author: BROWN, J.

text:
    Town of Delafield, Plaintiff-Respondent, v. Eric Winkelman and Christine Winkelman, Defendants-Appellants.
    Court of Appeals

      No. 02-0979.

      Oral argument February 12, 2003.

    Decided April 2, 2003.

    2003 WI App 92
    (Also reported in 663 N.W.2d 324.)

      On behalf of the defendants-appellants, there were briefs and oral argument by James W. Hammes of Cramer, Multhauf & Hammes, LLP of Waukesha.
    On behalf of the plaintiff-respondent, there was a brief submitted by H. Stanley Riffle and Julie A. Aqua-via of Arenz, Molter, Macy & Riffle, S.C. of Waukesha. There was oral argument by H. Stanley Riffle.

    Before Brown, Anderson and Snyder, JJ.

       Petition to review granted 9-12-03.

   BROWN, J.

¶ 1. In this state, if a governmental entity is faced with a zoning ordinance violation, it may seek to penalize the violator by court-ordered forfeitures or it may seek equitable relief such as an injunction or an abatement action. But if the governmental entity seeks such equitable relief, the violator may request that the circuit court decline to grant the equitable relief based upon equitable reasons on the violator's behalf. So said our supreme court in Forest County v. Goode, 219 Wis. 2d 654, 656-57, 579 N.W.2d 715 (1998). Thus, the law is that a landowner may contest whether he or she is in violation and, even if so found, can further contest its enforcement. The law appears to allow the violator "two kicks at the cat," once to defend against the claim that there is a violation and, second, to defend against enforcement of a sanction for that violation. While we question the wisdom of such a rule, we must adhere to it. Goode applies to the instant case and we must reverse the circuit court's belief that if separate litigation has previously determined that there was a violation, it is the law of the case and the court has no power to refuse to enforce a sanction for that violation.

¶ 2. Eric and Christine Winkelman own a lot containing two houses in the Town of Delafield. The Winkelmans use one of the two homes on their lot as their own residence and the other home is a rental unit. Both of the homes are considered nonconforming under the Town's zoning code. The Winkelmans' property is located in a residential zoning district, which allows for single-family residences. The code's site regulations further provide that no more than one principal building or structure may be allowed on a lot in such a district, with certain exceptions inapplicable to this case.

¶ 3. In 1991, the Winkelmans obtained a building permit for interior remodeling of the two homes. After construction began, the Town's building inspector discovered that the remodeling involved work on a legal, nonconforming structure and placed a stop-work order on the project. As a result of the stop-work order, the Winkelmans applied for variances from the Town's zoning code. The Winkelmans' request for the variances was granted in part, but the zoning board placed certain conditions on the approval of the variances. One of the conditions required the Winkelmans to remove the rental residence from the property within three years of the date of the board's decision, which was dated September 30, 1994.

¶ 4. The Winkelmans sought certiorari review of the board's decision on the variance, claiming that the board lacked the authority to impose the condition. The circuit court upheld the decision and the Winkelmans did not appeal. The Town then extended the deadline for removal of the rental residence from March 1998 to April 1999.

¶ 5. As of April 1999, the Winkelmans had not yet removed the rental residence from their property. To enforce the condition of the variance, the board brought a motion entitled Motion for Further Relief requesting that the certiorari court order the Winkelmans to raze the house or the Town be allowed to do so. The certiorari court granted the board's motion. We reversed, holding that the board needed to obtain jurisdiction over the Winkelmans for the enforcement action by serving a summons and complaint or by serving an appropriate original writ. Winkelman v. Town of Delafield, 2000 WI App 254, ¶ 1, 239 Wis. 2d 542, 620 N.W.2d 438 CWinkelman I).

¶ 6. The Town then filed an original complaint in the circuit court seeking issuance of an order directing the Winkelmans to remove the rental residence from their property immediately and seeking fines for the Winkelmans failure to do so. In the Winkelmans' answer to the complaint, the Winkelmans raised the doctrine of estoppel as an affirmative defense. The Town then moved for summary judgment. The Winkel-mans filed a memorandum and affidavit in opposition to the motion for summary judgment, contending that a number of equitable factors existed which, if considered by the circuit court, would result in the denial of the Town's requested order to raze.

¶ 7. The circuit court orally granted the Town's motion for summary judgment, concluding that it had no authority to weigh the competing equities in the case. The court stated:

I have no power to change the — actually, the position taken by the Town which was upheld by Judge Mawd-sley, not appealed on that issue. There is now a judgment entered that approves of the variance .... I have no alternative hut to grant this motion for summary judgment. .. and enter an Order allowing the Town to raze the building if the Winkelmans do not.

The court subsequently imposed a forfeiture of $25 per day from April 8,1999, until January 31, 2002. The oral ruling and the forfeiture were then reduced to a written summary judgment. The Winkelmans appeal the decision granting summary judgment.

¶ 8. We review a circuit court's grant or denial of summary judgment de novo. Waters v. U.S. Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985). [Slummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995). We will reverse a decision granting summary judgment if the circuit court incorrectly decided legal issues or material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993).

¶ 9. On appeal, the Winkelmans submit that the circuit court erred in concluding that it did not retain the power to consider the equitable arguments the Winkelmans made in response to the Town's request for the issuance of a raze order. The Winkelmans assert that the Town is seeking relief in accordance with the provisions of Wis. Stat. § 62.23(8) (2001-02) and pursuant to Goode and Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485 (Lake Bluff TV), review denied, 2002 WI 23, 250 Wis. 2d 556, 643 N.W.2d 93 (Wis. Jan. 31, 2002) (No. 00-1958), we must remand the matter to the circuit court for analysis of the equitable considerations underpinning the grant of a raze order.

¶ 10. In Goode, our supreme court considered whether a circuit court retains the equitable power to deny injunctive relief after a zoning ordinance violation has been proven. Goode, 219 Wis. 2d at 656. There, the County initiated an enforcement action pursuant to Wis. Stat. § 59.69(11) against a landowner who had constructed a home in violation of a county zoning ordinance and who subsequently had been denied a variance from the ordinance. Goode, 219 Wis. 2d at 656-59. The County requested the assessment of forfeitures and an order compelling the landowner to relocate his house to comply with a setback requirement contained in the ordinance. Id. at 656. The County had asserted that the statute did not give circuit courts discretion over whether to require compliance with zoning ordinances. Id. at 663. In the County's view, once a violation was proven, the court had no choice but to grant the relief sought pursuant to § 59.69(11). Goode, 219 Wis. 2d at 663-64.

¶ 11. The supreme court, however, concluded that when the legislature adopted Wis. Stat. § 59.69(11), giving the County or an owner of real estate within the district affected by the zoning regulation the option of asking a circuit court sitting in equity for injunctive relief as a remedy for a zoning ordinance violation, it did not intend to eliminate the traditional equitable powers of the court through § 59.69(11). Goode, 219 Wis. 2d at 657. Accordingly, the court held that when a circuit court is asked to grant injunctive relief for a proven zoning ordinance violation, § 59.69(11) does not eliminate the circuit court's equitable power to deny injunctive relief in a particular case. Goode, 219 Wis. 2d at 657. The court then remanded the matter to the trial court to weigh the equitable considerations presented in the case. Id.

¶ 12. In the sequence of Lake Bluff cases, we considered whether Goode's analysis applies with equal force when relief is sought pursuant to Wis. Stat. § 62.23(8). See Lake Bluff TV, 2001 WI App 150 at ¶¶ 7, 9; Lake Bluff Housing Partners v. City of South Milwaukee, 222 Wis. 2d 222, 231-32, 588 N.W.2d 45 (Ct. App. 1998) (Lake Bluff III)- There, Lake Bluff Housing Partners purchased land with the intention of building multi-family housing; however, the City of South Milwaukee later rezoned the land for single-family dwellings and refused to issue building permits to Lake Bluff. Lake Bluff IV, 2001 WI App 150 at ¶ 3. Lake Bluff sued the City, contending that it had vested rights in the prior zoning classification. Id. at ¶¶ 3, 4. Lake Bluff was successful in the lower courts; however, after the City issued the building permits and Lake Bluff had begun construction, our supreme court reversed. Id. at ¶¶ 4-5.

¶ 13. Subsequently, Lake Bluff initiated a declaratory judgment action, arguing that the City should be equitably estopped from initiating an enforcement action pursuant to Wis. Stat. § 62.23(8) and seeking an order that would allow it both to revoke the building permits it had issued to Lake Bluff and to have the dwellings Lake Bluff had begun constructing razed. Lake Bluff III, 222 Wis. 2d at 226-27. We determined that the City was not estopped from revoking the building permits and ordering the property razed. Id. at 224. We also concluded, however, that while Lake Bluff had already contested the denial of the building permits and lost on legal grounds, it had not had the opportunity to defend itself in equity as mandated by Goode. See Lake Bluff III, 222 Wis. 2d at 231-32. We therefore remanded the case to the trial court for a determination as to whether Goode's analysis of Wis. Stat. § 59.69(11) applied to an analysis of Wis. Stat. § 62.23(8), and, if so, whether "there [were] compelling equitable reasons" which would make Lake Bluff one of "those rare cases" where the requested order of abatement should not be issued. Lake Bluff III, 222 Wis. 2d at 231-32 (citations omitted). On appeal after the remand, we held that the trial court had properly weighed the equitable considerations from Goode and affirmed the circuit court judgment ordering Lake Bluff to raze and remove its buildings. Lake Bluff IV, 2001 WI App 150 at ¶ 1.

¶ 14. Goode and Lake Bluff IV teach us that where a governmental entity exercises its authority pursuant to either Wis. Stat. § 59.69(11) or Wis. Stat. § 62.23(8) after a zoning ordinance violation has been proven and seeks to enforce the zoning ordinance through an injunction or abatement, the reviewing court retains the power to deny the relief sought and the property owner can defend himself or herself in equity. Here, although the certiorari court already determined that the board's attachment of a condition to the variance is reasonable and the Winkelmans did not appeal that decision, that matter, unlike the one before us, was not an enforcement action on the part of the Town and the court did not consider the equities arising in the case.

¶ 15. In Winkelman I, we noted that in seeking to ensure the razing or removal of the second residence, the Town had two options: the Town could initiate a proceeding before the board to revoke the variance and, therefore, require the residential structure to be brought into compliance with the zoning ordinances, or the Town could bring an action to seek enforcement of the raze condition or fines for refusing to raze the house. Winkelman I, 2000 WI App 254 at ¶¶ 10-11. The Town elected the latter and has now initiated a separate action against the Winkelmans seeking to enforce the order of the certiorari court upholding the variance condition. While we do question the prudence of allowing the Winkelmans to have another opportunity to challenge the variance condition under these circumstances, it appears that because this is an enforcement action utilizing an equitable remedy, Goode and Lake Bluff TV dictate that we remand the case to the circuit court to balance the competing equities.

¶ 16. The Town contends that Goode and Lake Bluff IV do not control the disposition of this case primarily for three reasons. First, the Town asserts that Goode only applies to cases where the governmental entity asks for equitable relief. The Town claims that it is not seeking equitable relief and all it is in fact doing is seeking enforcement of the condition attached to the variance requiring the Winkelmans to tear down the second residence on their property. The Winkelmans, however, refused to raze the structure. The government now wants to step in and order the razing of the structure to take place. A raze order is an abatement order. See Lake Bluff IV, 2001WI App 150 at ¶ 8 (using the terms "abatement" and "raze order" interchangeably). It is therefore equitable in nature. See State ex rel. Miller v. Anthony, 647 N.E.2d 1368, 1371 (Ohio 1995) (defining an abatement action as "not a common law action, but a summary proceeding more in the nature of a suit in equity").

¶ 17. In its next argument, the Town attempts to distinguish this case from Goode. The Town argues that "[i]n [Goode], which the Winkelmans rely on, the County sought a forfeiture and an order directing the property owner to move his residence so that it complied with the shore setback provisions of the county ordinance." The Town contends that here, unlike in Goode, "the town asked that a forfeiture be assessed for the alleged violations and that an order be issued directing the Winkelmans to raze the structure in compliance with the terms of the variance . . . It appears that the Town is arguing that these cases are distinguishable because in Goode, the County requested an order to move a residence to comply with an existing order and, here, the Town seeks an order .to remove an existing residence so as to comply with an existing variance. However, the distinction between seeking an order to move an existing residence so as to comply with an existing order and seeking an order to remove an existing residence so as to comply with an existing variance is immaterial. Both are enforcement actions.

¶ 18. Next, at oral argument, the Town contended that unlike the property owners in Goode and Lake Bluff TV, who never had the opportunity to argue the equities prior to their appeals, the Winkelmans already made equitable arguments during the certiorari review action and thus any equitable claim is precluded. The Town observed that certiorari review has four prongs and is limited to whether the agency: (1) kept within its jurisdiction, (2) acted according to law, (3) did not act arbitrarily or unreasonably or according to its will and not its judgment, and (4) made a decision based on evidence one might reasonably use to make the determination in question. Winkelman I, 2000 WI App 254 at ¶ 3. The Town zeroed in on the third prong — whether the agency acted arbitrarily or unreasonably or according to its will and not its judgment. The Town claimed that whenever a person defends himself or herself based on the third prong, he or she is in reality defending on equitable grounds and the court sits as a court of equity as to the third prong. In applying its view of the law to this case, the Town posited that the Winkelmans had the opportunity to argue that the variance is unreasonable during the certiorari action and that argument is in concert with the equitable arguments they make here and thus Goode should not apply. The Town pointed out that in its decision, the certiorari court stated:

The court finds that [the Town and the board] acted reasonably in placing the conditions upon the approval of the requested variance. [The Town and the hoard's] actions were neither arbitrary nor oppressive. Given the nature of the conditions imposed upon the granting of [the Winkelmans'] variance, the court finds them to be within the scope of defendants' power and not unreasonably onerous considering the use of the property. While [the Winkelmans] indicate in their brief that they will suffer an undue hardship if forced to raze the rental unit because their mortgage financing was contingent upon the rental income, they have provided absolutely no evidence that such is the case. The court finds that none of [the Winkelmans'] arguments taken individually or collectively, meet the burden of convincing this court that [the Town and the board] made arbitrary, unreasonable or oppressive decisions in placing conditions upon the variance.

¶ 19. First, we find no authority, and counsel at oral argument was unable to cite to any, that says that courts sit in equity in certiorari actions. In fact, the scope of our review in a certiorari action is limited to the record, Ledger v. City of Waupaca Bd. of Appeals, 146 Wis. 2d 256, 261, 430 N.W.2d 370 (Ct. App. 1988), while Goode's equitable analysis sweeps more broadly. See Goode, 219 Wis. 2d at 684 ("In deciding whether to deny a request for an injunction . .. the circuit court should take evidence and weigh any applicable equitable considerations . . . ."). While in certain circumstances a certiorari court has the authority to take additional evidence, see Nielsen v. Waukesha County Bd. of Supervisors, 178 Wis. 2d 498, 521-22, 504 N.W.2d 621 (Ct. App. 1993), simply allowing a court to add to the record does not mean that the court is then sitting in equity. Second, our review of case law reveals that in a certiorari action, the court reviews the reasonableness of the board's action and not, as the Town would have us believe, the reasonableness of the ordinance itself, which is what is at issue in this matter. See Ledger, 146 Wis. 2d at 260-61 (noting that a certiorari action is not the appropriate forum for testing the validity of laws or ordinances, but rather is one for review of a board's decision alone). We therefore reject the Town's argument.

¶ 20. But that does not end the matter because even if the third prong — whether the board acted reasonably — is not equitable in nature, the fact of the matter is that the Winkelmans did raise an equitable argument during the certiorari action. The Winkel-mans argued that the board's action was unreasonable because if they razed the second residence, they would not be able to make the mortgage payments on their own home and therefore would suffer undue hardship. The certiorari court, however, determined that the Winkelmans failed to provide any evidence demonstrating that such was the case and rejected the Winkel-mans' argument. This equitable argument, therefore, has already been determined and the doctrine of issue preclusion controls it. See Michelle T. v. Crozier, 173 Wis. 2d 681, 687, 495 N.W.2d 327 (1993) (concluding that the doctrine of issue preclusion prevents "the relitigation of issues that have been contested in a previous action between the same or different parties"). Accordingly, even though we are reversing and remanding the case to allow the Winkelmans to make their equitable arguments, on remand they may not raise this particular issue again.

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

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. Wisconsin Stat. § 62.23(8) provides:
      (8) Other Measures of Enforcement and Remedies; Penalty. Any building erected, constructed or reconstructed in violation of this section or regulations adopted pursuant thereto shall be deemed an unlawful structure, and the building inspector or city attorney or other official designated by the council may bring action to enjoin such erection, construction or reconstruction, or cause such structure to be vacated or removed. It shall be unlawful to erect, construct or reconstruct any building or structure in violation of this section or regulations adopted pursuant thereto. Any person, firm or corporation violating such provisions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $600 .... In case any building or structure is or is proposed to be erected, constructed or reconstructed, or any land is or is proposed to be used in violation of this section or regulations adopted pursuant thereto, the building inspector or the city attorney or any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent or enjoin or abate or remove such unlawful erection, construction or reconstruction.

       We note that unlike both Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), and Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485 (Lake Bluff TV), review denied, 2002 WI 23, 250 Wis. 2d 556, 643 N.W.2d 93 (Wis. Jan. 31, 2002) (No. 00-1958), this case involves a legal nonconforming use. The spirit of zoning is to restrict nonconforming uses and to eliminate such uses as quickly as possible. City of Lake Geneva v. Smuda, 75 Wis. 2d 532, 538, 249 N.W.2d 783 (1977). The application of Goode's analysis, allowing courts to balance the equities of a situation and deny the relief sought, appears to run contrary to well-established principles of zoning law. This is because there is a chance that the nonconforming use would be allowed to stay, thus running counter to public policy. We therefore question whether Goode should be applied when the case involves legal nonconforming uses. However, we are not the proper court to disturb the precedent our supreme court set in Goode.


source: Caselaw Access Project

author: SNYDER, J. BROWN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Joshua L. Howland, Defendant-Appellant.
    Court of Appeals

      No. 02-2083-CR.

      Submitted on briefs February 19, 2003.

      Decided April 2, 2003.

    2003 WI App 104
    (Also reported in 663 N.W.2d 340.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Paul G. LaZotte, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Alan Lee, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.
   SNYDER, J.

¶ 1. Joshua L. Howland appeals from an order denying his request for postconviction relief after his conviction of second-degree sexual assault of a child. Howland argues that after a plea agreement where the district attorney's office agreed to make no sentence recommendation, the district attorney's office's contact with the probation and parole office to complain about an agent's recommendation for probation instead of incarceration, which resulted in an amended presentence investigation report (PSI) recommending incarceration, constituted a material breach of the plea agreement. Howland further argues that because defense counsel failed to object to the State's effective breach of the plea agreement, he is entitled to resentencing before a new judge. We agree and therefore reverse the order of the circuit court denying Howland's motion for postconviction relief.

FACTS

¶ 2. On July 3, 2001, Howland was charged with second-degree sexual assault of a child and misdemeanor bail jumping. On September 27, 2001, Howland pled no contest to the sexual assault charge. This plea was entered pursuant to a plea agreement. In exchange for Howland's no contest plea, the State agreed to dismiss the bail jumping charge, pursue no additional charges based on the law enforcement referral in this case and make no specific sentence recommendation.

¶ 3. Sentencing was originally scheduled for November 1, 2001. The PSI recommended five to seven years' incarceration. However, Howland's defense counsel had no chance to review the PSI with Howland prior to that date and sentencing was rescheduled for November 13, 2001. During the November 13 hearing, the PSI's author, agent Tania Wilhelmi, indicated that the Division of Community Corrections might change the PSI's sentence recommendation based upon new information from a witness:

I received a phone call from the witness' mother this morning with some additional information that I had not received when I did my research for the PSI. She's here today and I think that the department would possibly change the recommendation that was made in the PSI.

The State explained that a witness to the offense, VH., was now contradicting her original statement to the police by claiming that the sexual intercourse between then eighteen-year-old Howland and the then fourteen-year-old victim was not forcible. The State objected "to any statement from the defense perspective . . . about consent or non-consent given the nature of the conviction here." The circuit court responded that the department had the right to change the sentence recommendation.

¶ 4. At the November 13, 2001 sentencing, the circuit court opined that the PSI's sentence recommendation had, in fact, changed:

Okay. This matter comes on before the Court for sentencing. Two things. First, based on the last hearing, there was an indication that a witness to the incident had changed her original statement, not the victim, concerning what did transpire.
The Department of Probation and Parole consequently did an amended presentence which substantially changed the recommendation in relation to this matter which went from a recommendation in the original presentence dated 10-26— No. They both have the same date on so that doesn't help. —but from the original recommendation of a term of incarceration of five to seven years with extended supervision now to a recommendation of a stayed sentence of five to seven years. This is based apparently on a statement given by the friend, I believe, of the victim. . . who was also present indicating that the assault as opposed to being non-consensual, although as a legal matter you can't have consent, being a forcible, shall I say, sexual assault to a non-forcible sexual assault, which I assume changed that recommendation.

¶ 5. Because of this change in recommendation, the circuit court wanted VH. to explain under oath why she had now changed her account of events:

How I sentence a person is somewhat dependent on the nature of the facts of the case. I've got apparently a friend of the victim saying that the victim's [sic] made statements to her that the incident occurred without the threats of violence or force where she's saying no, etc., etc. The type of sentencing on that just like a burglary, if you have a burglary from a home versus a garage, is they're still burglaries but they're different burglaries.
I wasn't there. Even if we went to trial, it wouldn't solve the dilemma for the simple reason that there can't be consent as a matter of law. So the jurors could still come back and find a guilty because it's just non-consent for a person who's not attained the age of 16. So I could have testimony throughout the trial consistent with whatever, still have a guilty verdict, it still doesn't answer my question. I think the only way I can approach this to some extent is having the third party subpoenaed to give testimony prior to sentencing concerning why the statements were given in one way and one in another way.
But I can judge credibility .... I need to make a decision. I mean, if it's a forcible, there's a high probability of a long lengthy prison sentence. If it's not, then there's— then I can see why the presentence is recommending what they were. How do I solve that dilemma?
I've got someone who's a friend of the victim now saying it didn't happen that way. It's not like one of the defendant's friends. That's where I'm having a problem.
I want that. . . person here, though, Ms. Rusch. I want her subpoenaed. I want to see her under oath.

¶ 6. After hearing the circuit court's position, the State agreed to subpoena VH. but also said, "I'd like to know how much experience the probation agent has had on top of it." Sentencing was again rescheduled, this time for December 10, 2001.

¶ 7. Sometime after this hearing, there was a Community Relations Advisory Board meeting at a Kenosha office of the Division of Community Corrections. After the meeting was over, Marco Tejeda, assistant regional chief for the division, was walking out of the room and noticed Susan Karaskiewicz, Kenosha County Deputy District Attorney. Karaskiewicz indicated that her office had an issue with the PSI and that she would be in contact.

¶ 8. Brian Brown, a field supervisor for the Division of Community Corrections, was nearby and overheard the exchange between Karaskiewicz and Tejeda. Because Brown supervised Wilhelmi, the author of the PSI, and approved the PSI recommending probation, he knew immediately which PSI Karaskiewicz was referring to. Brown was left with the distinct impression that Karaskiewicz was upset with Wilhelmi's probation recommendation.

¶ 9. When the advisory board meeting was over, Brown, Tejeda and Wilhelmi met to discuss the How-land PSI. Tejeda wanted to know the specifics of the case because he was not familiar with them. Brown informed Tejeda of the facts of the case and Tejeda said "we have to be prepared to stand by, defend our recommendation." Brown indicated that both he and Wilhelmi were prepared to do so. Tejeda requested a copy of the PSI and was later provided one. After that meeting, neither Brown nor Wilhelmi had any more direct involvement in the PSI.

¶ 10. Later, while probation and parole agent Brenda Friedrichs was in the district attorney's office copying files for other cases, Kenosha County District Attorney Robert Jambois approached her. During their conversation, Jambois referred to Wilhelmi's decision to change the PSI's recommendation from immediate imprisonment to probation based upon an additional statement from a witness. According to Friedrichs, Jambois

felt it wouldn't be appropriate to change a recommendation based on what one witness says when you don't bother to talk to anybody else but only this one person and to change a recommendation based on what one person had to say and not even bothering to call the victim.

¶ 11. Tejeda subsequently asked Friedrichs to review the PSI and its attached criminal complaint. He also informed her that if she thought it was appropriate, she should contact the victinl. Friedrichs decided to simply review the PSI and its attached criminal complaint but chose not to contact the victim; after doing so, the PSI no longer recommended probation. Instead, the PSI recommended immediate incarceration for five to seven years. Tejeda never asked Friedrichs what she did in conducting her review.

¶ 12. After the encounter at the advisory board meeting, Karaskiewicz did call Tejeda. In a conference call initiated by Karaskiewicz and involving Tejeda, Assistant District Attorney Shelly Rusch and Jambois, Tejeda stated that he had already assigned Friedrichs to review the PSI; Tejeda later testified that he normally does not receive conference calls from the district attorney's office about a PSI.

¶ 13. On December 5, 2001, the district attorney's office wrote a letter to the court, in anticipation of Howland's December 10, 2001 sentencing hearing, addressing the change in the PSI recommendation based upon the change in testimony of witness VH. This letter stated, in relevant part:

On November 13, 2001,1 filed [VH.]'s original two-page statement along with [the victim] 's six-page statement, both dated June 29, 2001. Although Ms. Wilhelmi never re-contacted [the victim] or her parents after changing her recommendation, [the victim] has maintained that the defendant's sexual acts were aggressive and without any consent on her part. To better resolve this issue and, as the court ordered, I have issued subpoenas for [VH.] and [the victim] for December 10, 2001.
I am also in receipt of additional information, which may shed light on the developments as they pertain to [VH.] While [VH.] attended the first sentencing hearing in this case, she was notably absent on November 13, 2001, when the second sentencing hearing was to occur. I later learned that [VH.] was in the courthouse at that time, but was attending the sentencing hearing of her brother-in-law, [J.A.] .... Ironically, [J.A.'s] and Mr. Howland's cases were scheduled for sentencing at precisely the same times. [J.A.] is married to [VH.]'s sister, [VA.], and was sentenced by Judge Warren for acts of extreme domestic violence against [VH.]'s sister .... [V.H.] was an eyewitness to the violence against her sister... on July 15, 2001 and [J.A.] was charged originally with more than 50 years of prison exposure .... In spite of the facts of that case, [VA.] wrote several letters to Judge Warren in support of [J.A.] and his case was resolved with one Class "E" felony and two misdemeanors. [VH.] wrote a letter in support of [J.A.] as well....
I next checked with Lt. Larry Apker of the Kenosha Sheriffs Department to see whether [J.A.] and Mr. Howland shared jail space between their fairly contemporaneous arrests and sentencing hearings (between July and November). In fact they were housed together over a twenty-day period in July. WThat is ironic is the fact that both Howland and [J.A.] committed acts of personal violence in the presence of the same, sole witness to their acts: [VH.] ....
I spoke with [the victim] again, asking her about the nature of her relationship with [VH.] and although the complaint may suggest that these two girls were friends, in fact they had just met for the first time within days of the sexual assault and [the victim] has not associated with [VH.] since the assault.
Finally, I participated in a conference telephone call with Marco Tejeda who is an Assistant Regional Chief at the Department of Corrections. He relayed that Tanya Wilhelmi is a fairly new employee at the Department of Corrections and her supervisor, Brian Brown, is also fairly new. The Department's Sex Offender group reviewed the first PSI. This group consists of agents and supervisors who have specialized training in the supervision of sex offenders. This group did not review the second PSI. I believe that Mr. Tejeda intends to write a letter to the court explaining this anomaly ....

¶ 14. On December 10, 2001, Howland appeared for and was sentenced. The circuit court addressed the previous sentencing adjournment and the PSI's second addendum prepared by Friedrichs.

THE COURT: Sentencing in this matter had been adjourned the other day based on an amended presen-tence which had come in concerning a third party's account which has changed as to the sequence of events although the elements would not change. The Court set the matter over so I could hear testimony preferably of the third party whom apparently was a witness and who had changed her version of what had occurred so I could ask her questions.
In the interim, since that last court date, the Court had received on December 7 an addendum to the presentence from the department reversing their position as to their recommendation which now basically corresponds to the original recommendation and, secondly, the Court had received a letter dated December 5, received December 5 from Ms. Rusch with various attachments and other documents.
That supplemental, though, is two pages, just basically as to why they had gone back to the original position.

¶ 15. The circuit court then asked defense counsel if he had received a copy of the State's December 5, 2001 letter to the court. Defense counsel said, "Yes, I have, and I'm really unhappy with this letter." He continued, "I think it's an attempt out of court to discredit the witness here that the Court wanted to talk with and I just am very, very unhappy with it." While defense counsel protested the final PSI's recommendation and the manner in which the recommendation arrived, defense counsel did not specifically object that the State had effectively breached the plea agreement and did not argue that the State's actions after the second adjourned sentencing hearing effectively amounted to lobbying the Division of Community Corrections to change the PSI's sentence recommendation.

¶ 16. The circuit court imposed a twenty-year bifurcated sentence, consisting of nine years' confinement and eleven years' extended supervision.

¶ 17. On May 20, 2002, Howland filed a motion for postconviction relief. Howland requested resentenc-ing, arguing that the State breached the plea agreement by contacting the Division of Community Corrections between the second adjourned sentencing hearing and the final sentencing. Howland argued that because defense counsel failed to make that objection at the final sentencing hearing, he was denied his right to effective assistance of counsel.

¶ 18. Two evidentiary hearings were held on this motion, the first on June 21, 2002, and the second on July 22, 2002. The circuit court found "there's no question that the District Attorney's Office . . . did have conversations with representatives of the Department of Probation and Parole" and after those conversations, the PSI again recommended immediate confinement in state prison for five to seven years. However, the circuit court held that this contact did not constitute a breach of the plea agreement and therefore prior defense counsel was not ineffective for failing to allege a breach.

¶ 19. On July 25, 2002, the circuit court entered a written order denying the postconviction motion. How-land appeals.

DISCUSSION

¶ 20. Howland argues that because trial defense counsel failed to object to the State's breach of the plea agreement, trial defense counsel was ineffective and he is thus entitled to resentencing before a new judge. However, this assumes that the State's conduct does constitute a breach of the plea agreement, which the State denies. The State argues there was no breach and does not address the ineffective assistance of counsel issue.

¶ 21. Howland has a Sixth Amendment right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. Eckert, 203 Wis. 2d 497, 506, 553 N.W.2d 539 (Ct. App. 1996). In order to prove that he has not received effective assistance of counsel, Howland must demonstrate two things: (1) that his lawyer's performance was deficient; and (2) that this deficient performance prejudiced his defense. See Eckert, 203 Wis. 2d at 506.

¶ 22. We have held that a postconviction Machner hearing is a prerequisite to a claim of ineffective assistance of counsel in order to preserve the testimony of trial defense counsel. State v. Curtis, 218 Wis. 2d 550, 554, 582 N.W.2d 409 (Ct. App. 1998). Here, however, during the first postconviction hearing, the circuit court ruled that there was no reason to have trial defense counsel testify before the circuit court decided whether a breach of the plea agreement had occurred. We agree. If there was no breach of the plea agreement, then trial defense counsel would not have been ineffective for failing to object. See State v. Wheat, 2002 WI App 153, ¶ 14, 256 Wis. 2d 270, 647 N.W.2d 441, review denied, 2002 WI 111, 256 Wis. 2d 65, 650 N.W.2d 841 (Wis. July 26, 2002) (No. 01-2224-CR) (failure to raise an issue of law is not deficient performance if the legal issue is later determined to be without merit).

¶ 23. However, the circuit court also concluded that trial defense counsel's testimony was unnecessary because if there was a breach of the plea agreement, resentencing was the automatic remedy. This conclusion assumes that prejudice automatically flows from any breach of the plea agreement, regardless of trial defense counsel's reasons for the failure to object. While we do not agree with this leap in logic, neither party objected to the circuit court's directive regarding the hearing's procedural progress. Furthermore, it does not appear that either party requested trial defense counsel's testimony after the circuit court determined that the State had not breached the plea agreement. In addition, in its brief, the State does not address the ineffective assistance of counsel claim but limits its argument to the question of a breach. Thus, we will treat this case as if trial defense counsel had objected and the question of whether or not the State's actions constitute a breach of the plea agreement is the only question before us.

¶ 24. The terms of a plea agreement and the historical facts of the State's conduct that allegedly constitute a breach of a plea agreement are questions of fact. State v. Williams, 2002 WI 1, ¶ 5, 249 Wis. 2d 492, 637 N.W.2d 733. We review the circuit court's findings of fact under the clearly erroneous standard of review. Id. However, whether the State's conduct constitutes a breach of the plea agreement and whether the breach is material and substantial are questions of law. Id. We determine questions of law independently of the circuit court. Id.

¶ 25. An accused has a constitutional right to the enforcement of a negotiated plea agreement. Id. at ¶ 37. Consequently, once an accused agrees to plead guilty in reliance upon a prosecutor's promise to perform a future act, the accused's due process rights demand fulfillment of the bargain. Id. A prosecutor who does not present the negotiated sentencing recommendation to the circuit court breaches the plea agreement. Id. at ¶ 38.

¶ 26. An actionable breach must not be merely a technical breach; it must be a material and substantial breach. Id. When the breach is material and substantial, an accused may be entitled to resentencing. Id. A material and substantial breach is a violation of the terms of the agreement that defeats the benefit for which the accused bargained. Id. "End runs" around a plea agreement are prohibited. Id. at ¶ 42. "The State may not accomplish by indirect means what it promised not to do directly, and it may not covertly convey to the trial court that a more severe sentence is warranted than that recommended." Id. A prosecutor may not "convey a message to the trial court that a defendant's actions warrant a more severe sentence than that recommended." State v. Ferguson, 166 Wis. 2d 317, 322, 479 N.W.2d 241 (Ct. App. 1991).

¶ 27. The determination of law whether a breach occurred and whether the breach was substantial and material requires a careful examination of the facts. Williams, 2002 WI 1 at ¶ 53.

¶ 28. Here, pursuant to the terms of the plea agreement, the State agreed to make no sentence recommendation. The original PSI recommended five to seven years' incarceration. However, at the rescheduled sentencing hearing on November 13, 2001, the PSI author indicated that a witness to the crime had additional information relevant to the sentence recommendation. After talking to this witness, the author amended her report and changed the recommendation to a stayed sentence and probation.

¶ 29. On no less than three occasions (Karaskiewicz with Tejeda at the Community Relations Advisory Board meeting, Jambois with Friedrichs at the district attorney's office and Karaskiewicz, Jambois and Rusch in a conference call with Tejeda), the State contacted the Division of Community Corrections to express its displeasure with the agent's recommendation, even going so far as to say that the recommendation, based upon an additional witness statement without recontacting the victim, was "inappropriate." The district attorney's December 5, 2001 letter to the. circuit court expressed as much. The PSI was then amended for a second time, changing the recommendation back to five to seven years' incarceration; however, this amendment was also done without the authoring agent recontacting the victim, the district attorney's criticism with the first amended report.

¶ 30. We agree with the State that we must honor the circuit court's finding that the State did not seek to achieve any change in the PSI but was merely trying to correct factual error and raise its concerns regarding the Division of Community Corrections' methodology and that no one ever explicitly asked the Division of Community Corrections to change its recommendation.

¶ 31. But again, whether this conduct constitutes a breach of the plea agreement is a question of law, id. at ¶ 5, and the State's conduct need not be based on bad motive or intent to violate a plea agreement. Santobello v. New York, 404 U.S. 257, 262-63 (1971). The inescapable conclusion to be drawn from the facts is that the final PSI recommendation was the product of the district attorney's intervention. Thus the State was able to procure a sentence recommendation through the Division of Community Corrections by challenging the methods it used. This constituted an "end run" around the plea agreement. "[J]ust because a prosecutor says there was no breach does not make it so." Williams, 2002 WI 1 at ¶ 52. If the prosecutor agreed to make no sentence recommendation, action by the prosecutor via influence with the presentence investigator would have rendered this no-sentence recommendation bargain meaningless. That the State did not intend to breach the agreement or that a breach was inadvertent "does not lessen its impact." Id.

¶ 32. We must also note that the inappropriate nature of the contact between the district attorney's office and the Division of Community Corrections borders on ex parte communications. Our supreme court has acknowledged the importance of the PSI to the sentencing process. State v. Suchocki, 208 Wis. 2d 509, 518, 561 N.W.2d 332 (Ct. App. 1997). The securing of a PSI is an integral part of the sentencing function and is solely within the judicial function. Young v. State, 49 Wis. 2d 361, 368, 182 N.W.2d 262 (1971). The purpose of a PSI is to assist the judge in selecting the appropriate sentence for the individual defendant. State v. Knapp, 111 Wis. 2d 380, 384, 330 N.W.2d 242 (Ct. App. 1983). The Division of Community Corrections does not function as an agent of either the State or the defense in fulfilling its role but as an agent of the trial court in gathering information relating to a specific defendant. Suchocki, 208 Wis. 2d at 518.

¶ 33. The preparer of the PSI is to be a neutral and independent participant in this sentencing process. State v. McQuay, 154 Wis. 2d 116, 131, 452 N.W.2d 377 (1990). Presentence reports are designed to gather information concerning a defendant's personality, social circumstances and general pattern of behavior so the judge can make an informed sentencing decision. Knapp, 111 Wis. 2d at 386. In Wisconsin, the entire sentencing process is to be a search for truth and an evaluation of alternatives and any advance understanding between the. prosecutor and defendant must not involve any persons conducting a presentence investigation for the court. Farrar v. State, 52 Wis. 2d 651, 657, 191 N.W.2d 214 (1971).

¶ 34. It is important that a defendant and the probation officer have a relationship which encourages an accurate appraisal of a defendant's social and criminal history and a recommendation for beneficial rehabilitative treatment which will best modify a defendant's behavior to conform to society's requirements. Knapp, 111 Wis. 2d at 387. The purpose of the PSI is to do more than simply compile the factual background regarding a specific defendant. Suchocki, 208 Wis. 2d at 518. The report contains a variety of areas where the PSI writer is able to make discretionary determinations. Id. For example, the report has a section involving the "agent's impressions." Id. This portion of the PSI involves the writer's subjective feelings regarding the defendant to be sentenced. Id. at 518-19.

¶ 35. It is not the mere existence of contact between the prosecuting attorney and the PSI writer that is at issue. Id. at 519. It is whether the PSI writer may be subconsciously influenced by this relationship in forming impressions regarding the defendant and in making recommendations to the court. Id.

¶ 36. The integrity of the sentencing process demands that the report be accurate, reliable and, above all, objective. Id. at 518. A defendant's cooperation and openness depend upon the objectivity of this report; a cooperative and open relationship would be impossible if the defendant perceives the probation officer to be a mere puppet of the district attorney's office. Because of the requirement that the report be objective, it is of vital importance that the author of the report be neutral and independent from either the prosecution or the defense. Id.

¶ 37. We conclude that the district attorney's contacts with the Department of Probation and Parole, complaining about the PSI author's sentence recommendation, when the plea agreement required the State to make no sentence recommendation, resulted in a material and substantial breach of the plea agreement. Consequently, we reverse the order denying Howland's postconviction motion and we remand the cause to the circuit court for resentencing.

¶ 38. We further conclude that because of the nature of the past proceedings, Howland's resentencing would be best conducted by a new circuit court judge. Furthermore, to avoid any further taint in this case, we also conclude that a new presentence investigation should be conducted and a new report completed by a department from another county.

CONCLUSION

¶ 39. We agree with Howland that the district attorney's contact with the Division of Community Corrections to complain about a PSI sentence recommendation, which resulted in a change in recommendation from probation to incarceration, breached the plea agreement in which the district attorney's office agreed to make no sentence recommendation. Howland is entitled to resentencing before a new judge after a new PSI is completed by a different county. We therefore reverse the order of the circuit court denying Howland's motion for postconviction relief and remand this matter for resentencing after the completion of a new PSI.

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

BROWN, J.

¶ 40. (concurring). I believe that, as an officer of the court, the district attorney not only has the right, but also the responsibility, to protest any perceived departures from normal practice when PSI's are being prepared if those changes are detrimental to victims' rights. A change in a PSI recommendation, prompted by a hearsay telephone call that disputes a victim's account, without giving the victim an opportunity to respond, warrants a protest by the district attorney. The district attorney has a duty to protect victims throughout the criminal process, including the PSI stage. To the extent that the majority opinion may he saying otherwise, I respectfully disagree.

¶ 41. Nor do I believe that the actions of the district attorney's office resulted in a de facto "end around" the district attorney's plea agreement to keep silent regarding any sentencing recommendation. To the extent that the majority opinion says otherwise, I disagree. I do not believe that the district attorney intentionally or functionally breached the plea bargain.

¶ 42. The reason why I concur rather than dissent is because the avenue chosen by the district attorney's office to register its concerns about PSI procedure was to commence and carry out a series of presentence, ex parte communications with the Division of Community Corrections about the method employed in this case, all of which occurred before the final sentencing hearing. I think this was improper. The correct avenue would have been to bring its concerns to the attention of the court, with notice to opposing counsel, and ask the court to deal with these concerns. The emphasis would not have been on any change in recommendation, but upon the right of the victim to reply to the hearsay information provided by some other person.

¶ 43. Such as it is, the ex parte communications ruined the independent nature of this PSI. As the majority points out, the PSI writer may have been subconsciously influenced by the relationship between the Division of Community Corrections and the district attorney's office in making a change in the recommendation to the court. For this reason, the objective nature of the PSI was in danger of being compromised. I would reverse in the interests of justice, not because of any perceived breach of the plea bargain. I agree with the instructions on remand.

        State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

       We note that Judge Bruce E. Schroeder is also ineligible to conduct the resentencing. Howland filed a request to substitute Judge Schroeder in the early stages of this case.

       I point out that Wis. Stat. § 950.04(lv)(p) (2001-02) provides that, as part of a victim's basic bill of rights, the presentence writer must make a reasonable attempt to contact the victim. Viewing § 950.04 as a whole, I cannot conceive of any other interpretation than that this section includes being notified if some person tells the PSI writer that the victim has retracted a statement originally made. Failure to do so is unreasonable. As an officer of the court and as one with a special duty toward victims, the district attorney has the right and obligation to protest.


author: SCHUDSON, J.

text:
    Clarice Baldwin as Personal Representative of the Estate of Jerry Baldwin, Willie Banks, Christella Burnett, Milton Chacon, J.C. Griffin, George Harris, Carl Hays, Roosevelt Henderson, Joe Hoffmann, Kurt Jarosch, Dennis Kaminski, Jimmy Kelly, Leo Kyles, Avelina Pesqueira, Estate of Jorge Pesqueira, Arthur Phillips, James Salley, Sr., Henry Tyler, Jr., Robert Van Laanen, Larnell Vann and Jessie Walker, Plaintiffs, Ollie Cocroft, Plaintiff-Appellant, Claims Management Services, Department of Health & Family Services, Payco General American Credits, American Family Mutual Insurance Company, Pelton Casteel, Muhammad Nadeem, M.D., Compcareblue Health Services, Department of Veterans Affairs, Kenosha Hospital, Medicare Part B, Medicare Part A, Blue Cross, St. Mary's Hospital - Racine, All Saints Hospital, Principal Mutual Insurance Company - Humana, Travelers insurance Company, United American Insurance Company, Primecare Gold/Primecare Health, Medicaid Recipient Services, Aurora Home Medical Services, Royal Insurance Company of America, Sinai Samaritan Medical Center, American Republic Insurance Company, St. Joseph's Hospital, Social Security Administration, Claims Management Services, Inc., EBS Health Plan, Covenant Health/St. Francis, Milwaukee Radiologists, Ltd., Humana Health Plan - Aurora, Federated Adjustment Company, Air Respiratory Services, DaimlerChrysler Corporation, St. Luke's Hopsital, American Family Insurance Company, Community Insurance Health Plan, Social Security Administration and St. Joseph's Hospital, Subrogated-Plaintiffs, v. Badger Mining Corporation and Mine Safety Appliances Company, Defendants-Respondents, Minnesota Mining & Manufacture and Moldex Metric, Inc., Defendants, North Safety Products Company, Norton Company, Textron, Inc., Liberty Mutual Insurance Company, and Travelers Casualty & Surety Company, f/k/a Aetna Casualty & Surety Company, Defendants-Respondents, American Optical Corporation, Defendant, Dalloz Safety, Inc. and Employers Insurance Company of Wausau, Defendant-Respondent.
    Court of Appeals

      No. 02-1197.

      Submitted on briefs March 7, 2003.

    Decided April 8, 2003.

    2003 WI App 95
    (Also reported in 663 N.W.2d 382.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael F. Hart of Kohler & Hart LLP, of Milwaukee.
    On behalf of the defendant-respondent Badger Mining Corporation, the cause was submitted on the brief of Michael J. Cohen of Meissner Tierney Fisher & Nichols, S.C., of Milwaukee, and L. John Argento and Cathy R. Gordon, pro hoc vice of Dickie, McCamey & Chilcote, P.C., of Pittsburgh, PA.
    On behalf of the defendants-respondents Norton Company, North Safety Products, Inc., and Textron, Inc. the cause was submitted on the combined brief of Daniel A. Haws of Murnane, Conlin, White & Brandt, of St. Paul, MN., and defendant-respondent Liberty Mutual Insurance Company by William J. Katt of Lieb. & Katt, S.C., of Milwaukee, and defendant-respondent Travelers Casualty & Surety Company by Donna J. Vobornik of Sonnenschein Nath & Rosenthal, of Chicago, IL, and defendant-respondent Mine Safety Appliances Company by Mark A. Frankel of LaFollette God-frey & Kahn, of Madison, WI.
    On behalf of the defendant-respondent Dalloz Safety, Inc., and Employers Insurance Company of Wausau, the cause was submitted on the brief of Patrick J. Anderson of Matthiesen, Wickert & Lehrer, S.C., of Hartford, WI.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 7-9-03.

   SCHUDSON, J.

¶ 1. Ollie Cocroft appeals from the circuit court's final orders: (1) granting summary judgment and dismissing his claims against Badger Mining Corporation (Badger); and (2) granting summary judgment and dismissing his claims against four manufacturers of respirator masks and their insurers (collectively, the "respirator defendants"). Cocroft argues that the court erred in concluding that the statute of limitations barred his claims.

¶ 2. We conclude that the circuit court correctly determined, under Borello v. U.S. Oil Co., 130 Wis. 2d 397, 388 N.W.2d 140 (1986), that the statute of limitations barred Cocroft's claims against Badger. We also conclude, however, that because a genuine material factual issue remains — whether Cocroft was reasonably diligent in discovering his cause of action against the respirator defendants — the court erred in granting summary judgment and dismissing his claims against them. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this decision.

I. BACKGROUND

¶ 3. According to the summary judgment submissions, from 1955 to 1996, except for two years while he was in the military, Cocroft worked at the Falk Foundry in Milwaukee. In 1982 he learned that he had suffered some kind of lung damage from his work at the foundry and, in 1985, he was diagnosed with silicosis, an incurable lung disease. Cocroft was informed that his disease had resulted from his inhalation of silica dust generated from the sand used in the molding and grinding processes of his work. Badger was a manufacturer of the sand.

¶ 4. During his daily work at Falk, Cocroft, as recommended throughout his employment, wore respirator masks produced by various manufacturers. He believed that those masks protected him from the dust. Therefore, when he learned he was suffering from lung problems due to the inhalation of workplace dust, he surmised that he must have inhaled the dust during those interludes — while walking to and from his workstation, talking to his supervisor or co-workers, attending safety classes, eating lunch and taking other work breaks — when he had not worn a mask.

¶ 5. In 1984, Falk advised Cocroft that, despite his lung problems, he could continue to work but must take "strict pulmonary precautions." And in 1985, after diagnosing Cocroft's silicosis, Cocroft's doctor advised him to take another position or, if he continued .the same work, to always wear a respirator mask "to prevent further exposure to silica." Cocroft continued working at Falk, wearing a mask at virtually all times and believing that the masks protected him.

¶ 6. In 2000, Cocroft learned that the masks he had used may have been defective, and that the mask manufacturers may have known that, under certain hot and humid conditions, the defects allowed dust particles to penetrate the protective filters, seals, surfaces, and exhalation valves. Thus, soon thereafter, Cocroft brought the underlying action: (1) against Badger, claiming failure to warn of the danger of the sand and failure to advise Falk how to prevent the harm; and (2) against the respirator defendants, claiming strict products liability, negligence, misrepresentation, punitive damages, and breach of express and implied warranties.

¶ 7. The defendants moved for summary judgment arguing that Cocroft's claims were barred by Wis. Stat. § 893.54(1) (2001-2002), the statute of limitations providing that "[a]n action to recover damages for injuries to the person . . . shall be commenced within 3 years or be barred." They contended that Cocroft had known of his disease and its cause since 1982 or, at the latest, 1985.

¶ 8. The circuit court agreed. In its February 25, 2002 oral decision granting summary judgment to Badger, the court explained, in part:

[U]nder the circumstances[,] ... the plaintiff clearly understood that in 1985, he was diagnosed with silicosis; that it was caused by the dust from his work environment. And under those circumstances, he fully understood the injury, the nature of the injury, the cause of the injury, and he either knew or should have known with reasonable diligence that Badger Mining would be an alleged responsible defendant through the product[.]

And also granting summary judgment to the respirator defendants, the court continued:

I think there was sufficient information known to Mr. Cocroft in 1985 that would warrant his further investigation even [considering] the allegations regarding concealing the information and the lack of disclosure [;] . . . that under those circumstances where . . . the plaintiff states that he didn't know what Falk relied on from the representations .. . from the manufacturer[s of the masks] regarding safety,... he should have engaged in some kind of investigation. He believed, apparently, and had stated he trusted the high standards of his employer, but there were no facts on which he could rely for that high standard or the reliance . .. from Falk Corporation on those representations. So he had an independent duty, separate and distinct.

¶ 9. The court then further elaborated the basis for its decision dismissing Cocroft's claims against the respirator defendants:

[I]t's undisputed that Mr. Cocroft in 1985 was advised by his doctor that he had silicosis. It was caused by the dust in the factory;... he was not aware of any representations by the respirator manufacturers regarding safety. He had certainly a general belief and trusted in his employer and high standards. He did not know what representations the manufacturers may have made to Falk Corporation.
. . . [T]aking the evidence in the light most favorable to the plaintiff!,] that he believed that the silicosis may have been caused by the short periods of time that he wasn't wearing a mask, it at best [was] a mere belief that had nothing to substantiate that belief.
... [T]he doctor told him to find a different job. But. . . the doctor really wasn't an expert in this area[; he] gave just the general advice and treated him, had him come back, but really wasn't an expert in the area, wasn't someone that he justifiably relied on in evaluating the extent of his injury, the cause of the injury, other than broadly dust at work caused it.
.. . [H]e didn't ask his doctor, ["W]ould it be sufficient that I took my mask off periodically!;] would that cause it?["] Or, ... , ["I]s there something that I should be concerned about with the masks!?"] The doctor probably would have told him[: "N]o, I don't know any of those things. Go talk to somebody.!"] But he didn't ask that in the first instance.
There is no evidence in the record that he clearly went back and questioned Falk Corporation regarding the safety of the masks.
... [A] reasonably] objective plaintiff who knows of an injury, the cause of the injury, has a duty to investigate both medically and legally the causes of that injury.
And had he gone to a lawyer in the State of Wisconsin in 1985,... [t]he lawyer would want to know how often the mask was off, would then weed out the medical attention or opinions, expert opinions as to how do you develop silicosis. Is it a short exposure or is there something else[?] And if there is a combination possibility, then we're going to look at what those causes are.
And I think under those circumstances, a reasonably objective plaintiff is obligated then to seek out that medical attention, and Mr. Cocroft should have at that time.

¶ 10. Cocroft challenges the summary judgments granted to Badger and the respirator defendants. Regarding Badger, his argument is brief and, as we will explain, unconvincing. Regarding the respirator defendants, however, his argument — that the summary judgment submissions established a material factual issue of whether he exercised reasonable diligence in discovering the respirator defendants' potential liability — is correct. Therefore, without needing to address Cocroft's additional argument that the respirator defendants should have been equitably estopped from asserting their statute-of-limitations defense, we conclude that whether Cocroft exercised reasonable diligence in discovering his cause of action against the respirator defendants remains a material factual issue for trial.

II. DISCUSSION

¶ 11. Our review of a circuit court's grant of summary judgment is de novo. Groom v. Professionals Ins. Co., 179 Wis. 2d 241, 246, 507 N.W.2d 121 (Ct. App. 1993). Where a defendant's summary judgment submissions state a prima facie defense based on a statute of limitations, the party opposing summary judgment has the burden to establish the existence of disputed material facts to defeat summary judgment. See Fritz v. McGrath, 146 Wis. 2d 681, 683, 431 N.W.2d 751 (Ct. App. 1988). Summary judgment must not be granted if the submissions establish that a genuine issue of material fact remains for trial. Wis. Stat. § 802.08(2).

¶ 12. "[U]nder Wisconsin law, a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant's conduct or product." Borello, 130 Wis. 2d at 411. "The issue of reasonable diligence is ordinarily one of fact." Spitler v. Dean, 148 Wis. 2d 630, 638, 436 N.W.2d 308 (1989). Nevertheless, "when the facts and reasonable inferences that can be drawn from the facts are not in dispute, whether a plaintiff has exercised reasonable diligence is a question of law." Hennekens v. Hoerl, 160 Wis. 2d 144, 161, 465 N.W.2d 812 (1991).

¶ 13. "Reasonable diligence [in discovering the probable cause of injury] means such diligence as the great majority of persons would use in the same or similar circumstances." Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 823, 512 N.W.2d 216 (Ct. App. 1994). Our review of a circuit court's grant or denial of summary judgment, based on its determination of a plaintiffs reasonable diligence, is de novo. See id. at 821.

A. Badger Mining Corporation

¶ 14. Cocroft asserts that Badger "never properly advised its customers (including Falk) on how to safely use its silica-containing products," and that Badger violated its "duty to adequately warn about the non-obvious hazards presented by the intended use of its product." He further contends that, by initially offering "no instructions whatsoever on the type of respirators required to use its products safely," by subsequently recommending respirators that "did not protect the workers," and by failing to recommend "other commercially available respirators that provided a much higher degree of protection," Badger became a "joint tortfeasor with the respirator manufacturers." Cocroft maintains that he "could not have reasonably discovered Badger's wrongful conduct in recommending the wrong type of respirator until shortly before suit was filed" and argues, therefore, that the statute of limitations does not bar his action against Badger.

¶ 15. Cocroft, however, limiting his theory to allegations about Badger's "wrongful conduct," steps around Borello's dispositive standard: the statutory time period begins to run when the plaintiff discovers "that the injury was probably caused by the defendant's conduct or product." See Borello, 130 Wis. 2d at 411 (emphasis added). It is undisputed that fifteen years before Cocroft filed his claims, his doctor informed him that he had silicosis caused by inhalation of silica dust from the sand at Falk. It is undisputed that Cocroft knew that Badger was a manufacturer of that sand. Cocroft offers no authority to support his implicit argument that the subsequent discovery of possible connections between Badger's conduct, the respirator masks, and his injury should extend the accrual date for his cause of action. See Claypool v. Levin, 209 Wis. 2d 284, 301, 562 N.W.2d 584 (1997) (plaintiff need not be aware of specific legal theory on which recovery could be sought in order for cause of action to accrue). Accordingly, we conclude that the circuit court correctly granted summary judgment to Badger.

B. The Respirator Defendants

¶ 16. Cocroft argues that "two competing reasonable inferences regarding [his] diligence" in discovering the potential liability of the respirator defendants may be drawn from the summary judgment submissions. He contends that while one might conclude, as the circuit court did, that he failed to exercise reasonable diligence, a "strong, countervailing inference" is that he did indeed exercise reasonable diligence by acting "just as the great majority of people would have . .. under similar circumstances." Cocroft is correct.

¶ 17. The summary judgment submissions establish important undisputed facts from which certain logical inferences may flow. In 1985, upon being diagnosed with silicosis and learning that his disease was caused by the inhalation of silica dust, Cocroft obtained and followed the advice of both his doctor and employer. Continuing to work at Falk, he was all the more careful in consistently using the respirator masks— masks his doctor, employer, and he believed would protect him. Knowing of no defect in the masks, Cocroft therefore surmised that his disease must have resulted from dust inhalation during those times he had failed to wear a mask. Thus, he did not suspect that the masks had played any role in causing his disease. When he learned they may have done so, he promptly filed his action.

¶ 18. The respirator defendants contend that Cocroft, instead of surmising that he must have inhaled the dust during those periods he was not wearing a mask, could have deduced that their products (which, they maintain, had no defects) may have been defective and, therefore, should have investigated whether they were causative. Emphasizing that Cocroft did nothing to investigate, they argue that he failed to fulfill what they term his "duty to determine the cause of his injury." They are incorrect.

¶ 19. Although the respirator defendants' theory may gain viability at trial, its premise is flawed or, at least at the summary judgment stage, premature. As we recently reiterated:

The cause of an injury is "discovered" when a potential plaintiff has information that would give a reasonable person notice of the cause of injury. A plaintiff cannot wait until he or she is certain about the cause, or wait for expert verification of known information. On the other hand, Wisconsin law does not require a plaintiff to bring a lawsuit before the plaintiff has sufficient information to reach an objective conclusion as to cause. This is because Wisconsin courts "have consistently recognized the injustice of commencing the statute of limitations before a claimant is aware of all the elements of an enforceable claim," including the discovery of the identity of the defendant and the cause of the injury.

Jacobs v. Nor-Lake, Inc., 217 Wis. 2d 625, 636-37, 579 N.W.2d 254 (Ct. App. 1998) (emphasis added; citations omitted). Here, depending on the facts developed at trial, a jury could conclude that Cocroft's "known information," see id., primarily coming from his doctor and employer, led him to do nothing with respect to the mask manufacturers because he logically deduced that he was responsible for his disease. And a jury could conclude that nothing is exactly what "the great majority of persons would [have done] in the same or similar circumstances." See Awve, 181 Wis. 2d at 823.

¶ 20. Thus, we conclude, the summary judgment submissions establish the existence of a genuine material factual issue — whether Cocroft was reasonably diligent in discovering the possible connection between the respirator masks and the probable cause of his disease. While a jury could find that Cocroft failed to exercise reasonable diligence, it also could find that Cocroft, relying on the "known information" he received from his doctor and his employer, logically surmised that his own failure to always wear a protective mask had allowed for the damaging exposure. Thus, a jury could conclude that Cocroft, like the great majority of others under the same or similar circumstances, would have postponed any investigation of the respirator masks until he learned of their possible defects. See Sawyer v. Midelfort, 227 Wis. 2d 124, 157, 595 N.W.2d 423 (1999) ("The question of whether plaintiffs exercised reasonable diligence is ordinarily one of fact, to be determined by the fact-finder.").

By the Court. — Order granting summary judgment to Badger Mining Corporation affirmed; order granting summary judgment to the respirator defendants reversed and cause remanded for further proceedings.

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

       We acknowledge that a plaintiffs knowledge of the possible causative nature of a defendant's product would not necessarily cement a one-and-only accrual date. Under certain circumstances, a defendant's conduct could alter that date, particularly where that conduct carries essential information about the connection between the product and the probable cause of injury "outside the[] reach" of a plaintiff. See Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 825, 512 N.W.2d 216 (Ct. App. 1994); see also Hester v. Williams, 117 Wis. 2d 634, 644-45, 345 N.W.2d 426 (1984) (plaintiffs detrimental reliance on defendant's collusion, concealment or fraud may equitably estop defendant from raising statute of limitations defense). In the instant case, however, Cocroft presented nothing to establish that Badger knew of any defects in the respirator masks, acted or conspired with the mask manufacturers to conceal any defect, or negligently or intentionally recommended masks that it knew or should have known would not protect the Falk workers.

       It is undisputed that neither Cocroft's employer nor Cocroft's doctor knew or advised him of any possible defects in the respirator masks.

       It is undisputed that Cocroft knew of no defects in the masks and could not detect the invisible, odorless, and tasteless silica dust that may have penetrated his masks.

       We note that Cocroft was not represented by counsel, for anything related to his disease, until shortly before he filed his action. While the respirator defendants make much of the fact that Cocroft gained his knowledge of the possible causal connection between the respirator masks and his disease from attorneys seeking potential plaintiffs for actions against the mask manufacturers, they offer no authority altering the focus of our inquiry — on Cocroft's "known information" and reasonable diligence, not on the motivations of those who may have provided him with the information. Thus, this case presents no additional issue of whether, in the determination of Cocroft's reasonable diligence, an attorney's knowledge or reasonable diligence would be imputed to Cocroft. See Claypool v. Levin, 209 Wis. 2d 284, 562 N.W.2d 584 (1997).

       While not resolving the parties' dispute over whether the respirator defendants are equitably estopped from invoking a statute-of-limitations defense, we recognize that, factually, some of their assertions on this issue may come into play in their litigation of whether Cocroft was reasonably diligent in discovering the probable cause of his injury.
      For example, Cocroft, in his brief to this court, asserts that he "reasonably relied on the representations and omissions of the respirator-defendants and was led to believe the respirators worked properly." Certainly, if that is so, a jury could conclude that such representations and omissions influenced Cocroft's decision to not investigate the masks as a possible cause of his disease and, further, that he was reasonably diligent despite his failure to do so. See Borello v. U.S. Oil Co., 130 Wis. 2d 397, 414, 388 N.W.2d 140 (1986) ("discovery does not occur until there is information available to the claimant of the nature of. .. injury, the cause of... injury, and the defendant's part in that cause.").
      By contrast, one of the respirator defendants, Dalloz Safety, Inc., and its insurer, Employers Insurance Company of Wausau, in their brief to this court, counter: "Cocroft intentionally turned a blind eye to information that was easily within his reach. He concedes that he suspected the possibility of a respirator problem, yet did nothing." They do not, however, cite anything to support these assertions. See Wis. Stat. Rule 809.19(l)(e) & (3)(a) (arguments in appellate briefs must be supported by authority and citations to the record). In fact, they quote several portions of Cocroft's deposition that would seem to suggest otherwise. For example, to the question, "You didn't know how you could get the damage to your lungs if you were wearing your respirator: is that what you're saying?" Cocroft answered, "That's correct." Needless to say, however, if, as Dalloz and Employers assert, Cocroft intentionally turned a blind eye to information within his reach despite suspecting that defects in the masks probably caused his disease, that would undoubtedly enter into a jury's determination of whether he was reasonably diligent.