey Co., this case does not compel the same result. Godfrey Co. controls this case only insofar as we are directed to look to the language of the parties' contract. And here the language could not be more plain: "Once received, a notice cannot be withdrawn by the Party delivering the notice without the consent of the Party receiving the notice." The Lehner group did not consent to the Briesemeisters' attempt to withdraw either notice. Restyling the attempted withdrawal of notice as a waiver of contingency is insufficient. Without the Lehner group's consent, the notices could not be withdrawn.

¶ 29. Moreover, this is not merely an academic exercise. Both realtors recognized, and the Briesemeis-ters were cautioned, that delivering a notice carried grave potential implications for them as hopeful buyers. The enormity of the step is made clear in a treatise co-authored by Staff, the then general counsel for WRA to whom the Briesemeisters' own realtor turned for advice. Staff cautions buyers to appreciate the significance of delivering a notice of defects:

With respect to those items in the inspection report(s) which are defects . .. the buyer may consider giving a notice of defects. The buyer must understand, however, that this is a serious step. If the seller has the right to cure, the seller may choose, in his or her discretion, whether to cure the listed defects or let the offer become null and void. If the seller has another more desirable offer, one may assume that the seller will let the offer die.

Scott C. Minter and Richard J. Staff, Wisconsin Real Estate Law, § 7.08(A), at 184 (Univ. of Wis. Law School 2001). Staff explains the underlying rationale:

3. No Withdrawal of Notices. The Department-approved [WB-11] offers also provide that one party may not withdraw a notice that has been received by the other party, at least not without the other party's consent. This provision is similar to the common law doctrine that a notice cannot be withdrawn if the party who has received the notice takes action in rebanee upon the notice.... This wib mean that, for example, a buyer who gives a notice of defects will not be permitted to unilaterally change his or her mind and withdraw the notice of defects once it has been received by the seller.

Id., § 7.09(G), at 203-04.

¶ 30. The Briesemeisters insist, however, that the withdrawal of a notice is not the same as the waiver of a contingency. We agree — but, as we have already noted, that argument misses the mark. The July 11 delivery of the notices ceded control to the Lehner group and triggered the options available to it as sellers, one of which was to do nothing, let the offer expire, and negotiate with other buyers. Withdrawing the contingencies or notices of defect several days later was immaterial to the events set in motion by the giving of the notices. We do not decide whether an inspection contingency can be waived under other circumstances. We decide only that the notices could not be withdrawn under this contract unless the Lehner group consented. The language of the contract is clear, and neither Godfrey Co. nor any other authority the Briesemeisters cite permits us to overrule a contract's express language. The Briesemeisters chose to proceed in the fashion they did despite contrary advice from their realtor. By doing so, they miscalculated their risk.

Timeliness of Attempted Waiver

¶ 31. The Briesemeisters maintain that a correct framing of the issue is whether they waived the inspection contingency before the contract was terminated. We disagree. The contract did not obligate the sellers to respond. The Briesemeisters chose the notices; the Leh-ner group legitimately chose another buyer. Therefore, having concluded that delivering the notice of defects sent the ball into the Lehner group's court, addressing the timeline involved in any attempted waiver is unnecessary.

Effectiveness of Notice

¶ 32. The Briesemeisters next argue that the Le-hner group could have terminated the contract by delivering an effective notice that "Seller will not cure." Specifically, the Briesemeisters contend that the Leh-ner group failed to provide notice in accord with the directives of the Offer to Purchase. However, as we have already held, the parties' contract did not obligate the Lehner group to provide any notice. Thus, we reject the Briesemeisters' argument on this threshold basis. However, since the Lehner group has responded to the Briesemeisters’ argument on the merits, we also address the issue in the alternative.

¶ 33. As early as July 11, Deininger, the Lehner group's realtor, told Wagner, the Briesemeisters' realtor, that "the deal was dead." On July 21, the Lehner group personally delivered their written rejection of the amendment to Margaret Jacobson of the Jacobson Group because Wagner was out of town. The Briese-meisters maintain that, per the terms of the contract, the Lehner group's oral notice did not suffice and the delivery of the written rejection was ineffective because delivery was not made to Wagner.

¶ 34. As it relates to delivery, the Offer to Purchase provided, in relevant part:

DELIVERY OF DOCUMENTS AND WRITTEN NOTICES! Unless otherwise stated In this Offer, delivery of documents and written notices to a Party shall be effective only when accomplished by one of the methods specified [below].
(1)[Describing mail delivery]
Seller's recipient for delivery (optional): Colleen Deininger c/o C-21 Colleen Realty
Buyer's recipient for delivery (optional): Robert Wagner c/o Jacobson Group GMAC Real Estate
(2) By giving the document or written notice personally to the Party, or the Party's recipient for delivery if an individual is designated [above],
(3) By fax transmission of the document or written notice....
|DELlVEKY/RECEiFT| ... Personal delivery to, or actual receipt by, any named Buyer or Seller constitutes personal delivery to, or actual receipt by Buyer or Seller.

¶ 35. The oral notice prong of the Briesemeisters' argument fails not because oral notice is sufficient; under this contract, it is not. It fails because, as we have repeatedly noted, the Lehner group was not obliged to give any notice.

¶ 36. The written notice aspect of the Briesemeis-ters' argument also is without merit. First, the Offer to Purchase provides that "[pjersonal delivery to, or actual receipt by, any named Buyer ... constitutes personal delivery to or actual receipt by Buyer...." Wayne Briesemeister acknowledged receiving the document by facsimile on July 21.

¶ 37. Second, the Lehner group's written rejection of the Briesemeisters' attempted withdrawal of the notices was delivered to the Briesemeisters "c/o Jacobson Group GMAC Real Estate," the realtor with whom Wagner was associated. The agency agreement between the Briesemeisters and Wagner provided that Wagner was the agent for the Jacobson Group, and that the Jacobson Group, as broker, had the exclusive right to act as the Briesemeisters' agent. Thus, the written notice to the Briesemeisters' agent constituted notice to the Briesemeisters. Tele-Port, Inc. v. Ameritech Mobile Commons, Inc., 2001 WI App 261, ¶ 7, 248 Wis. 2d 846, 637 N.W.2d 782 (Notice to an agent is imputed to the principal if the matter about which notice is given is relevant or pertinent to the subject matter of the agency.). This same principle of law compels us to reject the Briesemeisters' related argument that the Lehner group's rejection notice was insufficient because it was delivered to Margaret Jacobson, not Wagner.

¶ 38. We reject the Briesemeisters' arguments and affirm the trial court's grant of summary judgment to the Lehner group and the Millsaps.

CROSS-APPEAL

¶ 39. The Lehner group and the Millsaps launched various counterclaims relating to the Briese-meisters filing of the lis pendens. Both had counterclaimed for slander of title, the Lehner group alone counterclaimed for tortious interference with contract, and the Millsaps sought attorney fees. After a bench trial, the trial court dismissed the counterclaims and discharged the lis pendens. We affirm the court's ruling in all respects.

Slander of Title

¶ 40. The Lehner group and the Millsaps contend that the Briesemeisters filed the lawsuit and lis pen-dens despite knowing that their contract was null and void. A lis pendens serves as notice of pending litigation that may affect real estate. Zweber v. Melar Ltd., 2004 WI App 185, ¶ 6, 276 Wis. 2d 156, 687 N.W.2d 818. Wisconsin's lis pendens statute, Wis. Stat. § 840.10(1)(a), requires filing notice of litigation with the register of deeds. See Kensington Dev. Corp. v. Israel, 142 Wis. 2d 894, 901-02, 419 N.W.2d 241 (1988). Filing a lis pendens that the plaintiff knows or should have known is false, a sham or frivolous is actionable in damages, including punitive damages. Id. at 902-03; Wis. Stat. § 706.13.

¶ 41. The trial court had decided on summary judgment that the Briesemeisters' attempted withdrawal of their notices of defects doomed their claim for specific performance. As a result, the Millsaps acquired ownership of the property. At the ensuing bench trial on the counterclaims of the Lehner group and the Mill-saps, the court ruled that its earlier decision did not compel the conclusion that the Briesemeisters knew or should have known that filing the suit and lis pendens was false, a sham or frivolous.

¶ 42. Inquiries about frivolousness involve a mixed question of law and fact. See Juneau County v. Courthouse Employees Local 1312, 221 Wis. 2d 630, 639, 585 N.W.2d 587 (1998). The determination of what a party knew or should have known is a factual question, and the trial court's findings of fact will not be reversed by an appellate court unless the findings of fact are clearly erroneous. Id.; see Wis. Stat. § 805.17(2). We examine both express and implied findings of fact, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. See Shepard v. Outagamie County Circuit Court, 189 Wis. 2d 279, 286, 525 N.W.2d 764 (Ct. App. 1994). However, the ultimate conclusion of whether the trial court's factual determinations support the legal determination of frivolousness is a question of law which this court determines independent of the trial court, while benefiting from its analysis. See Juneau County, 221 Wis. 2d at 639.

¶ 43. The Millsaps contend that, through Wagner, the Briesemeisters knew "from the very moment that the original offer was made" that they would lose all rights to the property if they gave the Lehner group a notice of defects and the Lehner group refused to cure. They further contend that the Briesemeisters knew with certainty on July 19 that their offer was "dead, null and void" because the Lehner group had accepted another offer. The Lehner group makes similar arguments. None persuade us.

¶ 44. Wayne Briesemeister testified at trial that when he grew uncomfortable with the advice he was getting from Wagner, he contacted Attorney McTernan. McTernan's initial impression was that the Briesemeis-ters had a "legitimate right to the home." Wayne also testified that he never before had heard the term lis pendens, did not have a good understanding of its function, and filed it and the lawsuit on the advice of his attorney.

¶ 45. The evidence also demonstrated that Mc-Ternan, the Briesemeisters' attorney, was a licensed real estate broker before studying law, and that his practice now focuses on business and real estate. After evaluating the Briesemeisters' position, McTernan consulted with another real estate attorney who agreed that McTernan "had an argument" that the contingencies could be waived. McTernan also contacted Staff at WRA who, McTernan said, indicated that he could see McTernan's position and thought the current WB-11 Offer to Purchase forms were unclear as to whether contingencies can be waived after a notice is given. Since the home was part of an estate, McTernan filed a lis pendens so that, should anyone else attempt to purchase the property, it would "put the world on notice" that it was in litigation.

¶ 46. In summary, when the Briesemeisters learned that the deal was at risk, they lost confidence in Wagner's advice and sought a legal opinion that produced some hope that the deal might still be salvaged. This produced an arguable legal theory that the Briese-meisters could validly waive the contingencies, and the lawsuit and the lis pendens were filed accordingly Although that theory ultimately proved incorrect, we agree with the trial court that the action was not groundless. The facts do not support a conclusion that the lis pendens was filed with actual or constructive knowledge that it was false, a sham or frivolous. Stated differently, but to the same effect, we cannot say that the Briesemeisters knew, or should have, that their attempt to enforce their Offer to Purchase was without any arguable legal basis. Nor can we accept the Mill-saps' invitation to declare that the Briesemeisters filed the lawsuit simply to "scare off the rightful purchasers." We conclude that the lawsuit and lis pendens were filed in an honest effort to salvage their deal.

Tortious Interference with Contract

¶ 47. The Lehner group contends the Briesemeis-ters tortiously interfered with the contract between the Lehner group and the Millsaps. They assert the alleged interference delayed completion of the contract, adding expense and jeopardizing the transaction. While the Briesemeisters' actions undoubtedly interfered with the contract between the other parties, we agree with the trial court that the Briesemeisters' conduct was not unjustified under the facts of this case.

¶ 48. The elements of a claim for tortious interference with a contract are: (1) the plaintiff had a contract or a prospective contractual relationship with a third party, (2) the defendant interfered with that relationship, (3) the interference by the defendant was intentional, (4) there was a causal connection between the interference and damages, and (5) the defendant was not justified or privileged to interfere. Finch v. Southside Lincoln-Mercury, Inc., 2004 WI App 110, ¶ 18 n.8, 274 Wis. 2d 719, 685 N.W.2d 154. The Lehner group asserts that only the fifth prong, whether the Briesemeisters were justified or privileged to interfere, is at issue.

¶ 49. The fifth prong is the decisive one, but we first consider the third one, whether interference by the Briesemeisters was intentional. Wisconsin JI — Civil 2780, "Intentional Interference with Contractual Relationship," addresses each of the five elements of the tort. The question regarding intent asks:

In determining (defendant)'s intent, you may consider (his) (her) actions and statements. Ordinarily, it is reasonable to infer that a person intends the natural and probable consequences of (his) (her) acts.
Although other reasons may appear, (plaintiff) must prove that (defendant)'s prime purpose was to interfere with the contractual relationship (plaintiff) had with (3rd party) or (defendant) knew or should have known that such interference was substantially certain to occur as a result of the conduct.

Wis JI — Civil 2780 (emphasis added).

¶ 50. The Briesemeisters' complaint sought a declaration that the other parties' contract was null and void. Obviously, then, the Briesemeisters' prime purpose was to defeat that contract, which we deem the equivalent of interference with the contract. Interference alone, however, does not establish the tort; in addition, the interference must be improper. Mackenzie v. Miller Brewing Co., 2000 WI App 48, ¶ 63, 234 Wis. 2d 1, 608 N.W.2d 331. The Briesemeisters bore the burden of proving that their conduct was justified or privileged, see Wis JI — Civil 2780, in other words, proper.

¶ 51. To determine whether conduct is justified or privileged, the trier of fact must weigh all the circumstances. See id. The factors to be considered include the nature, type, duration and timing of the conduct, whether the interference is driven by an improper motive or self-interest, and whether the conduct, even though intentional, was fair and reasonable under the circumstances. Id.

¶ 52. The Briesemeisters look to Restatement (Second) of Torts, § 773 (1979), "Asserting Bona Fide Claim," to show that their conduct was fair and reasonable under the circumstances. It provides:

One who, by asserting in good faith a legally protected interest of his [or her] own or threatening in good faith to protect the interest by appropriate means, intentionally causes a third person not to perform an existing contract or enter into a prospective contractual relation with another does not interfere improperly with the other's relation if the actor believes that his [or her] interest may otherwise be impaired or destroyed by the performance of the contract or transaction.

Id. The Briesemeisters maintain that they honestly believed in their superior right to the property and, in good faith, informed the other parties of their interest and followed through with the legal action necessary to enforce it.

¶ 53. We acknowledge that the trial court stated that it was not convinced that the Briesemeisters had attempted to interfere with the Lehner group-Millsaps contract. But based on the totality of the court's findings and further comments, we interpret the court to say that the Briesemeisters had not tortiously interfered with the contract. The court noted that the Briesemeisters sought advice from a "highly reputable firm." The lawyer with whom they met consulted other attorneys, researched Wisconsin statutes, case law and the administrative code, and performed a Westlaw search. It concluded that the Briesemeisters' and McTernan's action, even if misguided, was reasonable and "espoused in good faith."

¶ 54. Accordingly, we read the trial court's decision to mean that the Briesemeisters' actions justified the interference. Although the Briesemeisters later were proved incorrect, they believed at the time that they filed the lawsuit and lis pendens that they had a contractual right to the property. A party has a right to protect what he believes to be his legal interest. Cudd v. Crownhart, 122 Wis. 2d 656, 662, 364 N.W.2d 158 (Ct. App. 1985). If that party's position ultimately is demonstrated to be incorrect, liability should not be imposed on that lone factor. Id. The Lehner group cites no other factors. The Briesemeisters and McTernan may have been mistaken, but we cannot say their actions were unjustified.

CONCLUSION

¶ 55. We hold that the Briesemeisters' decision to deliver notices of defects changed the balance of power such that the contract terminated through the Lehner group's ensuing inaction. The Briesemeisters' two-pronged attempt to revive the contract was to no avail: withdrawing the notices was not permitted by the contract, and waiving the contingencies was irrelevant under these facts. We also hold that, although the Lehner group was not obligated to provide a notice of their intent not to cure the defects, the method they used constituted effective delivery.

¶ 56. As to the cross-appeal, we hold that the filing of the lawsuit and lis pendens was not ill-motivated. The action was commenced in a belief informed by legal research and professional consultation. Although it ultimately was proved wrong, we hold that it was not filed to slander the Millsaps' title or to tortiously interfere with the contract between the Mill-saps and the Lehner group. We affirm the appeal and cross-appeal.

By the Court. — Judgment affirmed.

       The sellers are ten remainderpersons of a life estate. This opinion will refer to them as the "Lehner group."

       We use "the Briesemeisters" although during this period Cindy Briesemeister was in Tennessee where the couple owned a home. She viewed the 68th Street property only by videotape.

       During the course of the litigation, the parties' real estate agencies and individual realtors also were named as parties, but later were dismissed.

       The Briesemeisters' petition for leave to appeal the order granting the opposing motions for summary judgment was denied.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We do know that Godfrey Co. v. Crawford, 23 Wis. 2d 44, 126 N.W.2d 495 (1964), did not examine the WB-11 Residential Offer to Purchase form at issue here. The current form states that it was approved by the Wisconsin Department of Regulation and Licensing for optional use on April 1, 1999, and mandatory use on November 1, 1999.

       Wisconsin Stat. § 706.13, governing slander of title, provides in relevant part:
      (1) In addition to any criminal penalty or civil remedy provided by law, any person who submits for filing, entering in the judgment and hen docket or recording, any ... lis pendens ... relating to ... the title to real... property, and who knows or should have known that the contents or any part of the contents of the instrument are false, a sham or frivolous, is hable in tort to any person interested in the property whose title is thereby impaired, for punitive damages of $1,000 plus any actual damages caused by the filing, entering or recording.

       Traditionally, courts specified the exceptions to the general rule concerning intentional interference with a contract in terms of a "privilege" to interfere. Hale v. Stoughton Hosp. Ass'n, Inc., 126 Wis. 2d 267, 281, 376 N.W.2d 89 (Ct. App. 1985), abrogation on other grounds recognized by Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir. 1994). The Restatement (Second) of ToRts, § 766 (1979), substitutes the concept of "propriety" for privilege, and provides that "one who 'intentionally and improperly' interferes with the performance of a contract is liable." Hale, 126 Wis. 2d at 281-82 (citation omitted). We have adopted § 766 of the Restatement (Second) of ToRts. Hale, 126 Wis. 2d at 282.

       Because we affirm the dismissal of the slander of title and tortious interference with contract counterclaims, we need not address the Millsaps1 other counterclaims relating to standing, damages and attorney fees.