author: CURLEY, J.

text:
    Cir. Ct. No. 01CV7806 Leane Teriaca, Plaintiff-Appellant, v. Milwaukee Employes' Retirement System/Annuity and Pension Board, Defendant-Respondent. [Case No. 02-2545.] Cir. Ct. No. 01CV10007 Richard T. Jasso, Plaintiff-Respondent, v. Milwaukee Employes' Retirement System/Annuity and Pension Board, Defendant-Appellant. [Case No. 02-2720.]
    Court of Appeals

      Nos. 02-2545, 02-2720.

      Submitted on briefs April 1, 2003.—

      Decided June 10, 2003.

    2003 WI App 145
    (Also reported in 667 N.W.2d 791.)

      In case No. 02-2545, on behalf of the plaintiff-appellant Leane Teriaca, the cause was submitted on the briefs of Rebecca D. Boyle and Paul H. Beard of Fuchs, DeStefanis & Boyle, S.C., of Milwaukee.
    In case No. 02-2720, on behalf of the defendant-appellant Milwaukee Employes' Retirement System/ Annuity and Pension Board, the cause was submitted on the briefs of Grant F Langley, city attorney, and Maurita Houren, assistant city attorney.
    In case No. 02-2545, on behalf of the defendant-respondent Milwaukee Employes' Retirement System/ Annuity and Pension Board, the cause was submitted on the brief of Grant F. Langley, city attorney, and Maurita Houren, assistant city attorney.
    In case No. 02-2720, on behálf of the plaintiff-respondent Richard T. Jasso, the cause was submitted on the brief of Rebecca D. Boyle and Paul H. Beard of Fuchs, DeStefanis & Boyle, S.C., of Milwaukee.
    Before Fine, Schudson and Curley, JJ.
   CURLEY, J.

¶ 1. Leane Teriaca appeals from the trial court's order affirming the termination of her duty disability retirement (DDR) allowance by the City of Milwaukee Employes' Retirement System/Annuity and Pension Board (Board). The Board also appeals the reversal of its decision terminating Richard Jasso's DDR allowance. We determine the phrase "fit for service," found in Chapter 36 of the Milwaukee City Charter (MCC), is ambiguous; thus, we must harmonize this phrase with the wording of other ordinances dealing with the City's retirement plans. In doing so, we determine that a recipient found no longer "disabled" as a result of a work-related injury, but not "fit for service" because of other unrelated injuries or conditions, is ineligible for DDR. We also are satisfied that no constitutional, statutory or contractual rights were violated by the Board's decisions, and that sufficient evidence was presented to the Board to support its decisions. Thus, we conclude that the Board properly terminated DDR benefits in both cases. Consequently, we affirm the trial court's order in Teriaca's case, and reverse the trial court's order in Jasso's case.

I. Background.

¶ 2. Teriaca and Jasso are both City of Milwaukee police officers who were injured while on duty and who were found eligible for DDR allowances pursuant to MCC § 36-05-3-a. A DDR is one of several types of benefit packages offered by the City of Milwaukee Employes' Retirement System (MERS). See MCC § 36-05-3. The plan also authorizes an ordinary disability retirement allowance, see MCC § 36-05-2-b, and a service retirement allowance, see MCC § 36-05-1.

Leane Teriaca

¶ 3. Teriaca began working for the Milwaukee Police Department in October of 1975. In 1981, Teriaca was injured when she slipped and fell from a police car. In 1983, she was injured again when she was kicked by a prisoner. Teriaca also strained her back during an off-duty arrest in 1984. As a result, she claimed work injuries consisting of neck, low back and upper extremities pain. She was placed on modified duty from 1983 until 1988. She first applied for DDR in 1986. Because MCC § 36-05-3-c-l-a dictates that applicants for DDR must submit to a medical panel examination, three medical doctors examined Teriaca, but they could not agree on whether she was disabled as a result of a work-related injury. Ultimately, the medical panel certified to the Board that Teriaca was not eligible for DDR and her request was denied by the Board. Unaccepting of this decision, Teriaca sought both a review and, later, an appeal. The independent examiner disagreed with the earlier decision, principally because one of the doctors changed his opinion, and the Board eventually granted Teriaca's request for DDR on August 1, 1988, with an effective date in January 1988.

¶ 4. After being granted DDR, recipients under MCC § 36-05-3-c-l-a are required to have an annual physical examination. As a result, Teriaca was examined periodically after being granted DDR. However, while her DDR was continued, the doctors involved in these medical reviéws were not always unanimous in finding Teriaca disabled as a result of work-related injuries. Over the years, several of the doctors suggested that her complaints were possibly the result of psychiatric problems. In 1989, the Board suspended Teriaca's benefits and ordered her to return to work on limited duty. Her benefits, however, were subsequently restored. She continued to be eligible for DDR benefits until 2000, when the Board accepted the recommendation of the majority of the medical panel that she was no longer suffering from her work-related injuries. She was not able to return to work full-time, however, because of other non-work-related medical conditions.

¶ 5. After the Board determined that Teriaca was no longer eligible for DDR benefits, Teriaca availed herself of the procedure set forth in Wis. Stat. § 68.09 (1999-2000), and demanded an independent review of her case. The independent reviewer affirmed the findings of the Board, determining that her complaints were "subjective in nature." Teriaca then appealed that decision, and the Board's decision was ultimately affirmed by an independent hearing examiner. The Board adopted the hearing examiner's recommendation and Teriaca's application for the continuation of her DDR benefits was denied. Teriaca then sought certiorari review. The trial court affirmed the Board's decision.

Richard Jasso

¶ 6. Jasso became a City of Milwaukee police officer in 1980. He injured his knee in late 1980 while he was pursuing a suspect. In 1983, he also injured his left elbow during combat training. Approximately one year later, he applied for DDR benefits. His application was granted in May 1985. He continued on DDR until 1989, when he was removed from DDR status. Like Teriaca, Jasso was reinstated by court order after several other DDR recipients challenged the Board's decision to require them to return to the workforce on limited duty. Between 1990 and 2000, Jasso was reexamined to determine if he still suffered from a work-related injury. As a result of these physical exams, he continued to receive DDR benefits. In 2000, a medical reexamination was requested of Jasso. After his examinations, a majority of the medical panel certified him as ineligible for DDR. The Board accepted the recommendation of the medical panel and terminated Jasso's DDR benefits. Jasso then filed for review and an independent reviewer affirmed the Board's termination. Jasso appealed the Board's decision to a hearing examiner, who also affirmed the Board's decision. Afterwards, Jasso sought certiorari review. The trial court reversed the Board's decision, ruling that the Board proceeded on an improper legal' standard.

II. Analysis.

¶ 7. On appeal from a decision on a writ of certio-rari, this court reviews the record and findings of the administrative board, not the judgment and findings of the trial court. See State ex rel. Harris v. Annuity & Pension Bd., 87 Wis. 2d 646, 651, 275 N.W.2d 668 (1979). When we review a decision of the Board, the scope of our review is limited to the four issues presented on a common law writ of certiorari: "(1) [wjhether the Board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary; oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Ruthenberg v. Annuity & Pension Bd., 89 Wis. 2d 463, 472, 278 N.W.2d 835 (1979) (footnote omitted). Thus, we decide the merits here independent of either of the trial court decisions.

¶ 8. Members in active service "who shall become permanently and totally incapacitated for duty as the natural and proximate result of an injury occurring at some definite time and place while in the actual performance of duty" are eligible for DDR. MCC § 36-05-3. This particular DDR plan pays to the recipient 75% of the current annual salary and all salary adjustments authorized for the position, as well as health insurance coverage. See MCC § 36-05-3-c-l-c.

¶ 9. Officers Teriaca and Jasso contend that their DDR benefits should be reinstated because the Board's stance, that a police officer remains eligible for DDR only if the disability is caused by a work-related injury, was incorrect. Both claimants first seek to overturn the Board's decision on the grounds of issue preclusion. Alternatively, Teriaca and Jasso claim that the wording of MCC § 36-05-3-c, establishing the circumstances in which a DDR recipient can be restored to active duty, supports their position that a disability from a non-work-related injury is sufficient to continue DDR. Further, Teriaca and Jasso contend their terminations from DDR deny them a contractual, statutory and constitutionally-vested right. Finally, they argue that insufficient evidence was presented to support the Board's decisions.

¶ 10. We determine that the application of the issue preclusion doctrine to these types of proceedings is inappropriate. Thus, we look to the language of the retirement act. We conclude the phrase "fit for service" is ambiguous. In harmonizing the phrase with other ordinances touching on the City's retirement plans, we determine that the intent of DDR is to allow only those with a work-related disability to remain on duty disability retirement. Further, no contractual, statutory or constitutional right has been violated, and sufficient evidence exists to support the Board's decisions that Teriaca's and Jasso's disabilities are non-work-related.

A. Issue Preclusion

¶ 11. Both Teriaca and Jasso urge this court to apply the rules of issue preclusion and require the Board to follow earlier circuit court decisions interpreting the "fit for service" language. The officers submit that the scope of review of a medical reexamination under MCC § 36-05-3-c-l-b has already been resolved in Ferrill v. City of Milwaukee, Milwaukee Employes' Retirement System/Annuity & Pension Board, Milwaukee County Circuit Court No. 99-CV-8795 (1999), and Lofquist v. City of Milwaukee, Milwaukee Employes' Retirement System/Annuity & Pension Board, Milwaukee County Circuit Court No. 00-CV-004887 (2001). In Ferrill and Lofquist, the trial court restored the duty disability retirement benefits of the appellants in those cases, concluding that language in MCC § 36-05-3-c-l-b obligated the courts to do so. Teriaca and Jasso assert that all of the elements for the application of the issue preclusion doctrine are found here.

¶ 12. "Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in the prior action." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). The general rule on issue preclusion is: "When an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action . . . whether on the same or a different claim." Precision Erecting, Inc. v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 301, 592 N.W.2d 5 (Ct. App. 1998) (quoting Restatement (Second) of Judgments § 27 (1982)).

¶ 13. However, any application of the issue preclusion doctrine must comport with principles of fundamental fairness. See Precision Erecting, 224 Wis. 2d at 304. The Supreme Court has adopted a five-factor fundamental fairness test. See id. at 305. A court may consider some or all of the following factors when making the decision to invoke issue preclusion:

(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment;
(2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue;
(4) have the burdens of persuasion shifted such that a party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or
(5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?

Id. at 305 (citations omitted).

¶ 14. Whether courts may apply issue preclusion presents a question of law, which we review independently of the trial court. See Michelle T v. Crozier, 173 Wis. 2d 681, 686, 495 N.W.2d 327 (1993). We decline to apply the issue preclusion doctrine here.

¶ 15. In refusing to apply issue preclusion, we expand our previous holding in Gould v. DHSS, 216 Wis. 2d 356, 576 N.W.2d 292 (Ct. App. 1998), where we refused to apply the doctrine of issue preclusion to state administrative agencies, see id. at 370, to include boards administrating pensions and annuities. As we noted in Gould-.

[CJourts ha[ve] long recognized in various contexts that the government is not in the same position as a private litigant, both because of the geographic breadth of government litigation and the number and nature of the issues the government litigates, making it more likely that the government, as opposed to a private litigant, will be involved in litigation against different parties that, nonetheless, involve the same legal issues.

Id. at 368-69 (citing United States v. Mendoza, 464 U.S. 154, 159-60 (1984)).

¶ 16. In Gould, we adopted the Mendoza rationale for refusing to apply issue preclusion against the federal government. The Mendoza court reasoned that applying issue preclusion against the government would: (1) "thwart the development of important questions of law by freezing the first final decisions on a particular legal issue[;]" and (2) force the government "to abandon its policy of balancing many factors in deciding whether to appeal adverse rulings, leading to appeals of every adverse decision." See Gould, 216 Wis. 2d at 369.

¶ 17. The Gould reasoning applies equally well here. The Board's position as a litigant is sufficiently similar to that of an administrative agency and significantly different from that of a private litigant, such that the economy of interests underlying a broad application of issue preclusion does not justify the application of the doctrine against the Board. The Board should not be forced to follow decisions with different facts and different circumstances from those present here. As the Teriaca trial court aptly observed:

The court is not persuaded that the doctrine of issue preclusion applies here. While Ferrill did involve the Board as a party, and the Board had the opportunity to appeal the decision, other factors are more compelling. The individual circumstances of a person seeking judicial review of the termination of her duty disability benefits are documented in the administrative record. The medical records and physician reports, as well as the recommendations of the medical panel and the hearing examiner are unique to each individual. The Ferrill court made a determination that, based on the specific facts in the administrative record, the Board had impermissibly gone outside the scope of review. That is, the decision addressed a mixed question of fact and law. This court does not have the opportunity to review and compare the records in the two matters. Further, where both parties are not the same, or the facts giving rise to the matter are not identical, this court is not bound by the decision of another branch of the circuit court.

Because we decline to apply the issue preclusion doctrine, we now address the disputed language's meaning.

B. Ordinance Interpretation

¶ 18. The Board removed Teriaca and Jasso from DDR because their most recent medical examinations revealed that they were no longer disabled by their employment injuries, although they were unable to return to full-duty police work because of other medical conditions or injuries. The disputed issue in these combined appeals revolves around the following language found in MCC § 36-05-3-c-l-b:

Case Review. In the event a member receiving a duty disability retirement allowance is later determined to be fit for service he [or she] shall be restored to service in his [or her] department and he [or she] shall no longer be entitled to receive a duty disability retirement allowance.

(Emphasis added.) Teriaca and Jasso submit that, under the "fit for service" standard, a recipient continues to be eligible for DDR even if the recipient no longer suffers from the original work-related disability. They contend that because they are not "fit for service," even though they no longer have the original work-related disability, the Board erred in removing them from the ranks of DDR recipients. Thus, the scope of our review touches on the second question found in the Ruthen-berg test - did the Board act according to law? See Ruthenberg, 89 Wis. 2d at 472.

¶ 19. Teriaca and Jasso maintain the words "fit for service" are not ambiguous. When interpreting an ordinance, the rules of statutory construction are used. See Schroeder v. Dane County Bd. of Adjustment, 228 Wis. 2d 324, 333, 596 N.W.2d 472 (Ct. App. 1999). If the language of the ordinance is clear, then this court applies the language to the facts of the case. Id. When the language is ambiguous, the court resorts to judicial construction to ascertain and carry out the legislature's intent. See Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 201, 496 N.W.2d 57 (1993). "A statute is ambiguous if reasonably well-informed persons could understand it in two or more ways." Id. Once a determination has been made that the ordinance is ambiguous, the court may examine the history, context, subject matter, scope, and object of the ordinance. Id. at 202.

¶ 20. Other rules speak to our obligations when engaging in statutory construction. First, a court "must apply statutes so that every word is given meaning and effect." Wisconsin Patients Comp. Fund v. Physicians Ins. Co. of Wis., Inc., 2000 WI App 248, ¶ 10, 239 Wis. 2d 360, 620 N.W.2d 457. Courts should also read the entire statute together and harmonize its parts. See Walag v. Town of Bloomfield, 171 Wis. 2d 659, 665, 492 N.W.2d 342 (Ct. App. 1992). Finally, courts are obligated to read and interpret statutes so as to avoid absurd results. Id. at 663.

¶ 21. Here, we are satisfied the "fit for service" phrase is ambiguous. Our review of the language and the context in which it is found leads us to conclude that the phrase is ambiguous. Since DDR pensions are awarded only when a member "become [s] permanently and totally incapacitated for duty as the natural and proximate result of an injury occurring at some definite time and place while in the actual performance of duty," does the ordinance's wording assume that the retiree has no other disabilities? See MCC § 36-05-3-a. Or, should the phrase be read literally to mean that any disability permits one to continue on DDR? These perplexing questions convince us that "reasonably well-informed persons could understand it in two or more ways." Village of Shorewood, 174 Wis. 2d at 201.

¶ 22. In deciphering what the ordinance means, we find the Board's argument most persuasive:

The only interpretation which gives "meaning and effect" to the medical exam process, as well as the other language in the applicable provisions (secs. 36-05-3-c, 36-05-3-c-1-a, 36-05-3-c-1-b, MCC), is that the medical exam is for the purpose of determining if the work-related injuries have subsided, and if the work injuries have subsided such that the retiree is fit for service on the basis of his [or her] work-related injuries, his [or her] duty disability ceases and he [or she] is restored to active service in the department. Moreover, limiting the inquiry of whether the retiree is "fit for service" to whether the retiree has recovered from his work-related disabling injury harmonizes not only the provisions in Ch. 36, MCC, relating to duty disability, but also with other provisions of Ch. 36, MCC.

¶ 23. The clear intent of the retirement plan is to offer those employees disabled while performing service for the City a better pension than those disabled for other reasons. Compare MCC § 36-05-2 with MCC § 36-05-3. MCC § 36-05-2 provides for an ordinary disability retirement plan which requires no showing that the injury is work-related. If the work-related injury requirement is interpreted as proposed by Teriaca and Jasso, then there is no distinction between those retirees who suffer from a non-work-related disabling injury or condition, and those who have recovered from their work-related injury or condition but continue to be disabled by their non-work-related injury or condition; yet, those retirees on ordinary disability are paid substantially less than those on DDR. The clear intent of the plan is to distinguish between those who continue to be disabled as the result of a work injury and those who have other disabilities that prevent them from rejoining the work force. To decide otherwise would be unfair to others on DDR, as well as to those on ordinary disability pensions, and render the plans absurd.

¶ 24. As the independent hearing examiner in both cases reasoned, the provision permitting reexamination does not state that "the examining process is solely for determining if an employee can qualify for full duty." Rather, the hearing examiner surmised that because MCC § 36-05-3-a, authorizing DDR benefits, speaks of a member "who shall become permanently and totally incapacitated for duty as the natural and proximate result of an injury occurring at some definite time and place," the periodic reevaluations are intended to "ascertain if specific work related injuries continue to incapacitate a recipient of the benefits, presumably with the view that if they do not, then the benefits cease."

¶ 25. The examiner concluded that to interpret the ordinance's language "fit for service" to mean only "fit for full duty," without consideration of whether the recipient continues to be disabled as a result of a work-related injury "is to vitiate and nearly empty the meaning and effect of MCC 36-05-3-a and 36-05-3-c-1-a." We agree. The Board's interpretation of the ordinance, that Teriaca and Jasso were no longer eligible for DDR benefits because their work-related injuries had subsided, resulting in their being fit for service as a consequence, is correct. Thus, the Board properly terminated Teriaca and Jasso from the ranks of DDR recipients.

C. Contractual, Statutory and Constitutional Rights

¶ 26. Teriaca and Jasso argue that the termination of their DDR is a violation of their contractual, statutory, and constitutionally-vested rights. They submit that they have a vested right in their pension benefits and, pursuant to MCC § 36-13-2-e, the Board is prohibited from changing the retirement rules from those in place at the time of their hire.

¶ 27. MCC § 36-13-2-e provides, in relevant part:

No application nor interpretation of the provisions of this act or rule of the board shall be either effected, instituted or promulgated retroactively or applied in such a manner as to such member, retired member or beneficiary so that it results in any form, in the diminution, loss or partial loss or reduction of any credit, benefit or retirement allowance to which such person was or is entitled because of prior interpretation or application of the provisions of this act or rule whether general or specific. The protection, safeguarding and the security of the rights, benefits and allowances expressed in this subsection are and shall be deemed fully vested, contractual and binding upon the employer and guaranteed by it.

¶ 28. While we agree that Teriaca and Jasso have a vested right in their pensions and the City's ordinances forbid changing the rules, we disagree with their contention that the Board has either changed the mies or attempted to relitigate the initial disability award to cure a prior mistake. Their argument basically rehashes their other contentions. They argue that since "fit for service" has already been determined by trial courts in other cases, the "ordinance does not allow the Board to relitigate the issues determined in the initial disability award or to cure an alleged mistake, as the Ferrill and Lofquist courts held."

¶ 29. Teriaca and Jasso have developed no argument to sustain their constitutional challenge. Further, their DDR pension was granted subject to an annual medical examination and termination if they were found no longer eligible. They no longer have their originating work-related disabilities. The Board has maintained the same position concerning DDR throughout the duration of their pension periods. This is not a situation where the Board has changed the rules or regulations. Consequently, no contractual, statutory or constitutional violation has occurred.

D. Sufficient Medical Proof

¶ 30. Finally, Teriaca and Jasso claim insufficient evidence was presented to sustain the Board's determinations that they no longer had work-related injuries. In reviewing the sufficiency of the evidence to determine whether the Board properly terminated a DDR pension, this court applies the substantial evidence test. See Harris, 87 Wis. 2d at 652. Applying the substantial evidence test, we must affirm the Board's findings "if they are supported by any credible and substantial evidence in the record, even if they are contrary to the great weight and clear preponderance of the evidence." Hoell v. LIRC, 186 Wis. 2d 603, 612, 522 N.W.2d 234 (Ct. App. 1994). This court cannot substitute its judgment for that of the Board regarding "the weight or credibility of the evidence on any finding of fact." Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App. 1997). Rather, it is the function of this court to "examine the record for credible and substantial evidence which supports the agency's determination." Id.

¶ 31. The record provides ample evidence to sustain the Board's determinations that Teriaca and Jasso were no longer disabled as a result of work-related injuries.

¶ 32. Two of the three doctors who most recently examined Teriaca opined that their examinations revealed no physical basis for her complaints of pain. Teriaca has never had any surgery since returning to DDR in 1991, and she also has had no medical treatment for her injuries or complaints. Even the third examining doctor believed that Teriaca's condition had improved, but differed with the other two doctors because he felt Teriaca was unable to work full-time. The two doctors' opinions were supported by the fact that Teriaca has been working limited duty since her DDR termination. Moreover, the Board's conclusion that Teriaca's complaints of pain were not credible because of Teriaca's inconsistent pattern of pain, combined with her failure to seek any medical treatment and the total lack of objective evidence to support her complaints, was reasonable. Thus, the Board properly terminated her DDR.

¶ 33. Two of the three doctors on Jasso's medical panel certified that he was no longer incapacitated for duty as a result of his work injuries. Although the third doctor recommended Jasso be continued on duty disability retirement, the doctor made his recommendation based on Jasso's other non-work-related medical problems, not his work-related injuries. As the Board advances in its brief:

The fact that respondent has full range of motion of his left knee and left elbow, no orthopedic abnormality of either the left knee or left elbow, full grip strength of both arms, full strength in the lower extremities and no evidence of any neurological problems clearly supports the conclusions of Dr. Seter and Dr. Aschliman that respondent is no longer incapacitated for work because of his work injures to his left elbow and left knee.

¶ 34. The Board's finding that Jasso was no longer suffering from a work-related injury was supported by the evidence. Consequently, we affirm both of the Board's terminations.

By the Court. — Order affirmed; order reversed.

       The Board was established by Chapter 396 of the Laws of 1937, the provisions of which have been codified in Chapter 36 of the Milwaukee City Charter. This chapter provides retirement benefits to MERS's members, including employees of the City of Milwaukee.

       Wisconsin Stat. § 68.09 provides:
      Review of determination. (1) Initial determination. If a request for review is made under s. 68.08, the determination to be reviewed shall be termed an initial determination.

        (2) Who shall make review. A review under this section may be made by the officer, employee, agent, agency, committee, board, commission or body who made the initial determination. However, an independent review of such initial determination by another person, committee or agency of the municipality may be provided by the municipality.
      (3) When to make review. The municipal authority shall review the initial determination within 15 days of receipt of a request for review. The time for review may be extended by agreement with the person aggrieved.
      (4) Right to present evidence and argument. The person aggrieved may file with the request for review or within the time agreed with the municipal authority written evidence and argument in support of the person's position with respect to the initial determination.
      (5) Decision on review. The municipal authority may affirm, reverse or modify the initial determination and shall mail or deliver to the person aggrieved a copy of the municipal authority's decision on review, which shall state the reasons for such decision. The decision shall advise the person aggrieved of the right to appeal the decision, the time within which appeal shall be taken and the office or person with whom notice of appeal shall be filed.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Andre Bolden, Defendant-Appellant.

    Court of Appeals

      No. 02-2974-CR.

      Submitted on briefs May 6, 2003.

    — Decided June 10, 2003.

    2003 WI App 155
    (Also reported in 667 N.W.2d 364.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark S. Rosen of Rosen and Holzman, Waukesha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Maureen McGlynn Flanagan, assistant attorney general. .
    Before Wedemeyer, EJ., Fine and Curley, JJ.

       Petition to review denied 8-13-03.

   FINE, J.

¶ 1. Andre Bolden appeals from a judgment entered on a jury verdict convicting him of attempted robbery with the use of force, see Wis. Stat. §§ 943.32(1)(a) and 939.32, and from the trial court's order denying his motion for postconviction relief. He claims that his lawyer gave him ineffective assistance. We affirm.

I.

¶ 2. Bolden was charged and convicted for accosting Garrett Pauers and trying to rob him, but was interrupted when another person, Kurt Sampson, appeared. All three testified at the trial.

¶ 3. During Bolden's testimony, the State asked him about Pauers's earlier testimony, and, when Bolden contradicted that testimony, the State responded: "So Mr. Pauers is lying." Bolden replied, "Right." The State asked Bolden a similar question about the testimony of police sergeant David Moldenhauer, who had testified about his interaction with Bolden: "So that's a lie."

¶ 4. The State also asked Bolden about Sampson's testimony, and when Bolden indicated that he disagreed with that testimony as well, the State asked: "He is lying?" When Bolden said that the officer was not telling the truth, the State responded:

Q. So if I understand, Mr. Bolden, out of the witnesses we heard in this trial, Mr. Pauers is either lying or mistaken about the fact [sic; the State is referencing Bolden's version] that you guys had this mutually agreed-upon fight, is that fair to say?
A. That's fair.
Q. And Mr. Sampson is mistaken in that you never were on top of Mr. Pauers and that you never were choking Mr. Pauers, is that fair to say?
A. That's fair to say.
Q. And that Mr. Sampson is mistaken in the sense that you weren't driving around on Meinecke shortly before this altercation with Mr. Pauers, is that fair to say?
A. Right.
Q. And that Sergeant Moldenhauer is mistaken when you mentioned anything about robbing Mr. Pauers?
A. Right.

¶ 5. Bolden faults his trial lawyer for not objecting to the State's questions, and, also, for not moving for a mistrial.

II.

¶ 6. Every criminal defendant has a Sixth-Amendment right to the effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 686 (1984), and a coterminous right under Article I, § 7 of the Wisconsin Constitution, State v. Sanchez, 201 Wis. 2d 219, 226-236, 548 N.W.2d 69, 72-76 (1996). In order to establish a violation of this right, a defendant must prove two things: (1) that his or her lawyer's performance was deficient, and, if so, (2) that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687; see also Sanchez, 201 Wis. 2d at 236, 548 N.W2d at 76. In assessing a defendant's claim that his or her counsel was ineffective, a court need not address both the deficient-performance and prejudice components if the defendant does not make a sufficient showing on one. Strickland, 466 U.S. at 697; Sanchez, 201 Wis. 2d at 236, 548 N.W.2d at 76. We conclude that although the State's questions were not the most polished or persuasive, they were within the range of permissible cross-examination. Accordingly, the trial lawyer's representation of Bolden was not deficient.

¶ 7. In urging reversal, Bolden argues that State v. Romero, 147 Wis. 2d 264, 267-270, 277-279, 432 N.W.2d 899, 900-901, 904-905 (1988), and State v. Haseltine, 120 Wis. 2d 92, 94-96, 352 N.W.2d 673, 675-676 (Ct. App. 1984), make what the State did improper. We disagree.

¶ 8. Both Romero and Haseltine held that the State may not bolster the credibility of its witnesses by asking someone with professional expertise to assess whether the witnesses are being truthful. Romero, 147 Wis. 2d at 268-270, 277-279, 432 N.W.2d at 900-901, 904-905 (testimony by social worker and police officer that the alleged victim was being truthful); Haseltine, 120 Wis. 2d at 95-96, 352 N.W.2d at 675-676 (psychiatrist testified that there " 'was no doubt whatsoever'" that the defendant's daughter "was an incest victim"). The concern was that the proffered expertise would, as phrased by Romero, "tend[ ] to usurp the jury's role." Romero, 147 Wis. 2d at 278, 432 N.W.2d at 905. Conversely, asking a defendant whether his or her accusers, a citizen witness, or an investigating police officer are telling the truth has no tendency to usurp the jury's function in assessing credibility; indeed, if anything, it would help the jury evaluate each witness's demeanor, and we so held in State v. Jackson, 187 Wis. 2d 431, 437-438, 523 N.W.2d 126, 129 (Ct. App. 1994).

¶ 9. Bolden argues, however, that Jackson was overruled by another court of appeals decision, State v. Kuehl, 199 Wis. 2d 143, 147-151, 545 N.W.2d 840, 841-843 (Ct. App. 1995). Kuehl does purport to overrule Jackson, but under this court's "power," as recognized by Cook v. Cook, 208 Wis. 2d 166, 189-190, 560 N.W.2d 246, 256 (1997), it could not do so: "[W]e conclude that the constitution and statutes must be read to provide that only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals." See also In re Court of Appeals of Wisconsin, 82 Wis. 2d 369, 371, 263 N.W.2d 149, 149-150 (1978) ("The published decision of any one of the panels has binding effect on all panels of the Court."); American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶ 18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 ("This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so."), review granted, 258 Wis. 2d 106, 655 N.W.2d 127.

¶ 10. Although Jackson and Kuehl preceded Cook, this makes no difference. Cook based its ruling on "power" not policy. If the court of appeals lacked the "power" to overrule or modify its prior decisions after Cook, it certainly also lacked that power before Cook. This was specifically recognized by In re Court of Appeals, which, as we have seen, noted in 1978 that a published decision by one panel was "binding" on the other panels. See Garfoot v. Fireman's Fund Ins. Co., 228 Wis. 2d 707, 722-723, 599 N.W.2d 411, 418-419 (Ct. App. 1999) (recognizing that Cook was applicable to cases decided before Cook).

¶ 11. Kuehl lacked the power to overrule Jackson. Under Jackson, the State's questions here did not violate the Haseltine rule. Accordingly, Bolden's trial lawyer was not deficient for not objecting to those questions or moving for a mistrial.

By the Court. — Judgment and order affirmed.

       The court transcript does not have a question mark at the en'd of the question.

       The court transcript also does not have a question mark at the end of this question.


author: SCHUDSON, J.

text:
    In the Matter of the Estate of Audrey R. Schmitz, Deceased: Mary Klauser, Appellant, v. Robert Schmitz, John Schmitz, Paul Schmitz, Matthew Schmitz, Michael Schmitz, and Michelle Schmitz, Respondents.
    Court of Appeals

      No. 02-3260.

      Submitted on briefs May 23, 2003.

    — Decided June 10, 2003.

    2003 WI App 157
    (Also reported in 667 N.W.2d 862.)

      On behalf of the appellant, the cause was submitted on the briefs of Daniel W. Morse of Morse & Shiller, Ltd., of Mequon, WI.
    On behalf of the respondents, the cause was submitted on the brief of Vicki S. Schaut, of Milwaukee, WI.
    Before Wedemeyer, PJ., Fine and Schudson, JJ.
   SCHUDSON, J.

¶ 1. Mary Klauser appeals from the circuit court order granting the objection to her appointment as personal representative of the estate of her mother, Audrey R. Schmitz, and appointing Attorney Brian F. McElligott in her place. Klauser argues that the court erred in concluding that, under Wis. Stat. § 856.23(l)(e) (2001-02), she was "unsuitable" to act as personal representative due to her possible conflict of interest with the estate regarding assets she and her mother held jointly. Klauser is correct and, therefore, we reverse.

I. BACKGROUND

¶ 2. For many years preceding her death, Audrey Schmitz lived next door to her daughter, Mary Klauser, ultimately relying on her for various services and aspects of daily care. A little more than one year before her death, Mrs. Schmitz placed a checking account and a savings account (both of which had previously been in her and her husband's names and, following his death, in her name alone) in her and Klauser's names, jointly. Mrs. Schmitz's will designated Klauser as personal representative of the estate.

¶ 3. Mrs. Schmitz's will was admitted to probate without objection. Following the filing of the application for approval of the personal representative, however, six of Mrs. Schmitz's beneficiaries — Robert, John, Paul, Matthew, Michael, and Michelle Schmitz — objected to Klauser's appointment, claiming that she was improperly excluding the joint accounts as well as other assets from the estate. As a result, the circuit court appointed Attorney Brian F. McElligott as special administrator for the purpose of determining which assets should be subject to probate. Attorney McElIigott issued a report concluding that the checking account and savings account, jointly held in the names of Audrey Schmitz and Klauser, should be included in the estate. He reached his conclusion based on what he believed was Mrs. Schmitz's limited competency at the time Klauser's name was added to the accounts. His report also suggested that the circumstances surrounding the issuance of "several large checks ... be further investigated."

¶ 4. When Klauser continued to seek approval of her appointment as personal representative, the circuit court held a hearing on the Schmitzs' objection. Klauser testified that despite Attorney McElligott's assessment of the bank accounts, she would exclude them from the estate. She explained, "[M]y mother had said she wanted me... to eventually get those." Due to Klauser's concession of her intention to exclude the accounts, the court found that her personal interests conflicted with her duties as personal representative. Therefore, the court disqualified Klauser as personal representative and appointed Attorney McElIigott in her place.

II. DISCUSSION

¶ 5. Klauser argues that the circuit court erred in disqualifying her as the personal representative of her mother's estate. She contends that her mother's wishes should be honored and that, under Wis. Stat. § 856.23(l)(e), her asserted stake in the two bank accounts did not render her "unsuitable" to serve as personal representative. We agree.

¶ 6. Wisconsin Stat. § 856.23 sets forth the bases on which a person may be disqualified from serving as the personal representative of an estate. The parties agree that the only basis relevant to this case is § 856.23(l)(e), which provides that the designated personal representative may be disqualified if he or she is: "A person whom the court considers unsuitable for good cause shown." Thus, in this case, the issue simply is whether the circuit court erred in concluding that Klauser was "unsuitable for good cause shown."

¶ 7. Although "[tjhere must be a measure of discretion in determining whether the particular conflict of interest is serious enough to prevent appointment or compel removal" of a personal representative, see Keske v. Marshall & Ilsley Bank, 18 Wis. 2d 47, 55, 117 N.W.2d 575 (1962), a circuit court's discretion to disqualify a personal representative is limited. As the supreme court explained in 1942:

"It may therefore be stated as a general rule that the person named as executor in a will is entitled to qualify, unless by reason of his mental condition or some legal disability he is prevented from acting as executor. The subject is now regulated by statute in most jurisdictions, which in some instances have modified this general rule. The principle still prevails that no discretion is vested in courts with respect to refusing to grant letters testamentary to the persons nominated in a will, unless such persons are expressly disqualified, or unless such discretion is vested by law. The statutes [throughout the United States] are, in the main, broadly inclusive as to the persons qualified to act as executors and have been liberally interpreted by the courts to carry out the expressed wishes of testators with regard to the persons who should administer their estates."

Svacina v. East Wis. Tr. Co., 239 Wis. 436, 446, 1 N.W.2d 780 (1942) (emphasis added; quoted source omitted). Indeed, "a statute specifying the grounds of removal [of a personal representative] is usually held to preclude a removal upon grounds not specified." Holzhauer v. Zartner, 183 Wis. 506, 509, 198 N.W. 363 (1924). The interpretation and application of the statutory basis for disqualification of a personal representative as "unsuitable for good cause shown" present questions of law we review de novo. See State ex rel. First Nat'l Bank & Trust Co. of Racine v. Skow, 91 Wis. 2d 773, 777-79, 284 N.W.2d 74 (1979); see also Svacina, 239 Wis. at 446-47.

¶ 8. Since the enactment of the probate code in 1969, our courts have not considered whether a personal representative is "unsuitable for good cause shown" because of a possible conflict of interest with the estate regarding the ownership of certain assets. Approaching that issue, however, we begin by acknowledging our supreme court's declarations, offered repeatedly many years ago, of an unwavering principle: "It has ever been the policy of the law of [Wisconsin] that every citizen making a will has the right to select according to his own judgment the person or persons whom he would have execute it." Svacina, 239 Wis. at 442. Indeed, "[e]xcept for very cogent reasons the courts follow the maxim[,] 'Whom the testator will trust so will the law.'" Holzhauer, 183 Wis. at 512.

¶ 9. More recently, and most significantly for purposes of this appeal, the supreme court, interpreting "unsuitable for good cause shown," declared that "a nominee may not be disqualified from serving as personal representative except upon grounds which pertain to the nominee's capacity or competence to conduct the business of the estate." Skow, 91 Wis. 2d at 782. Further, the supreme court clarified that "unsuitable for good cause shown" is not a broad standard under which courts would "question the judgment of the testator and inquire into the makeup of the estate, the desires of the beneficiaries or heirs, comparative costs, the credentials of those desiring to be appointed personal representative, and the relative 'suitability' of those candidates seeking to be appointed personal representative." Id. at 781 (emphasis added).

¶ 10. Here, the circuit court found Klauser unsuitable to serve as personal representative not because of any failure of "capacity or competence to conduct the business of the estate," see id. at 782, but, rather, due to what the court viewed as the conflict between her interests and those of the estate. Thus, the court disqualified Klauser for what Show specified as an inappropriate basis — a question about Klauser's judgment regarding "the makeup of the estate." Id. at 781. Such a question or potential conflict, however, may be as commonplace as the countless situations in which a deceased jointly-titled assets to the very person entrusted with responsibility under a will. Indeed, such "conflict[s] of interests in some cases may not be serious," and may not warrant disqualification, particularly where they "have been known to the testator at the time of the execution of the will and may not have been regarded by [the testator] as an obstacle to the choice made." Holzhauer, 183 Wis. at 511; see also Svacina, 239 Wis. at 445-46 (executrix should not have been disqualified based on her possible indebtedness to the estate, partly because the indebtedness "was known by the mother at the time she made her will"); Oak Park Trust & Sav. Bank v. Tressing, 86 Wis. 2d 502, 516, 273 N.W.2d 271 (1979) (widow's conflict of interest with estate did not preclude her designation as joint executor where "[n]othing in the record. . . established] that [she] would not administer the estate fairly").

¶ 11. Thus, not surprisingly, commentators, citing many decisions, including our supreme court's in Svacina, emphasize:

It is well established as a general rule that the fact that a testamentary nominee as executor has a personal interest or standing which is adverse or antagonistic to that of the decedent's estate or the beneficiaries thereof is not to be deemed a disqualification for appointment as such, in the absence of a statute so providing or investing the court with discretion to refuse the appointment for such cause.

Annotation, Adverse interest or position as disqualification for appointment as personal representative, 18 A.L.R.2d 633, 634 (1951).

¶ 12. Nevertheless, the Schmitzs argue that "a finding of unsuitability is not limited solely to concerns of incapacity or incompetency." And they are correct. Given the myriad circumstances in which conflicts of interests may arise, we acknowledge, as the supreme court noted, that "[a] conflicting personal interest preventing an executor or administrator from doing his duty renders him unsuitable." Keske, 18 Wis. 2d at 52 (emphasis added). The supreme court explained:

A serious conflict between one's personal interest and an important duty of a personal representative may render adequate performance of that duty impossible. The situation may be one which [sic] the testator could not have foreseen. The particular duty may require immediate performance. The difficulty with the traditional definition of "legally competent" is that it appears to exclude this type of situation as a proper basis for refusal to appoint. It leads to the absurdity that the court might be required to appoint an executor which [sic] it should immediately remove.

Id. at 55. Thus, the Schmitzs correctly contend that "[i]f a nominated personal representative has a personal interest which prevents her from performing a duty as executor, the court should refuse the appointment."

¶ 13. Here, however, the Schmitzs failed to establish that Klauser had such a "personal interest." They did not establish that her claimed right to the bank accounts prevented her from doing her duty as personal representative. The mere fact that she disagrees with them about whether certain assets, jointly held in her name, should be included in the estate does not establish her incapacity or incompetency.

¶ 14. Moreover, our statutes provide the framework for addressing such disagreements. Under Wis. Stat. § 858.09, a court, on its own motion or "at the request of any person interested in the estate . . . may examine the personal representative" to determine whether an asset should be included in or excluded from an estate. See also Wis. Stat. § 862.13. Thus, a court can address concerns related to possible conflicts of interests and, where appropriate, require that accounts, like those here, be included in an estate. Significantly, however, a court can do so without disturbing the decedent's designation of a personal representative.

¶ 15. Thus, our statutes provide for the logical separation of two very distinct issues: whether the personal representative designated by the deceased should be disqualified; and whether certain property claimed by the personal representative should be included in the estate. Here, although the circuit court displayed commendable concern about Klauser's possible conflict of interest, it found her "unsuitable" for a reason beyond the reach of Wis. Stat. § 856.23(l)(e), as interpreted by Skow, and disqualified Klauser despite her lawful designation by her mother.

By the Court. — Order reversed.

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

       The order appointing Attorney McElIigott as special administrator was entered by Judge Elsa C. Lámelas. The order challenged on appeal was entered by Judge Kitty K. Brennan.

       Wisconsin Stat. § 856.23 provides:
      Persons who are disqualified. (1) A person including the person named in the will to act as personal representative is not entitled to receive letters if the person is any of the following:
      (a) Under 18 years of age.
      (b) Of unsound mind.
      (c) A corporation not authorized to act as a fiduciary in this state.
      (d) A nonresident of this state who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate and filed the appointment with the court.
      (e) A person whom the court considers unsuitable for good cause shown.
      (2) Nonresidency may he a sufficient cause for nonappointment or removal of a person in the court's discretion.

       The parties offer some discussion comparing "disqualif[i-cation]" of a personal representative under Wis. Stat. § 856.23, to "remov[al]" of a personal representative under Wis. Stat. § 857.15. They agree, however, that the dispositive issue in this appeal is whether Klauser was "unsuitable for good cause shown," under § 856.23(l)(e), and they rely on case law involving each of the two statutes (or predecessor versions) and terms. In this decision, therefore, we need not address any possible distinction between these statutory standards, and we also draw from the case law they cite.

       WISCONSIN Stat. § 858.09 states:
      Inventory, certification, examination in court. The personal representative shall certify under oath that the inventory, to the hest of the personal representative's knowledge, includes all property, encumbrances, liens or charges required to be shown therein. The court, at the request of any person interested in the estate or the property listed or on its own motion, may examine the personal representative on oath in relation thereto or in relation to any proposed addition thereto or deletion therefrom.

       WISCONSIN Stat. § 862.13 states: "Objections to account. At the hearing on an account of a personal representative or at any time prior thereto, any person interested may file objections to any item or omission in the account. All such objections shall be specific."


author: HOOVER, PJ.

text:
    Michael J. Scheidler and Kelly R. Scheidler, Plaintiffs-Respondents, v. American Family Mutual Insurance Company, Defendant-Appellant.

    Court of Appeals

      No. 02-3356.

      Submitted on briefs May 27, 2003.

    — Decided June 10, 2003.

    2003 WI App 159
    (Also reported in 667 N.W.2d 367.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Beverly Wickstrom and Richie, Wickstrom & Wachs, LLP, of Eau Claire.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Michael F. O'Brien and Kelly & Ryberg, S.C., of Eau Claire.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 10-1-03.

   HOOVER, PJ.

¶ 1. American Family Mutual Insurance Company appeals a declaratory judgment that coverage exists for damage caused by a sump pump to Michael and Kelly Scheidlers' home. Specifically, American Family contends that the trial court erred in construing the policy. We disagree and affirm.

Background

¶ 2. The facts are undisputed and the procedural history uncomplicated. American Family issued the Scheidlers a property insurance policy. The policy covered damage to the Scheidlers' physical dwelling under Coverage A.

¶ 3. The policy's "Perils Insured Against — Section I," which we refer to as the "breakdown clause," includes the following language:

We do not cover loss to the property described in Coverage A... resulting directly or indirectly from or caused by one or more of the following. ...
6. Other Causes of Loss:
a. wear and tear,. .. deterioration;
b. .. . mechanical breakdown;
If any of these caused water... to escape from a plumbing... system or household appliance, we cover loss caused by the water or steam.

¶ 4. The policy also includes the following exclusion, which we refer to as the "sump pump" exclusion:

The following exclusions apply to Coverage A - ... We do not insure for loss caused directly or indirectly by any of the following. . ..
9. Water Damage, meaning:
b. water ... which enters into and overflows or accidentally discharges from within a sump pump, sump pump well, sump pump well discharge system or other type system designed to remove subsurface water which is drained from the foundation area ....

¶ 5. On April 14,2002, the Scheidlers sump pump malfunctioned, causing water to enter the home and damage its physical structure as well as personal property. The Scheidlers sought coverage under their policy for the structural damage, which American Family denied on the basis of the sump pump exclusion. The Scheidlers brought suit, contesting American Family's determination by arguing that the breakdown clause applied.

¶ 6. The Scheidlers moved for declaratory judgment on the coverage issue. The trial court determined that there was a conflict between one general and one specific section of the policy creating an ambiguity to be construed against the insurer. American Family appeals.

Standard of Review

¶ 7. Interpretation of an insurance policy is a question of law that we review de novo. Ginder v. General Cas. Ins. Co., 2000 WI App 197, ¶ 4, 238 Wis. 2d 506, 617 N.W.2d 857. We interpret a policy according to its common and ordinary meaning as understood by a reasonable insured. Kremers-Urban Co. v. American Employers Ins. Co., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984). It is well established that when general and specific provisions are in conflict, the specific provision prevails. Ruppa v. American States Ins. Co., 91 Wis. 2d 628, 641-42, 284 N.W.2d 318 (1979). Here, the sole question is whether the sump pump exclusion or the breakdown clause is the more specific provision of the policy.

Discussion

¶ 8. American Family contends that the sump pump exclusion is the more specific provision because it names a certain type of plumbing equipment — the sump pump. The breakdown clause, on the other hand, only mentions the generic plumbing system. It also argues that adopting the Scheidlers' interpretation would render the sump pump exclusion superfluous. We disagree with both contentions.

¶ 9. We conclude, for two reasons, that the breakdown clause is the more specific clause. First, it is an exception to an exception. We start with the idea that an insurance contract generally provides coverage. Both the sump pump exclusion as well as the breakdown clause appear in sections excluding coverage: the sump pump exclusion is in the "Water Damage" section, and the breakdown clause is in the "Other Causes of Loss" section. The breakdown clause, however, is a further exception to the exclusion; in effect, it reinstates coverage for certain occurrences. This reinstatement of coverage is a more specific function of the breakdown clause than the sump pump exclusion's revocation of coverage.

¶ 10. Second, mechanical breakdowns are generally accidents, but not all accidents are necessarily mechanical breakdowns. In other words, the breakdown clause provides coverage for a specific type of accident that might otherwise not be covered— mechanical failure. Contrary to American Family's argument, this does not render the sump pump exclusion superfluous. If the sump pump experienced heavy pressure from an unusual volume of water causing accidental discharge, the sump pump exclusion might apply. Alternatively, if the sump pump simply could not pump water fast enough resulting in an overflow, the sump pump's accidental discharge language might apply as well.

¶ 11. American Family invites us to construe the policy based on what it contends American Family intended or bargained for. This ignores not only the rule we have already applied, that we interpret insurance policies from a reasonable insured's perspective, see Kremers-Urban, 119 Wis. 2d at 735, but also the rule that to go beyond the written language of the document we must determine there is an ambiguity. See Peace v. Northwestern Nat'l Ins. Co, 228 Wis. 2d 106, 140, 596 N.W.2d 429 (1999). Although the trial court so ruled, we do not conclude that the policy is ambiguous. Rather, we rely exclusively on the Ruppa rule regarding more specific provisions. Id. at 741-42.

¶ 12. We have concluded that the more specific provision of the policy — drafted by American Family— applies to cover damage to the Scheidlers' structural damage. We need not further analyze the policy.

By the Court. — Judgment affirmed.

       American Family concedes that the sump pump is included in the definition of "plumbing." It also does not challenge the claim that the pump broke down due to mechanical failure.

       Moreover, as we noted in Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106, 140, 596 N.W.2d 429 (1999),
      once a court finds ambiguity in the policy, it almost automatically rules against the insurer. The Catch-22 in insurance cases is that once ambiguity has been found, the insurer will lose even if the insurer has the better argument about how to construe its clause based on evidence outside the insurance contract.

       We may affirm on grounds other than those relied upon by the trial court. See Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995).


author: CANE, C.J.

text:
    Town of Union, Plaintiff-Respondent, v. City of Eau Claire, Defendant-Appellant.
    Court of Appeals

      No. 02-3393-FT.

      Submitted on briefs April 7, 2003.

    — Decided June 10, 2003.

    2003 WI App 161
    (Also reported in 667 N.W.2d 810.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen C. Nick of Eau Claire.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of John D. Hibbard of Eau Claire.
    Before Cane, C.J., Hoover, PJ, and Peterson, J.
   CANE, C.J.

¶ 1. The City of Eau Claire appeals an order granting a permanent injunction preventing it from constructing a storm sewer in the Town of Union. The City contends the trial court erred when it determined the sewer's construction required the Town's approval. We conclude the trial court did not err and therefore affirm the order.

Background

¶ 2. The Town of Union is located to the west of the City of Eau Claire. In August 2001, the City asked the Town for permission to place a storm sewer in the Town along town roads and under two private lots. The proposed sewer would connect two "pond facilities," both located in the City. In two letters to the Town, John Genskow, the City's deputy director of public works, said that the project was intended to mitigate drainage problems on the west side of the City and would drain land in both the City and the Town. The Town granted the City a permit to place the sewer under the roads, but denied the request regarding the private land, explaining the various reasons the Town considered the sewer plan shortsighted.

¶ 3. Despite the lack of approval, the City went ahead with its construction plans. The Town obtained an ex parte temporary injunction, which the City then moved to vacate. The City argued it did not need the Town's approval under Wis. Stat. § 60.52(1) because the portion of the sewer under the private lots was an "interceptor" that did not serve the lots. After a hearing, the court denied the motion to vacate and indicated it would likely make the injunction permanent.

¶ 4. The City then requested to make an offer of proof to augment the record. Genskow was the only person to testify. He said the proposed sewer had two "catch basin" inlets on the section that ran under the road, but none on the private property. According to Genskow, the only way water from the Town would drain into the sewer, besides the two inlets on the road, would be if it flowed into the City and its inlets.

¶ 5. The court made the injunction permanent. Pointing to Genskow's letters, it found that the proposed sewer would have inlets within the Town and, therefore, required Town approval under Wis. Stat. § 60.52(1) and Danielson v. City of Sun Prairie, 2000 WI App 227, 239 Wis. 2d 178, 619 N.W.2d 108. The City appeals.

Discussion

¶ 6. Central to this appeal's resolution is Wis. Stat. § 60.52(1) and our interpretation of it in Daniel-son. The interpretation of a statute is a question of law we review de novo. See Agnes T. v. Milwaukee County, 189 Wis. 2d 520, 525, 525 N.W.2d 268 (1995). In Danielson, a landowner and the township he lived in both sued the City of Sun Prairie after the city condemned part of the landowner's property for a sewer easement. Id., ¶ 2. They argued the city was required to obtain the town's permission before condemnation under § 60.52(1). Id. After analyzing the statute, we concluded the city did not need the town's permission because the sewer in that case did not impact the town's sewer service. Id., ¶ 13. We determined the phrase "extensions of [its] sewer or water system in the town," was ambiguous and, looking at the statutory history, concluded that it referred to sewers that provided services to town residents and not to sewers, such as the one in that case, that merely passed through the town without providing service to its residents. Id.

¶ 7. The rule established in Danielson is that a city extending its sewers through a town need not obtain the town's permission if the sewer does not provide services or have a financial impact on the town's residents. See id. In light of Danielson, the court's determination here that the sewers would drain land in the Town is critical to our resolution of the appeal.

¶ 8. In its decision, the court made these findings of fact:

2. The Defendant sought permission from the Plaintiff to construct the City's storm sewer on private land in the Town by letter signed by John R. Genskow, Deputy Director of the Department of Public Works, dated August 16, 2001, which letter stated in part that the project"... will drain land both in the City of Eau Claire and the Town of Union."
3. Another letter on the subject dated August 31, 2001, signed by Mr. Genskow also stated that the project "... will drain land both in the City of Eau Claire and the Town of Union" and a letter from City Attorney Nick dated October 31, 2001, stated that the improvements to the City's storm sewer system would be "... to the benefit of town and city residents."

¶ 9. The City does not dispute that there are inlets on the proposed sewer. Instead, the City argues that the project must be examined in its component parts. All that is at issue in this appeal, the City claims, is the portion of the sewer on the private lots; the Town already approved the portion located under the road. The City argues because the inlets are on the road portion, and there are none on the private lots, the Town cannot object to the portion on the private lots. We disagree.

¶ 10. We noted in Danielson:

Finally, it makes sense that the legislature intended to recognize a town's interest in an extension of a city's sewer or water system in the town if the extension would have an impact on town residents, such as providing and charging for water or sewer service or reviewing the quality of service provided. Giving a town a right to prior approval for that type of an extension is a logical way for the legislature to have provided for a town's interest in ensuring that the needs of its residents are met. However, a town would have no similar interest if there were no financial or provision of services impact on town residents.

Danielson, 239 Wis. 2d 178, ¶ 12.

¶ 11. The rationale of Danielson is that Wis. Stat. § 60.52 only requires town permission if the sewer project will impact the sewer service of the town and its residents. Here, the proposed project affects the drainage within the Town, and therefore has an impact on its residents. That the sewer does not drain directly from the private lots does not diminish the interest the Town has in ensuring that the drainage needs of its residents are met. The City needs the Town's permission to move forward with that part of the project on the private lots.

¶ 12. Finally, the City argues it should not be bound by the letters Genskow sent to the Town describing the project because they are merely the opinions of an employee and cannot be used to demonstrate that the City actually believed the contents or to bind the City to an agreement. Instead, the City contends that the project's plans and Genskow's testimony are determinative. We agree. The plans and the testimony show that the proposed sewer would provide service to the Town, and the letters support this determination. As a result, the City needed the Town's approval for all aspects of the project and the court properly issued the permanent injunction.

By the Court. — Order affirmed.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The City had already obtained a utility easement from the property owners.

       Wisconsin Stat. § 60.52(1) provides:
      Sewer and water systems of adjoining municipality. (1) With the approval of the town hoard, any city or village adjoining a town may construct and maintain extensions of its sewer or water system in the town. An extension of a sewer or water system under this subsection is subject to s. 62.175 (1) and the rights of abutting property owners.

       "A sewer interceptor is a large-diameter sewer pipe which is constructed deep in the ground and receives sewage from main-line sewers, but does not receive sewage from laterals or collectors." Danielson v. City of Sun Prairie, 2000 WI App 227, ¶ 2 n.2, 239 Wis. 2d 178, 619 N.W.2d 108.

       The Honorable Lisa Stark presided over the offer of proof.

       The findings of fact in the order making the injunction permanent do not refer to any evidence introduced at the offer of proof. It appears the order was drafted prior to the offer of proof.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Randy D. Stafford, Defendant-Appellant.
    Court of Appeals

      No. 02-0544-CR.

      Submitted on briefs April 23, 2003.

    — Decided June 11, 2003.

    2003 WI App 138
    (Also reported in 667 N.W.2d 370.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert G. LeBell of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Maura F.J. Whelan, assistant attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   BROWN, J.

¶ 1. Randy D. Stafford appeals from the judgment of conviction for second-degree sexual assault of a child and the orders denying his motions for postconviction relief and for reconsideration. Among other things, Stafford alleges on appeal that the mental health professional who conducted a psychological assessment of him, which was incorporated into the presentence investigation report (PSI) and admitted into evidence at the sentencing hearing, had a conflict of interest due to the fact that she had treated the victim in the case for the six months prior to her assessment of Stafford. Stafford submits that this conflict of interest is a new factor justifying the modification of his sentence. We conclude that the mental health professional did have a conflict of interest that was not recognized by the parties or the court until after sentencing and that this conflict of interest frustrated the purpose of Stafford's original sentence. We also conclude that the trial court erred in determining that this new factor did not warrant modification of Stafford's sentence. Accordingly, we reverse and remand for resentencing.

¶ 2. The facts in this appeal are as follows. In June 2000, Stafford was charged with three counts of second-degree sexual assault of a child, in violation of Wis. Stat. § 948.02(2) (2001-02). Stafford pled guilty to one count, and the other two counts were dismissed and read in for sentencing purposes. The trial court ordered a presentence investigation and the probation agent required Stafford to submit to a psychological assessment. Marikathryn Nooe, M.S.E., the Sexual Abuse Treatment Program coordinator at Reach Counseling Services, conducted the assessment of Stafford and her report, dated January 3, 2001, was incorporated into the PSI and submitted into evidence at the sentencing hearing.

¶ 3. At the sentencing hearing, Stafford's attorney informed the court of several corrections to the PSI, which she had obtained from the presentencing meetings that she and her paralegal had held with Stafford. Stafford and his attorney did not make any objections or corrections to the portions of the PSI referring to the Nooe assessment, or to the assessment itself. In addition to the PSI and Nooe's written assessment, the court considered several victim impact statements filed by the victim and her parents, letters from concerned members of the community and from Stafford's wife, and the transcripts of interviews both with another adolescent girl who had been involved with Stafford and with her parents. Stafford also submitted a brief letter report prepared by a psychologist who had conducted an evaluation and performed some short-term treatment of Stafford at the behest of his attorney. The court heard testimony from the victim and her father; Stafford did not allocute. The court sentenced Stafford to ten years in prison. This was contrary to the recommendations of the parties and the presentence investigator, all of whom had recommended probation of varying lengths.

¶ 4. Stafford filed a postconviction motion. Stafford argued that he had been sentenced on the basis of inaccurate information in violation of his due process rights, that his attorney had been constitutionally ineffective with respect to Stafford's exercise of his allocution right, and that new factors justified resentencing. Both the due process and new factors arguments were based on what Stafford asserted were inaccuracies in Nooe's written assessment.

¶ 5. In January 2002, the court held a postconviction motion hearing. At the hearing, Stafford's attorney in a separate civil case arising out of the same facts as are involved in the criminal case at bar, testified that during the course of discovery in the civil matter, she learned that Nooe had treated the victim in the case for the emotional issues caused by the sexual abuse perpetrated by Stafford. According to this attorney, Nooe treated the victim from June 28, 2000, until May 17, 2001. Based on this testimony, Stafford argued that Nooe's treatment of the victim, which occurred prior to her assessment of Stafford, created a theoretical and actual conflict of interest which influenced her assessment of Stafford and tainted the sentencing process. The trial court denied the motion, concluding that it had not solely relied on Nooe's report in making its sentencing decision. Stafford subsequently filed a motion for reconsideration and the court once again denied the motion. This appeal followed.

¶ 6. On appeal, Stafford alleges, inter alia, that his sentence should be modified on the basis of a new factor. Stafford contends that Nooe's treatment of the victim for the six months prior to his assessment created a conflict of interest that "hopelessly compromised" her objectivity and, hence, her assessment of Stafford. Stafford maintains that Nooe's conflict of interest was not revealed to him or the court prior to sentencing and the bias from Nooe's assessment tainted the sentencing court's consideration of his character and its need to protect the public from Stafford and, therefore, modification of his sentence is warranted. The State contends that Stafford failed to demonstrate that Nooe had a conflict of interest and, as a result, we need not even address Stafford's new factor claim. Therefore, before we apply the two-step new factor analysis to this case, we will discuss Nooe's alleged conflict of interest.

¶ 7. The State contends that Stafford did not demonstrate that Nooe had conducted her assessment for forensic sentencing purposes instead of for the purpose of treatment. According to the State, there is simply no conflict in assessing the suitability of treatment for the offender.

¶ 8. The State, however, misses Stafford's point. Stafford is arguing that Nooe's assessment was compromised because she was serving two masters — the victim and the court — and she failed to disclose her dual service to anyone. The precise reason why Nooe undertook the assessment is irrelevant. The fact remains that Nooe's report, regardless of whether it was for the purpose of treatment or for forensic sentencing purposes, was intended to be before the trial court at sentencing. As a sentencing tool, the report must be accurate, reliable and objective.

¶ 9. While we acknowledge that the case is not directly on point, we addressed a related concern in State v. Suchocki, 208 Wis. 2d 509, 561 N.W.2d 332 (Ct. App. 1997), and we find the reasoning in that case persuasive. In Suchocki, the presentence investigation report writer was married to the prosecuting attorney. Id. at 513. The defendant argued that this relationship compromised the objectivity of the PSI and, thus, violated his due process right to be sentenced on reliable and accurate information. See id. at 518. We held that the marital relationship was sufficient to call into question the objectivity of the PSI as a matter of law and, at the least, raised serious questions as to the fairness of the sentencing process to the defendant. Id. at 520.

¶ 10. We reasoned that the core issue in the case was whether the PSI writer could have been influenced by the relationship in forming impressions regarding the defendant and in making recommendations to the court, "the attitudes of a prosecutor are likely to operate differently upon a PSI writer who has a marital relationship with the prosecutor than upon a PSI writer having no significant relationship with the prosecutor." Id. at 519. We explained that the reasons for an agent's impressions could operate at a subjective level of which the report's author is unaware. Id. at 520. We then acknowledged the importance of the PSI to the sentencing process and recognized that the integrity of the sentencing process demands that the report be accurate, reliable and, above all, objective and concluded that the PSI should have been struck. See id. at 518, 520.

¶ 11. These same principles apply to the facts of this case. Here, the purpose of Nooe's assessment, like the purpose of the PSI, was to provide the trial court with information it could use at sentencing. As Su-chocki teaches, in order to protect the integrity of the sentencing process, the court must have a reliable and accurate information base. The hallmark of accuracy is objectivity. Hence, it is not merely the existence of contact between Nooe and the victim that concerns us. It is that Nooe could have been influenced by her extensive treatment relationship with the victim in forming her impressions regarding Stafford and in making her recommendations to the court that we find so troublesome. The information, attitude and impressions Nooe received from the victim could have impacted her assessment at either a conscious or a subconscious level. Because Nooe's impressions and recommendations could have been subjectively influenced, we conclude that her dual service calls into question her own objectivity, the accuracy of her assessment and the overall fairness of Stafford's sentencing process.

¶ 12. We now turn to the application of the two-step new factor test. To obtain sentence modification, a defendant must establish that (1) a new factor exists, and (2) the new factor justifies sentence modification. State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989). Whether a fact or set of facts constitutes a new factor presents a legal issue which we decide de novo. Id. Whether a new factor justifies sentence modification, however, presents an issue for the trial court's discretionary determination, subject to our review under the erroneous exercise of discretion standard. Id.

¶ 13. A new factor is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of the original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties. Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975). Further, a new factor is "an event or development which frustrates the purpose of the original sentence. There must be some connection between the factor and the sentencing— something which strikes at the very purpose of the sentence selected by the trial court." State v. Michels, 150 Wis. 2d 94, 99, 441 N.W.2d 278 (Ct. App. 1989).

¶ 14. Hence, to be a new factor, Nooe's treatment of the victim must have been unknown to both the parties and the court at the time of sentencing and must frustrate the intent behind the original sentence. We address these two elements in turn.

¶ 15. It is clear that Nooe's potential conflict of interest was unknown to all of the parties prior to sentencing. A thorough review of the record reveals that the information pertaining to Nooe's treatment of the victim was not disclosed in Nooe's written assessment, nor was it called to Stafford's or the court's attention prior to sentencing. It was not until after sentencing, at the postconviction motion hearing, when Stafford's attorney in the civil matter established that Nooe had treated the victim and assessed Stafford at the same time. The State argues that there are serious factual uncertainties surrounding Nooe's assessment that undercut Stafford's conflict of interest argument. However, the State's assertions are purely speculative ruminations made in hindsight and unsupported in the record. We will not address them. We conclude that Noe's duality was unknown at the time of sentencing.

¶ 16. Furthermore, it is beyond question that the court relied on Nooe's assessment during sentencing. In the course of its discussion of Stafford's character, the sentencing court repeatedly referred to and directly quoted from Nooe's assessment. Specifically, the court highlighted the portion of Nooe's opinion explaining that Stafford demonstrated little victim empathy. The court also quoted her clinical impressions virtually verbatim, emphasizing Nooe's determinations that Stafford had a well-developed defense system, which included dishonesty and placing subtle and overt blame on others for his situation, and that his grooming of his victim was extensive. In addition, the court noted Nooe's conclusion that Stafford was a pedophile, a conclusion which, the State now concedes, was error.

¶ 17. The State contends that Nooe's conflict of interest does not frustrate the purpose of Stafford's sentence because it is not directly connected to the length of the sentence imposed. However, our review of the trial court's sentencing remarks demonstrates that the trial court factored Nooe's assessment of Stafford's character and danger to the community into the length of Stafford's sentence. While the court did not refer to Nooe's assessment by name in explaining its reasons for rejecting the recommendation of the parties and the PSI agent that Stafford receive probation, the court, once again, clearly turned to Nooe's assessment for support. The court explained that it was concerned about the fact that Stafford apparently did not understand the seriousness of his offense or the effect of his conduct on the victim and the victim’s family. The court further reasoned that a long period of incarceration was necessary to send a message to the community and to Stafford that individuals must accept responsibility for their actions; they cannot blame others or look the other way. Finally, the court stated that it was concerned about the protection of the public and it felt "that if Mr. Stafford is allowed back into the community he will immediately begin cultivating another relationship with another minor female for the reason that I don't think he understands the problem." These conclusions flow directly from Nooe's assessment. We therefore conclude that Stafford has demonstrated that a new factor exists.

¶ 18. Having established that Nooe's conflict of interest constitutes a new factor, we now turn to the second part of the test: whether the new factor mandates modification of Stafford's sentence. In concluding that Nooe's conduct did not constitute a new factor justifying modification of Stafford's sentence, the trial court noted that it had applied the three primary sentencing criteria — severity of the offense, character of the defendant, and public safety — and then stated that in considering those factors it had not "placed substantial reliance" on Nooe's assessment. The court recalled that it had primarily relied on all of the documents that had been filed prior to sentencing in addition to the Nooe assessment. The State makes a similar argument on appeal. However, as we explained above, the trial court's own words at the sentencing hearing belie these assertions.

¶ 19. The law appropriately recognizes that sentences may be based on what is unknowingly incomplete or inaccurate information, and, if they are, that there should be some mechanism to correct a resulting injustice. Here, Nooe's treatment of the victim prior to her assessment of Stafford undermines our confidence in the objectivity and accuracy of her report and, as a result, the fairness of the sentencing process to Stafford. We, therefore, conclude that the trial court erroneously exercised its discretion in determining that a modification of Stafford's sentence was not justified. Accordingly, we reverse and remand for resentencing.

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

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

       We believe that it is important to note that Nooe is not a licensed independent family counselor, social worker, psychologist or psychiatrist. Had Nooe been licensed, she would have been subject to a code of ethics or conduct that would have prohibited her from engaging in the dual relationship. See, e.g., Wis. Admin. Code § MPSW 20.02(13) (prohibiting social workers from engaging in dual relationships that may impair the credentialed person's objectivity or create a conflict of interest); Wis. Admin. Code § PSY 5.01(17) (providing that a failure of psychologists to avoid dual relationships or relationships that may impair one's, objectivity or create a conflict of interest constitutes unprofessional conduct). While we are not in a position to tell the trial courts what to do in this particular circumstance, this case provides a good example of why licensing in general and a code of ethics in particular should be a condition precedent to any professional observation the trial court may take into account.