author: CURLEY, J.

text:
    Mary J. Pietrowski, Plaintiff-Respondent, v. Richard G. Dufrane and Laura K. Dufrane, Defendants-Appellants.
    Court of Appeals

      No. 00-2143.

      Submitted on briefs May 1, 2001. —
    Decided July 17, 2001.

    2001 WI App 175
    (Also reported in 634 N.W.2d 109.)

      On behalf of the defendants-appellants, the cause was submitted on the brief of Michael P Plum of Sayas, Schmuki & Plum, S.C., of Wauwatosa.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas W. Kurzynski of Literski, Rogaczewski & Kurzynski of Greenfield.
    Before Wedemeyer, PJ., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Richard G. Dufrane and Laura K. Dufrane (the Dufranes) appeal from the circuit court's grant of su mmary judgment in favor of Mary J. Pietrowski on her cause of action to enforce a restrictive covenant which she claimed prohibited the Duf-ranes from constructing a detached, two-car garage on their property. The Dufranes argue that the circuit court erred in granting Pietrowski's motion for summary judgment because: (1) Pietrowski waived the right to enforce the restrictive covenant; (2) enforcing the restrictive covenant would result in inequity and injustice; and (3) violations of the restrictive covenant by others demónstrate a change in the character of the neighborhood and constitute an abandonment of the restrictive covenant. We are satisfied that the circuit court properly granted summary judgment in Pietrowski's favor and we affirm.

I. Background.

¶ 2. In May of 1998, the Dufranes purchased a parcel of real estate consisting of a single-family residence with an attached two-and-one-half car garage in the Brookdale subdivision located in Greenfield. Approximately three months later, the Dufranes procured a building permit for the construction of an additional 440-square-foot building on their property. Shortly thereafter, the Dufranes began constructing a detached two-and-one-half car garage on the southeast corner of their property, immediately adjacent to Pietrowski's property.

¶ 3. During the construction, Pietrowski informed the Dufranes multiple times that the garage violated the restrictive covenants contained in the Declaration of Restrictions executed in 1940 by the subdivision's original developer. The restrictions at issue prevent property owners in the subdivision from erecting more than one family dwelling and one private garage on their land. Pietrowski asserted that because the Dufranes already had a house and an attached garage on their property, the construction of an additional garage violated the restrictive covenants.

¶ 4. Once the construction was completed, Pi-etrowski initiated a cause of action seeking to enforce her equitable rights in the restrictive covenant and requesting that the circuit court order that the garage be razed. In their defense, the Dufranes alleged that other property owners in the subdivision, including Pietrowski, had constructed buildings on their property in addition to one single family residence and one garage. Based on this allegation, the Dufranes asserted two affirmative defenses to Pietrowski's claims: (1) that by violating the restrictive covenant herself, Pietrowski waived her equitable right to enforce the restrictive covenant; and (2) that the numerous other violations of the restrictive covenant demonstrated a change in the character of the neighborhood, indicating that the restrictive covenant had been abandoned. Both Pi-etrowski and the Dufranes filed motions for summary judgment. Following a hearing, the circuit court denied the Dufranes' motion, granted Pietrowski's motion and ordered the Dufranes to raze the garage.

II. Analysis.

¶ 5. The Dufranes argue that the trial court erred in granting summary judgment in favor of Pietrowski. Generally, our review of a circuit court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). However, when the grant of summary judgment is based on an equitable right, as in this case, we apply a two-tiered standard of review. Singer v. Jones, 173 Wis. 2d 191, 194-95, 496 N.W.2d 156 (Ct. App. 1992). We review the legal issues de novo. Id. However, the circuit court's decision to grant equitable relief is discretionary and, therefore, will not be overturned absent an erroneous exercise of discretion. Id.

¶ 6. We are satisfied that the pleadings and evi-dentiary materials do not present any genuine issues of material fact. See Wis. Stat. § 802.08(2) (1999-2000). The relevant facts of this case are undisputed. Pi-etrowski and the Dufranes both own homes in the Brookdale subdivision located in Greenfield. Neither party disputes the existence nor the validity of the restrictive covenants which limit their properties' use. Neither party disputes the fact that numerous homeowners in the subdivision, including Pietrowski, have constructed sheds on their property in addition to a house and a garage. Finally, the Dufranes do not dispute the fact that the additional two-and-one-half car garage they constructed violated the restrictive covenant. The only dispute in this case is whether the circuit court erroneously exercised its discretion in granting Pietrowski's request for equitable relief.

¶ 7. In order to determine whether the circuit court properly exercised its discretion in granting equitable relief, we must first analyze the restrictive covenant. "The interpretation of a restrictive covenant is a question of law that we review independently of the trial court." Zinda v. Krause, 191 Wis. 2d 154, 165, 528 N.W.2d 55 (Ct. App. 1995). Because "public policy favors the free and unrestricted use of property," restrictions in deeds "must be strictly construed to favor unencumbered and free use of property." Crowley v. Knapp, 94 Wis. 2d 421, 434, 288 N.W.2d 815 (1980). "It is contrary to the public policy of this state to impose a restriction upon the use of land when that restriction is not imposed by express terms." Id. at 438.

¶ 8. Here, the Declaration of Restrictions clearly and expressly sets out the restrictive covenants. The restrictions applicable in the instant case provide:

1. All real estate located in said subdivision shall be restricted to one family dwelling houses and upon which there shall be built no building other than a one family dwelling house and a private garage for not more than three automobiles, said garage to be used in connection with the dwelling house placed upon said premises... .
10. No building shall be built, erected or maintained on any parcel of land in said subdivision which shall have a width of the building line of less than 100 feet, and an area of less than 10,000 square feet; and not more than one building (excepting the private garage as hereinbe-fore defined), shall be built on said parcel of land.

(Emphases added.) The restrictions clearly prohibit the construction of any building in addition to a single family dwelling house and a private garage. Therefore, the circuit court correctly found that the Pietrowski's shed, the Dufranes' garage, and the other sheds in the subdivision violated the Declaration of Restrictions in the Brookdale subdivision.

¶ 9. Nevertheless, despite the violations of the restrictive covenants committed by Pietrowski and several other homeowners in the subdivision, the circuit court granted Pietrowski's request for equitable relief and enforced the restrictions against the Dufranes. The Dufranes now argue that the circuit court erroneously exercised its discretion in granting equitable relief for three reasons. We shall address each in turn.

¶ 10. First, the Dufranes argue that Pietrowski waived the right to enforce the restrictive covenant because she failed to object to other restrictive covenant violations. Generally, a property owner does not waive the right to enforce a restrictive covenant if one does not act on violations that do not affect him or her. Ward v. Prospect Manor Corp., 188 Wis. 534, 540, 206 N.W. 856 (1926). Therefore, although Pietrowski did not enforce the restrictive covenant against the other homeowners in the subdivision who constructed sheds in violation of the covenant, because these other violations did not affect her, she did not waive the right to enforce the restrictive covenant against the Dufranes. However, the Dufranes argue that this general exception to the waiver rule is inapplicable in the instant case because Pietrowski herself violated the specific limitations of the restrictive covenant which she is now seeking to enforce. We disagree.

¶ 11. Although there are no cases addressing the issue as raised by the Dufranes, we find a specific proposition relied on by our supreme court in Ward to be particularly instructive. In that case, the court asserted: "It is well established that acquiescence in slight violations of a covenant does not deprive an individual lot owner of the right to enforce observance of more material restrictions." Id. at 542. There, the court, in discussing the enforceability of restrictive covenants, differentiated between "the remodeling of the house adjoining them on the south" and "the building of a four-flat building ... on the property adjoining them on the north." Id. Although that case did not address the situation presented here where the plaintiff violated the restrictive coyenant she now seeks to enforce; the case remains instructive because of the distinction drawn by the supreme court between "slight" violations and "material" violations. See id. at 543 ("Why then should he be obliged to permit one neighbor to indulge in an obnoxious violation of a restrictive covenant because he has permitted another neighbor to indulge in an immaterial violation thereof?").

¶ 12. The Dufranes assert that "the distinguishing factor in the present case is that the plaintiff has constructed a building on her property that is in violation of the restriction she seeks to enforce." We disagree and conclude that the distinguishing factor is that Pietrowski's violation, as well as the other violations in the neighborhood, were slight violations, whereas the Dufranes' violation was material (i.e., a major violation). We see a distinction between building a storage shed and building a garage large enough to store motor vehicles. Therefore, we reject the Dufranes' argument that Pietrowski waived her right to enforce the restrictive covenant.

¶ 13. Next, in a related argument, the Dufranes contend that the doctrine of unclean hands prevented the circuit court from granting Pietrowski an equitable remedy once Pietrowski had violated the restrictions. See Zinda v. Krause, 191 Wis. 2d 154, 174, 528 N.W.2d 55 (Ct. App. 1995) ("One of the fundamental tenets of equity is that a person seeking equitable relief must come to the court with clean hands."). The Dufranes also argue that enforcing the restrictive covenants will lead to unjust or inequitable results because Pietrowski would be allowed to maintain a violation of the restrictions on her property while enforcing the restrictions on her neighbors. See Ward, 188 Wis. at 537 (courts "will enforce [equitable rights] in the absence of facts and circumstances making such enforcement unjust of inequitable."). We reject these arguments based on the distinction drawn above. The violation of the restrictions committed by the Dufranes was a material breach of the covenant, given the size of the building they constructed and its potential use. Any violation of the restrictions committed by Pietrowski was technical or slight. Therefore, we are satisfied that Pietrowski's breach was not so great as to result in her having "unclean hands," and that enforcing the restrictive covenants against the Dufranes will not lead to an unjust or inequitable result. This is so because of the relative difference in the type of violations— enforcement against a major violation of the restrictive covenant by a party who committed a minor violation does not result in an injustice.

¶ 14. Finally, the Dufranes argue that the numerous other violations of the restrictive covenant in the subdivision demonstrate a change in the character of the neighborhood, which constitutes an abandonment of the restrictive covenant. "Courts of equity will not enforce such restrictive covenants where the character of the neighborhood has so changed as to make it impossible to accomplish the purposes intended by such covenants." Id. at 544. "Such changed conditions may . . . result from a failure on the part of the property owners to observe or comply with the terms of the covenant." Id. The Dufranes argue that the combination of the proliferation of prohibited buildings throughout the neighborhood and the demise of the architectural control committee, which had been in charge of enforcing the restrictions, demonstrated an intent to abandon the restrictive covenant. We disagree.

¶ 15. The sheds constructed by Pietrowski and several other homeowners in the subdivision did not demonstrate a change in the character of the neighborhood which defeated the purpose of the restrictive covenants. Although the restrictive covenants do not explicitly set forth an overall purpose, nor did the trial court render any findings on the issue, it is possible to ascertain the restrictive covenants' purpose from their plain language. The Dufranes correctly argue that "[o]ne of the purposes of the restrictive covenant is to limit the number of buildings constructed on each lot." However, this is not the sole purpose. The language of the restrictions clearly place an emphasis on limiting the use of the property to single family dwellings; thereby prohibiting both multiple family dwellings and businesses.

¶ 16. Given the limitation to single family dwellings and one garage, and the prohibition of multiple family dwellings and businesses, it was reasonable for the trial court to draw a distinction between slight violations of the restrictions, such as the sheds constructed by Pietrowski and the other homeowners, and a material violation such as the two and one-half car garage constructed by the Dufranes. The sheds could not be used, nor was there any evidence that they were being used, as a second dwelling or as a place of business contrary to the purpose of the restrictive covenants. However, based on the size of the building constructed by the Dufranes, it could have been used for such a purpose. Therefore, we are satisfied that the sheds constructed by Pietrowski and the other homeowners did not defeat the purpose of the restrictive covenants by changing the character of the subdivision from a single family residential neighborhood. See Vorpahl et al. v. Gossman et al., 24 Wis. 2d 232, 238, 128 N.W.2d 430 (1964) ("The change contemplated by this rule is qualitative, i.e., a shift from a residential area to commercial."). Further, we conclude that given the purpose of the restrictions it was reasonable for the circuit court to distinguish between the sheds constructed around the neighborhood, and the garage constructed by the Dufranes.

¶ 17. Moreover, we reject the Dufranes' argument that the dissolution of the architectural control committee somehow contributes to the alleged changes in the character of the subdivision. The architectural control committee was created to ensure compliance with the restrictive covenants, but was terminated on January 1, 1965, by operation of the restrictions. Nothing in the deed's language suggested that the restrictive covenants were invalid when the architectural control committee was dissolved. Indeed, the greatest need for an architectural control committee was when the subdivision was first being developed. As the subdivision became older, with fewer houses being built, the architectural control committee was no longer necessary. Thus, the architectural control committee's dissolution does not demonstrate an intent to abandon the restrictions.

¶ 18. For all of the above stated reasons, we conclude that the circuit court properly exercised its discretion in granting Pietrowski's request for equitable relief and, accordingly, we affirm.

By the Court. — Order affirmed.

       The trial court stayed its order to raze the garage pending the outcome of this appeal.

       We do note that the record indicates the Dufranes simply used the garage to store personal property.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    In re the Commitment of Keith Alan VanBronkhorst: State of Wisconsin, Petitioner-Respondent, v. Keith Alan VanBronkhorst, Respondent-Appellant.
    Court of Appeals

      No. 00-3075.

      Submitted on briefs June 4, 2001. —
    Decided July 17, 2001.

    2001 WI App 190
    (Also reported in 633 N.W.2d 236.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Marguerite M. Moeller, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Keith Alan VanBronkhorst appeals an order revoking his supervised release as a sexually violent person under Wis. Stat. ch. 980. Van-Bronkhorst argues that: (1) he was denied due process by having his supervised release revoked based upon a rule violation not charged by the Department of Health and Family Services; and (2) the circuit court did not determine whether a rule violation that was charged warranted revocation of his supervised release. We agree. Therefore, we reverse and remand to the circuit court.

BACKGROUND

¶ 2. VanBronkhorst was adjudicated a sexually violent person on March 27, 1996, and was committed under Wis. Stat. ch. 980. He had been diagnosed as a pedophile who had a history of multiple sex offenses involving children as victims. In May 1998, Van Bronkhorst was placed on supervised release.

¶ 3. On July 21, 2000, the department filed a petition to revoke the supervised release. The petition simply stated that "on or about 07/17/00, [Van Bronkhorst] did have verbal contact with EB., a seven-year-old male child, while outside of [VanBronkhorst's] residence.This behavior is in violation of Supervised Release Rules #1, #17, #36, and #37."

¶ 4. In addition, during VanBronkhorst's revocation hearing, evidence was presented that Van-Bronkhorst attempted to initiate a relationship with a neighbor who has a child. Rule 15(i) prohibits initiating or maintaining a relationship with an adult who has minor children. The circuit court asked VanBronkhorst if he knew that one of the rules of supervised release was that he not initiate or maintain any relationship with an adult who has minor children. VanBronkhorst admitted that he did.

¶ 5. At the conclusion of the hearing, the State requested that the circuit court find that Van-Bronkhorst had violated Rules 36, 37, and 15(i). The court determined that VanBronkhorst had not violated Rule 36, but that he had minimally violated Rule 37. Rule 37 requires VanBronkhorst to remain mute and leave any situation immediately when a juvenile initiates a conversation with him.

¶ 6. The circuit court further determined that VanBronkhorst violated Rule 15(i). The court apparently revoked VanBronkhorst's supervised release based upon the rule violations and upon the grounds of public safety. See Wis. Stat. § 980.08(6m). This appeal followed.

DISCUSSION

I. Due Process

¶ 7. As an initial matter, VanBronkhorst argues that he has the right to due process protections in a revocation proceeding under Wis. Stat. ch. 980. The State concedes that he is entitled to the same due process protections afforded persons in probation and parole revocation proceedings. We agree.

¶ 8. Once the State grants probation or parole, due process protections attach to any revocation. Vitek v. Jones, 445 U.S. 480, 488 (1980). These protections are necessary to ensure that the conditional liberty granted by probation or parole is not arbitrarily abrogated. Id. at 498.

¶ 9. We see no difference between the conditional liberty interest of a person on probation or parole and the interest of a person on supervised release under Wis. Stat. ch. 980. Therefore, we conclude that procedural due process protections afforded in probation or parole revocation proceedings apply to supervised release revocation proceedings under ch. 980.

A. Rule 15 Violation

¶ 10. VanBronkhorst argues that he was denied due process when his supervised release was revoked based on a rule violation not charged by the department. He contends that the circuit court erred by basing his revocation upon a Rule 15 violation because the violation was never alleged in the petition.

¶ 11. As an initial matter, the State argues that VanBronkhorst waived his right to claim he was denied due process. The State contends that because trial counsel did not argue the due process violation at the revocation hearing, the argument is waived.

¶ 12. However, since a Rule 15 violation was not charged, trial counsel was not on notice to object or ask questions when information regarding the violation arose during the hearing. Thus, we conclude that Van Bronkhorst did not waive his right to argue that he was denied due process.

¶ 13. Wisconsin Stat. § 980.08(6m) governs petitions for revocation of supervised release and reads in part:

If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department.
The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section.

¶ 14. In State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 584, 326 N.W.2d 768 (1982), our supreme court ruled that proper notice of probation violations is a minimal due process requirement for revocation. Therefore, the same applies to supervised release revocation proceedings under Wis. Stat. § 980.08(6m).

¶ 15. Notice to comply with due process requirements must be given sufficiently in advance of scheduled court proceedings so that a defendant will have a reasonable opportunity to prepare. In re Gault, 387 U.S. 1, 33-34 (1967). There is no principle of due process more important or firmly established than notice of the specific charge so that the accused can prepare a defense. Cole v. Arkansas, 333 U.S.196, 201 (1948). The purpose of the petition for revocation is to inform the person on supervised release of the alleged violations so he or she can prepare a defense.

¶ 16. Here, VanBronkhorst was charged with violating Rules 1, 17, 36, and 37. Further, the petition specified only one incident: contact with a seven-year-old. However, the circuit court based the revocation upon a Rule 15(i) violation involving an adult and another child and upon the grounds of public safety. VanBronkhorst was not given notice of those specific charges or a factual basis. When the State asked the court to find a Rule 15(i) violation, the hearing had concluded. VanBronkhorst's chance to present, let alone prepare a defense, was lost.

¶ 17. The State contends that VanBronkhorst was given notice of the Rule 15 violation when the circuit court quoted the rule's language when questioning VanBronkhorst. While the court did in fact recite language from Rule 15, VanBronkhorst was not charged with a Rule 15 violation. He was not accused of having a relationship with an adult who has a minor child. VanBronkhorst was only charged with violating Rules 1, 17, 36, and 37. The petition was not amended before or during the hearing nor was VanBronkhorst in any other way notified that the court's questions could lead to a new basis for the revocation. Therefore, we conclude VanBronkhorst did not have notice.

B. Harmless Error

¶ 18. The State argues that if there was a due process violation, the violation was harmless because VanBronkhorst was not prejudiced. Only two people witnessed the conduct underlying the Rule 15 violation, VanBronkhorst and the person with whom he allegedly attempted to initiate or maintain a relationship. Both testified at the hearing. Thus, the State contends that no evidence exists that would change the result of the hearing.

¶ 19. Constitutional violations are generally subject to a harmless error analysis. State v. Flynn, 190 Wis. 2d 31, 54, 527 N.W.2d 343 (Ct. App. 1994). Before a constitutional error can be held harmless, a reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt. State v. Boykins, 119 Wis. 2d 272, 279, 350 N.W.2d 710 (Ct. App. 1984).

¶ 20. Had VanBronkhorst actually been charged with a Rule 15(i) violation, he would have had the opportunity to focus on that rule violation at the hearing. He would have known to fully present his side of the story and to fully question the other witness to the event. VanBronkhorst was denied that opportunity because the Rule 15 (i) violation was not alleged in the petition. We are not certain beyond a reasonable doubt that the error was harmless.

¶ 21. The State further argues that if there was a due process violation, the error was harmless because Wis. Stat. § 980.08(6m) authorizes the circuit court to revoke supervised release upon a finding that the public safety requires revocation regardless of whether a specific rule has been violated. The State contends that the court not only based the revocation on a violation of Rule 15(i), but also on the grounds of public safety. The State further contends that the court can always decide to revoke a person's supervised release if the public safety requires revocation, regardless of whether this specific allegation was contained in the petition for revocation. We disagree.

¶ 22. If the State was correct, the circuit court could revoke a person's supervised release without providing notice of the violation or a factual basis for the violation. The petition for revocation never alleged public safety as grounds for the revocation, nor did it allege the facts upon which the public safety finding was based.

¶ 23. As we have concluded, a sexually violent person on supervised release is entitled to basic due process protections. A decision to revoke supervised release without giving proper notice is a violation of due process. Therefore, we conclude that the court can only base a revocation on the grounds of public safety when the defendant has been properly noticed.

II. Proper Finding

¶ 24. Finally, VanBronkhorst argues that the circuit court did not find that a minimal violation of Rule 37 warranted revocation of supervised release. We agree.

¶ 25. The only violation that was properly noticed and proved was a Rule 37 violation. Rule 37 required VanBronkhorst to remain mute and leave any situation immediately when a juvenile initiates a conversation with him. The circuit court found that there was a minimal violation of that rule. However, the court did not determine whether that violation alone merited revocation.

¶ 26. Because the circuit court did not rule whether the violation of Rule 37 warranted revocation of VanBronkhorst's supervised release, we remand with directions to determine whether VanBronkhorst's violation of Rule 37 was itself sufficient to revoke supervised release.

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

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

       The State also filed a violation investigation report on August 10, 2000. In addition to repeating the probable cause statement, the report also alleged that VanBronkhorst had verbal contact with a three-year-old child. The report alleged that VanBronkhorst violated Rules 1,17, 36, and 37. The report also stated that VanBronkhorst asked his neighbor if she would like to come up for a cup of coffee. However, the report itself does not allege a Rule 15(i) violation, discussed below. The legal significance of this report is unclear. Neither party argues that it serves as a basis for notice.

       Wisconsin Stat. § 980.08(6m) gives the State the burden of proving by "clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked." (Emphasis added.)

       VanBronkhorst additionally argues that the term "relationship" as used in Rule 15 is impermissibly vague. We do not address this argument because our resolution of VanBronkhorst's other arguments is dispositive of the appeal. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

       For example, he could have presented evidence and arguments to show that his contact with his adult neighbor did not constitute a "relationship."


author: ANDERSON, J.

text:
    State of Wisconsin ex rel. Mark Anthony Adell, Petitioner-Appellant, v. Judy Smith, Warden, Oshkosh Correctional Institution, Respondent-Respondent.
    Court of Appeals

      No. 00-0070.

      Submitted, on briefs May 11, 2001. —
    Decided July 18, 2001.

    2001 WI App 168
    (Also reported in 633 N.W.2d 231.)

      On behalf of the petitioner-appellant, the cause was submitted on the brief of Mark Anthony Adell, pro se.

      On behalf of the respondent-respondent, the cause was submitted on the brief of Chris J. Paulsen, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, EJ., Nettesheim and Anderson, JJ.
   ANDERSON, J.

¶ 1. Mark Anthony Adell appeals a trial court order dismissing his petition for a writ of certiorari. After granting waiver of prepayment of costs and fees under Wis. Stat. § 814.29 (1999-2000), the trial court raised the issue of whether Adell's certiorari petition satisfied the requirements set forth in Wis. Stat. § 802.05(3)(b)4. This section provides that the court shall dismiss a claim without requiring an answer by the respondent if the court determines that the action fails to state a claim upon which relief may be granted. Id. The trial court dismissed Adell's petition for certiorari review after it concluded that Adell failed to state a claim upon which relief may be granted. We disagree with the trial court's conclusion. The facts in Adell's petition establish a claim for relief. We remand the matter to the trial court for proceedings consistent with this opinion.

Relevant Facts

¶ 2. In October 1999, Adell filed a challenge to his inmate record in a letter to the warden of Oshkosh Correctional Institution, Judy Smith. In his challenge, Adell complained that his prison file contained erroneous and damaging comments about his performance related to his prison work assignment. He further complained that the erroneous and damaging information had been introduced into his file in a manner inconsistent with institution policies and procedures. For these reasons, Adell asked Smith to expunge the information he deemed erroneous and damaging from the prison file.

¶ 3. Smith reviewed and denied Adell's expungement request. Adell then sought judicial review of Smith's decision. He applied for in forma pauperis status to proceed with a petition for writ of certiorari. After review, the trial court granted a waiver of prepayment of fees and costs, but then dismissed the petition pursuant to Wis. Stat. § 802.05(3)(b)4 on the grounds that the allegations in Adell's petition were "conclusory" in nature and did not establish a claim upon which relief may be granted.

Standard of Review

¶ 4. A trial court may dismiss a prisoner's cause of action if the proposed action states no claim upon which the court may grant relief. Wis. Stat. § 802.05(3)(b)4. Prior to September 1, 1998, an indigent party who stated a claim upon which relief may be granted could commence or defend an action or proceeding without paying or giving security for the fees or costs of the action or proceeding. Wis. Stat. § 814.29(l)(a), (c) (1997-98); see also State ex rel. Luedtke v. Bertrand, 220 Wis. 2d 574, 578, 583 N.W.2d 858 (Ct. App. 1998), aff'd, 226 Wis. 2d 271, 594 N.W.2d 370 (1999). On September 1, 1998, the Prisoner Litigation Reform Act (PLRA), 1997 Wis. Act 133, took effect. Under the PLRA, which addresses the payment of litigation fees and costs by prisoners, the fees and costs are no longer forgiven for indigent prisoners. Rather, a scheme is created for determining how and from what funds the prisoner will pay the fees and costs, either by payment at the time the action or proceeding is commenced or on an installment basis.

¶ 5. In Wis. Stat. § 802.05(3)(b)4, the fee waiver standard for deciding whether a proposed action states a claim is the same standard that is applied when considering a motion to dismiss in an ordinary civil case for "[flailure to state a claim upon which relief can be granted." See Wis. Stat. § 802.06(2)(a)6. In Wisconsin, a civil pleading need not define issues or state detailed facts; only "fair notice" is required. Hertlein v. Huchthausen, 133 Wis. 2d 67, 72, 393 N.W.2d 299 (Ct. App. 1986). Thus, a complaint should be dismissed as legally insufficient "only if it is quite clear that under no conditions can a plaintiff recover." Jensen v. Christensen & Lee Ins., Inc., 157 Wis. 2d 758, 763-64, 460 N.W.2d 441 (Ct. App. 1990). This principle applies especially to pro se pleadings, such as those here, because pro se complaints of prisoners must be construed liberally in determining whether stated facts give rise to a cause of action. Lewis v. Sullivan, 188 Wis. 2d 157, 164-65, 524 N.W.2d 630 (1994). Further, if the facts pleaded reveal an apparent right to recover under any legal theory, they are sufficient as a cause of action. Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 434-35, 400 N.W.2d 493 (Ct. App. 1986). The facts pleaded must be taken as true, but legal conclusions need not be accepted. Morgan v. Pa. Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979). Whether a claim for relief exists is a question of law that we determine independently. Paskiet v. Quality State Oil Co., 164 Wis. 2d 800, 805, 476 N.W.2d 871 (1991).

Analysis

¶ 6. We begin and end our analysis by determining the dispositive issue of whether Adell's petition states a claim for relief. Notice giving is the primary purpose of pleading under the rules of civil procedure adopted by the supreme court in 1976. Hertlein, 133 Wis. 2d at 72. Other functions served by pleadings under former laws, such as stating the facts and defining the issues, have been shifted to discovery and pretrial motion practice. Id. Wisconsin Stat. § 802.02 adopted "notice pleading" and is based on Federal Rule 8(a), a "liberal" rule allowing the litigants to "plead generally and discover the precise factual basis for [the] claim through equally liberal. . . discovery procedures." See Morrison v. City of Baton Rouge, 761 F.2d 242, 244 (5th Cir. 1985). Under notice pleading, a complaint or counterclaim need only give the other'party fair notice of what the claim is and the grounds upon which it rests. Hertlein, 133 Wis. 2d at 72.

¶ 7. Moreover, our supreme court has long adhered to the view that pro se prisoner complaints must be construed liberally to determine if the complaint states any facts giving rise to a cause of action. Amekbin-Rilla v. Israel, 113 Wis. 2d 514, 520, 335 N.W.2d 384 (1983). When presented with a prisoner's pro se petition, we must look to the facts stated in the document to determine whether the petitioner may be entitled to relief if the facts alleged are proved. See id.

¶ 8. Liberally construing Adell's petition, we determine that he asserts facts that, if proved, might entitle him to relief. First, Adell claims that comments in his inmate records stating he has an attitude problem are erroneous. Second, Adell claims these comments were documented in his records in a manner inconsistent with Department of Corrections (DOC) policy. Third, Adell claims that these comments have directly harmed his program review classification prospects, his potential parole prospects, and the consideration given to his future prison work assignments. Finally, Adell claims that he was denied due process "if1 his program supervisor, Sergeant Kenneth Hazen, made the negative comments in Adell's records for the purpose of retaliating against him because he had previously lodged complaints against Hazen.

¶ 9. At its core, Adell's petition asserts that he has suffered injury due to allegedly erroneous negative comments documented in his inmate records in a manner inconsistent with DOC policy. In his petition, Adell refers to and provides a copy of the relevant institution policy. The policy directs that an inmate may be counseled if at any time he is not doing his job in an acceptable manner and that if he is counseled, a counseling notation regarding his unacceptable job performance should be placed on the inmate's face/warning card. The policy does offer alternatives other than counseling in this situation, but the relevant point here is that if counseling is the chosen resolution, a notation should be made on the counseled inmate's face/warning card. Adell provides proof that the method of resolution chosen by his supervisors was counseling. (In his petition, Adell includes a November 1, 1999 letter to him from Warden Smith which confirms that Adell was counseled on October 20, 1999, regarding his attitude and performance.) Adell claims that his face/warning card does not contain any negative performance notations. He claims, and we agree, that this lack of notation on his face/warning card, if true, is inconsistent with institution policy.

¶ 10. In addition, Adell cites and provides a copy of other relevant institution policy which states that "[i]f poor job performance continues, an Inmate Performance Evaluation should reflect so. ... It is important to document poor work performance as it occurs progressively." Adell claims that Hazen's comments regarding Adell's bad attitude are not only erroneous but fall short of the "progressive documentation" that is required by institution policy. Adell also claims that Hazen's comments were improperly relied upon by the reviewing committee for Adell's security classification.

¶ 11. Adell's security classification is "medium custody." An inmate's security classification impacts his or her program review classification prospects, his or her potential parole prospects, and the consideration given to his or her future prison work assignments. Wis. Admin. Code § DOC 302.12, 302.14. Adell cites and includes a copy of his "Program Review Inmate Classification Summary," which shows that the reviewing committee gave Adell a medium custody classification despite the recommendation of a minimum custody classification from the reviewing social worker. The "Program Review Inmate Classification Summary" demonstrates that the reviewing committee, in making its medium custody recommendation, considered Adell's record of adjustment while on supervision and his performance in programs. Under § DOC 302.14, these are legitimate factors to consider when giving a security classification to an inmate. However, it follows that if the information considered is negative and erroneous, the inmate can be injured by receiving a classification more stringent than the one he or she could be found eligible for if the information considered was not negative and erroneous. We hold that Adell has alleged facts that, if true, may entitle him to some form of relief (i.e., a less stringent security classification).

By the Court — Order reversed and cause remanded.

       Wisconsin Stat. § 814.29 (1999-2000) covers security for costs, service and fees for indigents including the rules and procedures regarding a prisoner request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to prepay the fees or costs or without being required to give security for costs. Id.

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

       Under Wis. Stat. § 814.29(3)(b) (1997-98), as it existed prior to the PLRA, an inmate was liable for previously waived fees and costs if judgment was entered in favor of the opposing party. The PLRA adjusts the manner in which fees and costs are collected from the inmate's accounts.

       In the trial court's memorandum decision/order, attached to the form dismissal order, the trial court stated, "[w]hen presented with request for approval for filing a civil action, without prepayment of costs, the court must review the request for relief to see if it states a claim upon which relief can be granted." This is a slight misstatement of the two-step process governing prisoner lawsuits.
      An indigent prisoner may apply for waiver of prepayment of costs and fees in filing an action; at this first stage, the court does not evaluate the substantive merits of the prisoner's claim but only examines the submissions to determine if the prisoner has submitted all required documentation pursuant to Wis. Stat. § 814.29(lm)(a)l, (lm)(b)2 and (c)2, 801.02(7)(c) and (d), and 802.05(3)(c). If the prisoner has submitted all the required documentation, waiver of prepayment of costs and fees must be granted without thought to the merits of the claim.
      The second step occurs after this waiver process or after the prisoner pays the filing fees and costs up front. Pursuant to Wis. Stat. § 802.05(3)(b), the trial court may dismiss a prisoner's action, indigent or not, without requiring a responsive pleading if, after examining the prisoner's pleadings, the court determines that the action is frivolous, used for an improper purpose, seeks monetary damages from an immune defendant, or fails to state a claim upon which relief can be granted.

       The committee cited Wis. Admin. Code § DOC 302.14 that lists the factors that may be taken into consideration in assigning a security classification to an inmate.

       Without addressing the due process part of Adell's claim, we have determined that he alleges sufficient facts to state a claim upon which relief may be granted. We therefore choose not to address the due process issue and will leave this to the trial court. Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).


author: BROWN, PJ.

text:
    Dina Matlin, Plaintiff-Appellant, v. City of Sheboygan, Defendant-Respondent.
    Court of Appeals

      Nos. 00-2389, 00-2390.

      Submitted on briefs May 11, 2001.—

      Decided July 18, 2001.

    2001 WI App 179
    (Also reported in 634 N.W.2d 115.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Michael F. Bishop of Kopp, Arena & Bishop, S.C., of Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Charles C. Adams, assistant city attorney.
    Before Brown, PJ., Nettesheim and Snyder, JJ.
   BROWN, PJ.

¶ 1. Dina Matlin appeals from an order granting the City of Sheboygan's motion to dismiss for lack of subject matter jurisdiction to hold a hearing on raze orders issued by the City. We determine that the requirement of Wis. Stat. § 66.0413(l)(h) (1999-2000) to hold a hearing within twenty days of her application is directory, and therefore the failure to hold the hearing within that time did not terminate jurisdiction. We reverse and remand to the trial court for further proceedings consistent with this opinion.

¶ 2. On November 1, 1999, Matlin received raze orders on two properties she owns in the City of Sheboygan. On November 13, 1999, Matlin applied for temporary restraining orders (TROs) and a hearing on the reasonableness of the raze orders pursuant to Wis. Stat. § 66.0413(l)(h). The statute requires the hearing to be held within twenty days of the application. Id. The trial court granted the application and scheduled the hearing for December 15, 1999. On December 7, 1999, Matlin requested a substitution of judge under Wis. Stat. § 801.58. The trial court granted this request and adjourned the December 15 hearing pending the assignment of a new judge.

¶ 3. On December 22, 1999, the clerk of courts assigned a new judge and a scheduling conference was set for February 1, 2000. The record contains no transcript of that conference but the parties indicate in their briefs that a hearing date of May 3, 2000 was set to determine the reasonableness of the raze orders. On March 3, 2000, the City filed a motion to dismiss, claiming that twenty days had elapsed since Matlin's application and therefore the court lacked jurisdiction to hold a hearing. In her reply brief, Matlin raised issues of personal service and notice. A hearing was held on the motion to dismiss on May 2, 2000. The trial court adjourned for an evidentiary hearing on the service of the raze orders as well as the motion to dismiss. On May 30, 2000, the trial court granted the City's motion to dismiss without addressing the issues of service and notice. The trial court then granted a stay of the raze orders for 120 days pending appeal to this court. We issued a stay which remains in effect.

¶ 4. On appeal, we are faced with a single issue: whether the time limitation for holding a hearing in Wis. Stat. § 66.0413(l)(h) is directory or mandatory. If the statute is mandatory, then the lapse of twenty days without a hearing deprives the trial court of jurisdiction. State v. Rosen, 72 Wis. 2d 200, 208., 240 N.W.2d 168 (1976). Whether a court has jurisdiction is a question of law that we determine independently. State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 840, 472 N.W.2d 839 (Ct. App. 1991).

¶ 5. The exclusive remedy for challenging raze orders issued by a municipality is found in Wis. Stat. § 66.0413(l)(h): Use of the word "shall" creates a presumption that the statute is mandatory. Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978). That presumption is strengthened where the legislature uses the word "may" in the same or related sections, for such use demonstrates that "the legislature was aware of the different denotations and intended the words to have their precise meanings." Id. at 571. The City argues that while the word "may" is not used in para, (h), it is used numerous times in other paragraphs of subsec. (1) and, therefore, the presumption that "shall" is mandatory is strengthened.

(h) Restraining order. A person affected by an order issued under par. (b) may within [thirty days] apply to the circuit court for an order restraining the building inspector or other designated officer from razing the building or forever be barred. The hearing shall be held within 20 days and shall be given preference. The court shall determine whether the raze order is reasonable. ... (Emphasis added.)

¶ 6. The court in Karow, however, noted that even where "shall" and "may" are used in the same section of the statute, the former term may nonetheless be construed as directory if such a construction is "necessary to carry out the legislature's clear intent." Id. The court then applied the following factors to determine whether time limitations should be considered mandatory or directory: (1) the omission of a prohibition or a penalty, (2) the consequences resulting from one construction or the other, (3) the nature of the statute, the evil to be remedied, and the general object sought to be accomplished by the legislature, and (4) whether the failure to act within the time limit works an injury or wrong. Id. at 572. We agree with Matlin that when we apply these factors to the case before us, we must conclude that the statutory time limit for holding a hearing on a raze order is directory.

¶ 7. Prior case law has established that the purpose of the raze statute is to protect the public from exposure to the evils caused by buildings which have seriously deteriorated. City of Appleton v. Brunsch- weiler, 52 Wis. 2d 303, 306, 190 N.W.2d 545 (1971). To effectuate this purpose, the statute makes repairs presumptively unreasonable beyond fifty percent of the assessed value and declares such structures public nuisances. Wis. Stat. § 66.0413(l)(c), (k). Section 66.0413(l)(h) is the exclusive remedy for an owner by which he or she may contest the reasonableness of the orders, but the owner has only thirty days to pursue it. Brunschweiler, 52 Wis. 2d at 307. An owner who fails to pursue this remedy within that time forfeits his or her right to a judicial hearing. Gehr v. City of Sheboygan, 81 Wis. 2d 117, 124, 260 N.W.2d 30 (1977).

¶ 8. With the purpose of the statute in mind, we address the Karow factors in order. First, there is no specific penalty provided for failure to adhere to the time provision for a hearing. The legislature could have provided one, but instead placed a penalty on the owner for failure to petition the court for a hearing within thirty days. As we noted, an owner who fails to petition the court within thirty days is forever barred. Wis. Stat. § 66.0413(l)(h). On the other hand, compliance with that time provision confers jurisdiction on the trial court even without prior service on the City's representative. Berkoff v. Dep't of Bldg. Inspection & Safety Eng'g of the City of Milwaukee, 47 Wis. 2d 215, 217-18, 177 N.W.2d 142 (1970). This is an exception to customary motion practice that recognizes the special circumstances of razing a building by administrative fiat. Id. at 218. Because there is no question in this case that Matlin's petition was timely filed, we are not inclined to penalize her by the failure to hold a hearing in the absence of an express legislative intent to do so.

¶ 9. We now explore the consequences resulting from one construction or another. The primary consequence resulting from a mandatory construction of the twenty-day time limit is that Matlin will suffer complete loss of her property by governmental action without a hearing. It would allow a building inspector's initial determination of the building's condition to become final and binding on the owner, without the reasonableness of that determination being tested in court. This is a power which we think the legislature did not intend to give to the City at the early stages of a raze. Instead, raze orders are simply administrative determinations that initiate a hearing process through the state court system. See Devines v. Maier, 728 F.2d 876, 885 (7th Cir. 1984).

¶ 10. On the other hand, a directory construction of the time provision would more effectively balance the competing interests at stake. The interest of the City and public in preventing harm from dilapidated buildings is adequately served by the initial raze order. This triggers the events which may lead to the repair or removal of the dangerous buildings. The interests of the owner are likewise protected by adherence to basic principles of due process, requiring the City to prove its compliance with the statutory prerequisites of Wis. Stat. § 66.0413 for issuing raze orders. Certainly this is a desirable result, especially when the owner in this case has fulfilled every obligation imposed upon her for petitioning the court for a hearing in the first instance. Because the same considerations may also be viewed as the "objects sought to be accomplished" by the statute, that factor of the Karow analysis also favors a directory construction in this case. See F.T. v. State, 150 Wis. 2d 216, 227, 441 N.W.2d 322 (Ct. App. 1989).

¶ 11. In Karow, the court said that a time limit may be construed as directory when allowing something to be done after the time prescribed would not result in an injury. Karow, 82 Wis. 2d at 572. In this case, the City argues the public is injured by a directory construction because it results in prolonged public exposure to the evils caused by deteriorated buildings. The City fails to see that the directive to have the hearing within twenty days is as much for the owner's benefit as it is for the City's. While the purpose of the statute is to address dangerous buildings, the purpose of the hearing is also to give owners a meaningful opportunity to be heard in an expeditious manner. It is this due process concern that drives the decision in Rosen upon which the City relies.

¶ 12. In Rosen, an automobile owner challenged the State's forfeiture action for failure to set a hearing within the statutory time limit. Rosen, 72 Wis. 2d at 203. The court determined that the loss of the use of an automobile was considered to be the type of injury warranting interpretation of the statutory time limit as mandatory. Id. at 208. The basis for the opinion was clearly the interests of the "possibly innocent owner" which should be protected by strict compliance with procedural safeguards. Id. Similarly, in Karow, the delay in a hearing worked an injury to an employee suspended without pay. Karow, 82 Wis. 2d at 573. The court concluded that the statutory time limit was therefore mandatory. Id.

¶ 13. In this case, when we appropriately focus on the potential serious injury to the owner if she is not afforded an opportunity to be heard, we can only conclude that the statute is directory. We are convinced that allowing the hearing to proceed after lapse of the time period will protect the interests of the owner without significant risk of injury to the public. The correctness of this position is underscored by the general rule of liberal construction for procedural statutes in order to permit a determination upon the merits of the controversy. Rosen, 72 Wis. 2d at 204-05.

¶ 14. ■ Nevertheless, the City argues that Matlin, through her own actions, lost the opportunity to be heard. At the time of the hearing on the motion for judicial substitution, the City notes, it objected to any waiver of the twenty-day requirement. This should have given notice to Matlin, the City posits, that she needed to move to protect her interests. The City further points out that at the scheduling conferences, Matlin acquiesced to the dates set for hearings even though the dates exceeded the time limit. We fail to see, however, how any of these actions by Matlin put her at fault for purposes of the statutory requirements imposed upon her for protecting her interests. She timely filed her application for a hearing, timely filed her request for judicial substitution and then accepted the hearing dates imposed upon her by the court. She had no responsibility for assigning a hearing date; any delay was caused by the clerk of courts. While we appreciate the pressures and constraints of a busy court calendar, the fact remains that the statute directs the court to give preference in its schedule for the hearing. Regardless of Matlin1 s motivation in requesting judicial substitution, there is no fault on her part for the failure of the hearing to take place within twenty days of the application. See 3 Norman J. Singer, Sutherland Statutory Construction § 57.19 (5th ed. 1992) (time provisions are often found to be directory where a mandatory construction might do injury to persons not at fault).

¶ 15. In conclusion, we determine that the statutory time limit for holding a hearing to determine the reasonableness of raze orders is directory. Under the statute, the trial court shall endeavor to hold the hearing within twenty days of the application in order to balance the needs of the public for safety and the right of the owner to be heard. Where, as here, there is a timely request for substitution that increases the time requirements, the trial court shall schedule the hearing at the earliest convenient time. The order granting the motion to dismiss is reversed and we remand this matter for proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded.

       The statute for razing buildings was recently reorganized by 1999 Wis. Act 150 §§ 134-49. Former Wis. Stat. § 66.05(3) (1997-98) is now contained in Wis. Stat. § 66.0413(l)(h). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       These separate cases, No. 00-2389 and No. 00-2390, were consolidated by the trial court.

       Matlin does not raise the issues of personal service and notice on appeal.


author: NETTESHEIM, J.

text:
    Charles H. Smyser and Smyser and Associates, Inc., Plaintiffs-Appellants, v. Western Star Trucks Corp., Western Star Trucks Sales, Inc. and Racine Truck & Equipment Corp., Defendants-Respondents.
    Court of Appeals

      No. 00-2482.

      Submitted on briefs June 6, 2001. —
    Decided July 18, 2001.

    2001 WI App 180
    (Also reported in 634 N.W.2d 134.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gary W. Thompson of Thompson Law Offices, S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Winthrop B. Reed, III of Lewis, Rice & Fingersh, L.C. of St. Louis, Missouri, and Michael J. Jassak of Habush, Habush, Davis & Rottier, S.C. of Racine.
    Before Nettesheim, Anderson and Snyder, JJ.

       Petition to review denied 10-23-01.

   NETTESHEIM, J.

¶ 1. The issues on appeal are whether a consumer may invoke the Lemon Law or revoke acceptance of a motor vehicle under the Uniform Commercial Code (UCC) after the consumer has surrendered possession and title of the vehicle to the dealer and the vehicle has been sold to a third party. Like the trial court, we hold that the remedies of the Lemon Law and the UCC are not available in such a situation. Consequently, we affirm the summary judgment dismissing the claims of Charles H. Smyser and Smyser and Associates, Inc. (Smyser) against Western Star Trucks Corp., Western Star Trucks Sales, Inc. (Western Star) and Racine Truck & Equipment, Corp. (Racine Truck).

FACTS

¶ 2. The relevant facts are not in dispute. On January 31, 1997, Smyser purchased a new 1997 Western Star truck from Racine Truck, a Western Star dealer. The purchase price was $86,496.39. Smyser financed $82,962.42 of the purchase price through Orix Credit Alliance, Inc. (Orix). As the lienholder, Orix retained possession of the title to the vehicle. The vehicle was covered by a warranty provided by Western Star.

¶ 3. Almost immediately, Smyser experienced vibration problems with the vehicle. He brought it in for attempted repairs at various Western Star dealers, including Racine Truck, but the problem persisted. Despite these attempts to repair the vehicle, Western Star does not dispute that the nonconformity continued and the vehicle is a "lemon" under the Lemon Law. See Wis. Stat. § 218.0171(l)(h), (2)(a) (1999-2000).

¶ 4. On June 19, 1998, Smyser informed Glenn Long, Western Star's manufacturing representative, that he was not going to make future loan payments on the vehicle. Smyser similarly advised Orix, his lender. Orix responded by advising Smyser to surrender the vehicle to Racine Truck. Smyser then spoke with Tim Miles, Racine Truck's manager, who agreed that Racine Truck would take back the vehicle. Accordingly, on June 22,1998, Smyser drove the truck to Racine Truck, parked it, gave the keys to a Racine Truck salesman, and signed a power of attorney authorizing Racine Truck to transfer his interest in the vehicle. Racine Truck then obtained clear title by paying Orix $65,000, the amount of Smyser's loan balance. A few days later, Racine Truck sold the vehicle to a third party.

¶ 5. Some ten months later, Smyser wrote to Western Star seeking monetary relief under the Lemon Law in the amount of $41,019.26. Western Star rejected Smyser's claim. Smyser responded with this lawsuit against Western Star and Racine Truck alleging various causes of action. Relevant to this appeal, Smyser's complaint alleged a Lemon Law claim against Western Star and revocation of his acceptance of the vehicle under the UCC against Western Star and Racine Truck.

' ¶ 6. Western Star and Racine Truck moved for summary judgment. Following a hearing and after reviewing the parties' written briefs, the trial court issued a written decision granting the motion for summary judgment. The trial court determined that Western Star had made a reasonable attempt to repair the vehicle but the nonconformity had not been repaired pursuant to Wis. Stat. § 218.0171(2)(a) and (b). However, because Smyser had previously surrendered the vehicle and the title to Racine Truck and the vehicle had been sold to a third party, the court concluded that Smyser could not obtain relief under the Lemon Law or the UCC. Smyser appeals.

STANDARD OF REVIEW

¶ 7. This court reviews decisions on summary judgment de novo. When reviewing a summary judgment, we follow the same methodology as the trial court. That methodology has been described many times, and we need not repeat it here in detail. Vultaggio v. Gen. Motors Corp., 145 Wis. 2d 874, 881, 429 N.W.2d 93 (Ct. App. 1988). Suffice it to say that we review decisions on summary judgment de novo. Id. In addition, Smyser's arguments require that we apply the relevant provisions of the Lemon Law and the UCC to the facts of this case. That exercise also presents a question of law that we review de novo. See Tomczak v. Bailey, 218 Wis. 2d 245, 252, 578 N.W.2d 166 (1998). Despite our de novo standard of review, we nonetheless value the trial court's decision on the issues. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993).

DISCUSSION

1. Lemon Law

¶ 8. Smyser asserted claims under Wis. Stat. § 218.0171(2)(a) and (b) of the Lemon Law. Section 218.0171 (2)(a) obligates a manufacturer to repair a nonconformity covered by a warranty under certain conditions. Section 218.0171(2)(b) provides that the consumer may obtain a replacement vehicle or a refund and related costs where, after the manufacturer's reasonable attempt to repair, the nonconformity is not repaired. To receive a replacement vehicle or a refund, the consumer must offer to transfer the title of the vehicle to the manufacturer and, upon the manufacturer providing the replacement vehicle or the refund, the consumer must deliver the vehicle and the title to the manufacturer. Section 218.0171(2)(c).

¶ 9. In Vultaggio, we explained the differences between these two subsections:

G.M. argues that allowing consumers to bring a claim under subsec. (2) (a) of the statute would render subsec. (2)(b) superfluous. We disagree. Subsection (2)(b) contains a series of conditions which, if satisfied, entitle the consumer to the remedies of refund or replacement. These remedies are unavailable to violations of subsec. (2)(a). In this manner, subsecs. (2)(a) and (2)(b) are best viewed as addressed to different obligations of the manufacturer: a duty to repair a defective vehicle, in subsec. (a), and in subsec. (b), a duty to replace or refund the cost of a vehicle which is subject to an inordinate amount of repair. With their different requirements and remedies, subsec. (2) (a) does not render subsec. (2)(b) superfluous.
Subsection (2)(a) protects the consumer from those instances in which the consumer is unable to establish the "reasonable attempt to repair" necessary under sec. 218.015(2)(b), Stats., but can show that the dealer has not, cannot, or will not repair a nonconformity brought to its attention during the warranty period.

Vultaggio, 145 Wis. 2d at 891 (emphasis added).

¶ 10. We further addressed Vultaggio in Dussault v. Chrysler Corp., 229 Wis. 2d 296, 600 N.W.2d 6 (Ct. App. 1999). There, as here, the consumer alleged Lemon Law claims under both Wis. Stat. § 218.0171(2)(a) and (2)(b). We rejected the § 218.0171(2)(a) claim because the manufacturer had made a "reasonable attempt to repair" under § 218.0171(2)(b). Dussault, 229 Wis. 2d at 308. We said:

Here, Dussault alleged in her complaint that Chrysler had been offered a "reasonable attempt to repair" the vehicle because it had not been fixed after thirty days or four attempts. See § 218.015(l)(h), Stats. Chrysler conceded this fact. Therefore, there is no dispute that Dussault established a "reasonable attempt to répair." As a consequence, because a para. (2) (a) remedy is only intended for a "consumer [who] is ' unable to establish the 'reasonable attempt to repair,'" Vultaggio, 145 Wis. 2d at 891, 429 N.W.2d at 99, Dussault has no claim under para. (2)(a).

Dussault, 229 Wis. 2d at 308.

¶ 11. The undisputed summary judgment evidence in this case supports the trial court's determination that although Western Star could not remedy the nonconformity, it did make a reasonable attempt to repair the vehicle pursuant to Wis. Stat. § 218.0171(2)(b). In fact, Smyser does not contend otherwise. As such, Vultaggio and Dussault bar Smyser's claim under subsec. (2)(a).

¶ 12. Next, we address Smyser's claim for a refund and related expenses under Wis. Stat. § 218.0171(2)(b). As our prior discussion reveals, in order to receive a refund.or a replacement vehicle, the consumer must first offer to transfer title to the vehicle back to the manufacturer. Then, upon the manufacturer providing the replacement vehicle or the refund, the consumer must deliver the vehicle and the title to the manufacturer. Section 218.0171(2)(c). The undisputed evidence establishes that Smyser could not have satisfied either of these requirements at the time he made his Lemon Law claim since he had previously surrendered the vehicle and the title to Racine Truck. Smyser did not take these actions under the auspices of the Lemon Law. To the contrary, he did not invoke the Lemon Law until some ten months later, long after Racine Truck had sold the vehicle to a third party.

¶ 13. Smyser argues that it makes no difference that he surrendered the vehicle and the title before made his refund demand. In support, he notes that the Lemon Law is a remedial statute that should be liberally construed to protect consumers from warranty abuses by motor vehicle manufacturers. See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978-82, 542 N.W.2d 148 (1996). We recognize that the Lemon Law is the result of past warranty abuses against consumers by motor vehicle manufacturers. But, despite its remedial purpose in favor of consumers, the Lemon Law nonetheless places certain duties on consumers who seek its remedies. Among these duties is the obligation to deliver the vehicle and the title to the manufacturer when the consumer seeks a refund or a replacement vehicle. Wis. Stat. § 218.0171(2)(c).

¶ 14. These consumer obligations are stated in clear and unambiguous terms, particularly as to the timing of the delivery of the vehicle and the title. The statute says, "When the manufacturer provides the new motor vehicle or refund, the consumer shall return the motor vehicle .. . and provide ... the certificate of title .. . Id. (emphasis added). This language signals that the legislature viewed the performance of these mutual obligations as a quid pro quo which would occur concurrently, or nearly so. But that scenario could not occur in this case because, long before he made any claim under the Lemon Law, Smyser had surrendered his possession and interest in the vehicle to Racine Truck and the vehicle was then sold to a third party.

¶ 15. Smyser would have us rewrite these clear and unambiguous terms of the Lemon Law simply because the law is remedial in favor of consumers. We cannot do that. We agree with the statement of the Seventh Circuit Court of Appeals when construing Wisconsin's Lemon Law in Bushendorf v. Freightliner Corp., 13 F.3d 1024 (7th Cir. 1993):

There is no presumption that when a legislature legislates against some abuse, such as the sale of "lemons" without proper disclosure, it means to resolve all difficult questions in favor of liability, thus disregarding every value other than that of providing remedies for injuries and every interest other than that of prospective victims. Remedial statutes like other statutes are typically compromises, and a court would upset the compromise if it nudged such a statute closer to the victim side of the line than the words and history and other indications of the statute's meaning pointed.

Id. at 1026 (citations omitted).

¶ 16. In summary, Smyser was no longer a consumer under the Lemon Law when he registered his Lemon Law claim. We uphold the trial court's rejection of Smyser's claim under Wis. Stat. § 218.0171(2)(b).

2. Uniform Commercial Code

¶ 17. Smyser also looks to the UCC for relief. He contends that his delivery of the vehicle and the title to Racine Truck constituted a revocation of his acceptance of the vehicle pursuant to Wis. Stat. § 402.608. We reject this argument for essentially the same reasons we have rejected Smyser's Lemon Law claim.

¶ 18. Wisconsin Stat. § 402.608(1) recognizes a buyer's right to revoke acceptance of goods "whose nonconformity substantially impairs its value." Section 402.608(2) provides that revocation of acceptance must occur "within a reasonable time after the buyer discovers or should have discovered [the nonconformity] .... It is not effective until the buyer notifies the seller of it." Section 402.608(3) provides that such a buyer "has the same rights and duties with regard to the goods involved as if the buyer had rejected them." Wisconsin Stat. § 402.602(2)(b) obligates a buyer who has rejected goods to "hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them." Section 402.602(2)(a) of this statute provides that "[ajfter rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller."

¶ 19. We have previously noted that Smyser made no legal claims against Western Star until some ten months after he had delivered the vehicle and the title to Racine Truck. As a result, the vehicle was sold to a third party. Given these facts, it is apparent that Smyser did not hold the vehicle for Western Star as a rejected commodity under the UCC. Instead, by using the vehicle for nearly a year and a half and by then transferring the title and possession, Smyser was signaling his continuing acceptance, not revocation of that acceptance, of the vehicle. Smyser's attempt to revoke his acceptance nearly two years after delivery of the vehicle and after he engaged in conduct confirming his ownership of the vehicle stands the revocation of acceptance provisions of Wis. Stat. § 402.608 on its head.

¶ 20. As with Smyser's Lemon Law claim, the revocation of acceptance and related provisions of the UCC contemplate congruent actions by the buyer and the seller. That did not occur here.

CONCLUSION

¶ 21. We uphold the trial court's summary judgment ruling dismissing Smyser's claims under the Lemon Law and the UCC.

By the Court. — Order affirmed.

       At the time this case was litigated in the trial court, the Lemon Law was numbered Wis. Stat. § 218.015 (1997-98). The statute was later renumbered to the current Wis. Stat. § 218.0171. We use the current numbering in this opinion. All references to the Wisconsin Statutes are therefore to the 1999-2000 version.

       For purposes of this opinion, we treat Smyser's assignment of his interest in the vehicle as the equivalent of delivering the title as contemplated by Wis. Stat. § 218.0171(2)(c).

       These calculations included the net trade-in value of the vehicle ($13,037.58), Smyser's finance charges ($27,664), tires and repairs ($1642.48), less an allowance for use of the vehicle before the defect was reported ($1324.80).

       Wisoonsin'Stat. § 218.0171(2)(á) provides:
      If a new motor vehicle does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the motor vehicle lessor or any of the manufacturer's authorized motor vehicle dealers and makes the motor vehicle available for repair before the expiration of the warranty or one year after first delivery of the motor vehicle to a consumer, whichever is sooner, the nonconformity shall be repaired.

       Wisconsin Stat. § 218.0171(2)(b) provides in relevant part:
      (b) 1. If after a reasonable attempt to repair the nonconformity is not repaired, the manufacturer shall carry out the requirement under subd. 2. or 3., whichever is appropriate.
      2. At the direction of a consumer ... do one of the following:
      a. Accept return of the motor vehicle and replace the motor vehicle with a comparable new motor vehicle and refund any collateral costs.
      b. Accept return of the motor vehicle and refund to the consumer .. . the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use.

       Wisconsin Stat. § 218.0171(2)(c) provides in relevant part:

        To receive a comparable new motor vehicle or a refund due under par. (b)l. or 2., a consumer . .. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motor vehicle or refund. When the manufacturer provides the new motor vehicle or refund, the consumer shall return the motor vehicle having the nonconformity to the manufacturer and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer.

       Our holding renders moot Smyser's further argument that, at a minimum, an issue of fact exists as to whether Racine Truck was acting as Western Star's agent when it accepted the return of Smyser's vehicle. If Smyser could not comply with the requirements of the Lemon Law when he made his claim, it makes no difference that Racine Truck was acting as Western Star's agent.
      Smyser further argues that in Hartlaub v. Coachmen Industries, Inc., 143 Wis. 2d 791, 422 N.W.2d 869 (Ct. App. 1988), we allowed Lemon Law recovery where the consumer had previously sold the vehicle. True, we observed in the recital of the facts that the consumer had sold the vehicle. Id. at 795. However, that was the extent of our discussion on that point. The manufacturer never raised the prior sale as a defense to the Lemon Law claim. Instead, the issues on appeal were whether the Lemon Law applied where the consumer accepted the vehicle after repair of the nonconformities and whether certain defects constituted nonconformities. Id. at 797. In short, Hart-laub did not address the issue raised here.

       While alleging revocation of his acceptance pursuant to Wis. Stat. § 402.608, Smyser's complaint does not identify the remedy he sought under the UCC. We assume his claim invoked Wis. Stat. § 402.711(1) which permits the buyer to seek certain damages following cancellation of the transaction based on justifiable revocation of acceptance.

       Actually, the letters of April 15, 1999, and May 3, 1999, from Smyser's attorney to Western Star asserted only a claim under the Lemon Law. The letters made no mention of a claim under the UCC. The first mention of the UCC was in Smyser's complaint in this action. Nonetheless, we will construe the letters as asserting a claim under the UCC.