author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Obea S. Hayes, Defendant-Appellant.

    Court of Appeals

      No. 02-1542-CR.

      Submitted on briefs February 19, 2003.

      Decided April 16, 2003.

    2003 WI App 99
    (Also reported in 663 N.W.2d 351.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Philip J. Brehm of Janesville.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general.
    Before Nettesheim, PJ, Brown and Anderson, JJ.

       Petition to review granted 9-12-03.

   BROWN, J.

¶ 1. On appeal, Obea S. Hayes argues that the State's evidence was insufficient to prove his guilt beyond a reasonable doubt and seeks review of his conviction for second-degree sexual assault in violation of Wis. Stat. § 940.225(2)(a) (2001-02) on that basis. The State submits that by failing to raise the issue of the sufficiency of the evidence before, during or after the trial Hayes has waived this argument on appeal. We hold that pursuant to State v. Gomez, 179 Wis. 2d 400, 507 N.W.2d 378 (Ct. App. 1993), Hayes need not have raised the challenge to the sufficiency of the evidence at the trial court level to preserve it for appeal. However, on the merits, we conclude that the evidence was sufficient to support the jury's verdict. Accordingly, we affirm the judgment of conviction.

¶ 2. In March 2000, the State charged Hayes with having committed several criminal offenses, including the second-degree sexual assault of M.M. During the jury trial, M.M. testified that she is four feet and eleven inches tall and weighs ninety-five pounds. She testified that she and Hayes had previously lived together in her apartment and had a sexual relationship. She stated that she ended their relationship in October 1999 after Hayes had come to the apartment and kicked in the door. At that time, Hayes had threatened to kill her. As a result of the incident, Hayes was put in jail. M.M. obtained a seventy-two-hour no-contact order against Hayes, but as soon as he was released from jail, he returned to her apartment, in violation of the no-contact order.

¶ 3. Usually, for brevity and clarity, we summarize a person's testimony rather than give a verbatim account of it. But in this case, the events related by M.M. are not uniformly sequential and this lack of sequential order is what we believe gives rise to Hayes' sufficiency of the .evidence argument. The argument is best met by showing M.M.'s testimony in the exact sequence she related the events.

¶ 4. We will thus relate, verbatim, pertinent direct and cross-examination of M.M. M.M. testified that as of March 24, 2000, she lived alone in her apartment and she had not renewed the relationship with Hayes since she broke it off in October. During direct examination, she testified to the events that took place on the night of March 24 as follows:

Q. Let's go back to the evening of March 24th. You said Mr. Hayes knocked on the door, you opened it.
A. Right.
Q. Did you invite Mr. Hayes inside?
A. No, I did not.
Q. Did Mr. Hayes come inside?
A. Yes, he did.
Q. How did that happen?
A. He put his foot in, so — between the door
Q. Then what happened?
A. He walked right on in.
Q. What did Mr Hayes say to you at that time, if anything?
A. Where have you been? Apparently, you must have been out there, messin' around.
Q. What did you say?
A. I told him, no. I told him that was none of his business.
Q. What happened after that?
A. He ended up putting his hand on me and touched me in places where he wasn't supposed to be. My breasts, plus my vagina.
Q. How many times did Mr. Hayes touch you on the breasts?
A. About two or three times.
Q. What were the other areas you mentioned?
A. My sitting part.
Q. Are you referring to your vaginal area?
A. Right.
Q. And how many times did he touch you there?
A. Two or three times.
Q. Did he touch you on the buttocks?
A. Yes.
Q. How many times?
A. Two.
Q. Did he say anything to you during that period of time?
A. He grabbed ahold to my clothes and then tored [sic] my T-shirt, along with the bra.
Q. Okay. Did he indicate — make any statements to you about wanting to have sex with you at some point?
A. Yes, he did.
Q. When did that occur?
A. The same night.
Q. Did that occur during—
A. During.
Q. —the time he was taking your clothes off?
A. Right.
Q. How long did the struggle go on?
A. It went on for a little while. I really can't pinpoint to know exactly about what time. When you are scuffling and fighting, you are not looking at no watch to find out, you know?
Q. What particular injuries did the defendant inflict on you?
A. He ended up choking me with the left hand, and he ended up shoving me against my bathroom corner wall.
Q. Okay.
A. And then he end [sic] up putting a scar on my chest. Then he grabbing ahold to my hand and trying to break my fingers, but he broke the one finger.
Q. Going back to when Mr. Hayes was in your apartment on March 24th of 2000, what specifically do you recall him saying about him wanting to have sex with you?
A. Because I hadn't had sex with him since heaven knows when.
Q. I beg your pardon?
A. I hadn't had sex with him at all.
Q. What specifically did he say?
A. He said I had been out with someone else. The way he puts it, he was gonna have sex with me because he called that, his thing.
Q. Did he — did you tell the police officer that he told you that he wanted to throw you down on the floor and have sex with you?
A. Right.
Q. Is that what you recall happening, today?
A. Right.
On cross-examination, M.M. further explained:
Q. As soon as he got inside the apartment, what was the first thing that happened?
A. He done end up accusing me of messin' around.
Q. So it was before he tried to touch you that he accused you of — that he accused you of fooling around?
A. Right. Right.
Q. Okay. At the time, what did you say?
A. I told him I wasn't, and I told him that it was my business. I told him to go find him someone else.
Q. He then touched your breast?
A. Right.
Q. Was he standing in front of you at the time?
A. Right.
Q. Did he put his hand up your shirt?
A. Right.
Q. Did he put his hand inside of your bra?
A. Right.
Q. How long did that go on?
A. Well, it went on for quite awhile, because I kept on wrassling with him, and all of that kind of stuff, to try to get him away from me.
Q. All right. But this was — he was doing this underneath your clothing; is that correct?
A. Right.
Q. At the time — well, how was it he stopped touching your breast? Did you push him away, or did he just stop?
A. I pushed him away.
Q. When he — you testified that he fondled your vaginal area.
A. Right.
Q. Was that also underneath your clothing?
A. That's right. I had pants on.
Q. And he reached down inside your pants?
A. Right.
Q. Same with when he touch [sic] your buttocks?
A. Right.

¶ 5. During the trial, Hayes did not move for a directed verdict at the close of the State's evidence. Hayes then testified at trial that he had never grabbed M.M.'s breasts or buttocks, attempted to fondle her vaginal area, or tried to otherwise physically harm her by choking her or twisting her finger. He stated that he and M.M. had actually resumed their relationship after the October incident and he was living in the apartment off and on with M.M. around the time of the alleged assault.

¶ 6. Nor did Hayes move for a directed verdict at the close of all the evidence. The jury found Hayes guilty of second-degree sexual assault in violation of Wis. Stat. § 940.225(2)(a). After this verdict was returned, Hayes did not ask for a judgment notwithstanding the verdict. Hayes now appeals the judgment of conviction.

¶ 7. On appeal, Hayes challenges the sufficiency of the evidence to convict him of second-degree sexual assault. The State asserts that Hayes waived the argument because he failed to raise it in a timely manner in the trial court. The State contends that to preserve a claim of insufficiency of the evidence for appellate review, a criminal defendant must file a motion to dismiss or a motion for a directed verdict or request a judgment notwithstanding the verdict.

¶ 8. In Gomez, we addressed the very issue the State raises. In Gomez, the defendant, on appeal, challenged the sufficiency of the evidence to convict him of enticement of a child in violation of Wis. Stat. § 948.07. Gomez, 179 Wis. 2d at 404. The State asserted that the defendant had waived this argument because he did not present this issue to the trial court before, during or after the trial. Id. We observed that the defendant's argument was based upon the sufficiency of the evidence to convict, which under Wis. Stat. § 974.02(2) does not require a postconviction motion, and held that the defendant had preserved the issue for appeal. Gomez, 179 Wis. 2d at 404.

¶ 9. The State argues that we should not apply Gomez to this case. The State first seems to suggest that our conclusion in Gomez somehow conflicts with our supreme court's holding in State v. Van Beek, 31 Wis. 2d 51, 141 N.W.2d 873 (1966), and that we should adopt the approach set forth in Van Beek.

¶ 10. In Van Beek, our supreme court held that it would decline to review a conviction on the basis of insufficient evidence in the absence of a motion to set aside a verdict challenging an alleged insufficiency of the evidence or a motion for a new trial. Id. at 52-53. The court decided that only in the face of "compelling circumstances" would it review insufficiency of the evidence claims if the appropriate motions were omitted. Id. at 53.

¶ 11. Van Beek, however, is inapposite. The decision was written prior to the enactment of Wis. Stat. § 974.02(2). Section 974.02(2) substantially changed the procedure for claims of insufficiency of the evidence. See Robert J. Martineau & Richard R. Malmgren, Wisconsin Appellate Practice- § 2706 (1978) (noting that the procedure for filing criminal cases had been substantially changed). Under the former procedure, - a defendant in a jury trial was required to file a motion for a new trial in order to raise any issue on appeal as a matter of right and, as is evidenced by Van Beek, the supreme court was particularly reluctant to review a claimed insufficiency of the evidence without a postcon-viction motion based on such assertion. See id. As we have already observed, § 974.02(2) specifically provides that a postconviction motion challenging the sufficiency of the evidence is not necessary to raise that issue on appeal. We therefore must decline the State's invitation to resurrect Van Beek.

¶ 12. The State next asserts that we should confine Gomez to its facts. The State appears to suggest that Gomez was only concerned with whether the issue had to be raised by postconviction motion and did not concern whether it had to be raised at least at some point in the trial court. The State is wrong. We were concerned with the exact same issue in Gomez that we have in this case. The State here submits that a defendant waives his or her insufficiency of the evidence claim if he or she does not raise it at the trial court level — either before, during or after the trial — by filing a motion to dismiss, a motion for a directed verdict or by requesting a judgment notwithstanding the verdict. While it is true that in Gomez we said a postconviction motion is not a necessary condition precedent to an appeal on sufficiency of the evidence grounds, our decision also explicitly held that Wis. Stat. § 974.02(2) makes it unnecessary to raise an insufficiency of the evidence issue before, during or after trial as a precondition to appealing that issue. Gomez, 179 Wis. 2d at 404. Therefore, our decision spoke to more than simply whether a postconviction motion was necessary. It spoke to whether any motion was necessary at any time prior to appeal. It is well established that only the supreme court has the power to overrule, modify or withdraw language from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166,189-90, 560 N.W.2d 246 (1997). We are therefore bound by the law articulated in Gomez. We cannot sub silentio get around this rule by simply holding a prior existing case "to its facts." Accordingly, we hold that Gomez governs and we reject the State's contention that Hayes did not preserve the issue for appeal.

¶ 13. Having concluded that waiver does not preclude Hayes's insufficiency of the evidence claim, we now address the case on the merits. When an appellate court reviews a challenge to the sufficiency of the evidence, the court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the State and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence at trial to find guilt, the court must uphold the conviction. Id. If more than one inference can be drawn from the evidence, the reviewing court must accept the inference drawn by the jury. Id.

¶ 14. Wisconsin JI — Criminal 1208 sets forth the elements for second-degree sexual assault: (1) the defendant had sexual contact with the victim, (2) the victim did not consent to the sexual contact, (3) the defendant had sexual contact with the victim by use or threat of force or violence. Hayes concedes that the evidence was sufficient to prove beyond a reasonable doubt that he had sexual contact with M.M. without her consent. Hayes's sufficiency of the evidence challenge is extremely narrow, focusing solely on the third element of the offense. He submits only that, while M.M. did testify she was touched in intimate areas without her consent and that a struggle occurred between M.M. and Hayes on the day in question, "the record is far from definitive" on whether the use or threat of force or violence occurred before or after the sexual contact. Hayes speculates that if the sexual contact preceded the physical violence, then he cannot be guilty of the offense of second-degree sexual assault, and the jury did not have enough information to make the assessment of when the physical violence took place.

¶ 15. As Hayes acknowledges, in State v. Bonds, 165 Wis. 2d 27, 32, 477 N.W.2d 265 (1991), our supreme court held that the use or threat of force or violence element of second-degree sexual assault includes forcible contact or force used as a means of making the sexual contact. Thus, the element is satisfied whether the force is used or threatened as part of the sexual contact itself or whether it is used or threatened before the sexual contact. Further, where more than one sexual act occurs, a single threat may suffice; there need not be a separate threat or use of force prior to each act. Cf. State v. Jaworski, 135 Wis. 2d 235, 239-41, 400 N.W.2d 29 (Ct. App. 1986) (concluding that a single initial threat of violence could have a continuing coercive effect on a victim who is assaulted on separate occasions).

¶ 16. Here, M.M., who weighs ninety-five pounds, testified that Hayes had become violent towards her on a previous occasion, and, on the evening of the alleged assault, she did not invite Hayes inside the apartment. She testified that he put his foot in between the door and forced his way in. He accused her of messing around and "touched her breasts, vaginal area and buttocks repeatedly. According to M.M.'s testimony, it was during that time that he grabbed her clothes and tore her T-shirt and bra. Hayes also told her during the struggle that he wanted to throw her down on the floor and have sex with her because he said she had been out with someone else. M.M. testified that the sexual contact went on for "quite awhile" because she "kept on wrassling with him, and all of that kind of stuff, to try to get him away from me." M.M. stated that during this struggle, Hayes choked her with his left hand, shoved her against a wall, hurt her chest, and grabbed her finger and yanked it, breaking it.

¶ 17. We do not reverse convictions because a witness fails to describe an event in exact chronological fashion. Rather, we leave it to the jury to listen to the testimony and determine what happened. A jury is charged with drawing whatever reasonable inferences it wants to in furtherance of its duty to find the facts. Here, the jury listened to the totality of M.M.'s description of the event and found Hayes guilty. That guilty verdict means that the jury felt the third element, that Hayes had sexual contact with M.M. by use of threat of force or violence, was proven beyond a reasonable doubt. From the totality of M.M.'s description, a reasonable fact finder could draw the inference that Hayes verbally threatened to have retaliatory sex with M.M., and that the actual sexual contact occurred while he was tearing her clothes and he was wrestling and struggling with her to overcome her resistance. Thus, a reasonable jury could well conclude from this evidence as a whole that Hayes threatened or used force or violence against M.M. prior to or simultaneously with the sexual contact. Further, as Hayes's counsel acknowledged in her closing arguments, *the question before the jury was one of credibility. It was for the jury, not this court, to determine the credibility of the witnesses. See State v. David J.K., 190 Wis. 2d 726, 741, 528 N.W.2d 434 (Ct. App. 1994). The jury chose not to rely upon Hayes's testimony. We will not disturb the jury's credibility determination. We therefore affirm Hayes's judgment of conviction.

By the Court. — Judgment affirmed.

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

       Wisconsin Stat. § 974.02(2) is identical to the statute analyzed in Gomez. Section 974.02(2) reads:
      An appellant is not required to file a postconviction motion in the trial court prior to an appeal if the grounds are sufficiency of the evidence or issues previously raised.

       We profess not to understand why the State thinks a "motion for judgment notwithstanding the verdict" is even a proper motion to make in a criminal proceeding. A "motion for judgment notwithstanding the verdict" is used in civil, not criminal, procedure.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    Ralph E. Beecher, Plaintiff-Appellant, v. Labor & Industry Review Commission, Outokumpu Copper Kenosha, Inc. and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, Defendants-Respondents.

    Court of Appeals

      No. 02-1582.

      Oral argument February 12, 2003.

    Decided April 16, 2003.

    2003 WI App 100
    (Also reported in 663 N.W.2d 316.)

      On behalf of the plaintiff-appellant, there were briefs and oral argument by Daniel J. Kelley of Schoone, Leuck, Kelley, Pitts & Knurr, S.C., Racine.
    On behalf of the defendant-respondent Labor & Industry Review Commission, there was a brief by Stephen M. Sobota, assistant attorney general, and
      James E. Doyle, attorney general. There was oral argument by Stephen M. Sobota, assistant attorney general.
    On behalf of the defendants-respondents Outo-kumpu Copper Kenosha, Inc. and Fremont Indemnity Co., Insurer, c/o Casualty Insurance, there was a brief by Scott E. Wade and Jessica M. Vianes of Peterson, Johnson & Murray, S.C., Milwaukee. There was oral argument by Scott E. Wade.

    Before Nettesheim, EJ., Brown and Snyder, JJ.

       Petitions to review granted 10-1-03.

   SNYDER, J.

¶ 1. Ralph E. Beecher appeals from an order dismissing his appeal of a Labor & Industry Review Commission (LIRC) worker's compensation decision finding that he had not established a prima facie case for permanent total disability; LIRC instead ruled that Beecher was permanently partially disabled. Beecher argues that there is no substantial and credible evidence to support LIRC's conclusion that he failed to establish a prima facie case of permanent total disability. We agree with Beecher and reverse the order of the circuit court.

FACTS

¶ 2. Beecher was born in July 1942 and has a ninth grade education. Beecher had worked for Outo-kumpu Copper Kenosha, Inc., a foundry, for twenty-nine years in what he has characterized as strenuous employment. As of April 7, 1997, Beecher had been working for several months on a "Z-mill" machine. The Z-mill ran sheets of metal from one large roll of metal to another roll or spool. The job required Beecher to lean over the first roll of metal to pick up the sheet of metal as it wound off the first roll, then thread the sheet of metal into a slit on the second roll. Beecher would wind the sheet of metal from the first roll to the second, then thread the metal sheeting into the Z-mill machine and rewind it. The metal sheets themselves were five to eight inches wide and approximately two inches thick; an entire roll might weigh 15,000 pounds. The job required bending over to pick up the sheets of metal and then pulling them to thread sheets onto the rolls.

¶ 3. Beecher developed sharp pains in his lower back, leading him to seek medical treatment with an orthopedist, Dr. Christopher Noonan, in April 1997. The pain increased over time until Beecher could no longer work. On September 10, 1997, Dr. Noonan performed a third surgical procedure to Beecher's lower back, a discectomy, fusion and graft. A fourth surgery has been suggested to help alleviate his condition but Beecher has not yet opted to have this procedure.

¶ 4. Beecher returned to light-duty work in April 1998, at which time he worked for two weeks until Outokumpu apparently ran out of light-duty assign - ments for him. Since then, Beecher has not returned to work for Outokumpu. Outokumpu has since moved its operations out of Wisconsin and did not offer to relocate Beecher to a light-duty job at its new location. Beecher testified that if he had been offered such a transfer, he would have accepted it.

¶ 5. In September 1999, Beecher filed an application for a hearing, alleging that his day-to-day work activities up to April 7, 1997, caused progression of his pre-existing back condition, ultimately leading to lumbar fusion surgery. Beecher sought temporary total disability benefits from October 14, 1998, through May 14, 1999, permanent partial disability benefits on a functional basis at fifteen percent to the body as a whole, and permanent disability on a vocational basis for loss of earning capacity, including permanent total disability and payment of medical expenses.

¶ 6. On January 3, 2001, a hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development. Prior to the hearing, Outo-kumpu and its insurer, Fremont Indemnity Co., conceded jurisdictional facts and an average weekly wage at the statutory maximum. In dispute before the ALJ was whether Beecher sustained injuries arising out of his employment while performing services incidental to or growing out of that employment and, if so, the nature and extent of the disability and related medical expenses. In addition, both parties had entered into a limited compromise agreement concerning certain issues.

¶ 7. On April 5, 2001, the ALJ issued his findings of fact and order finding a compensable injury and awarded compensation for temporary total disability from October 14, 1998, to May 19, 1999, and for permanent total disability thereafter. The ALJ also awarded payment of certain medical expenses. Outo-kumpu filed a timely petition for LIRC review. LIRC partially reversed the decision of the ALJ; LIRC found that Beecher had sustained a disability from an occupational disease arising out of his employment with Outokumpu. -However, LIRC also found that Beecher had not established a prima facie case for permanent total disability but instead ruled Beecher was permanently partially disabled.

¶ 8. Beecher filed an appeal pursuant to Wis. Stat. § 102.23 (2001-02) seeking review of LIRC's decision. The circuit court affirmed LIRC's decision and Beecher appeals.

DISCUSSION

¶ 9. In an appeal following an administrative agency decision, we review the decision of the agency, not that of the circuit court. Am. Mfrs. Mut. Ins. Co. v. Hernandez, 2002 WI App 76, ¶ 11, 252 Wis. 2d 155, 642 N.W.2d 584. We do not weigh the evidence or pass upon the credibility of the witnesses and we must uphold LIRC's findings of fact on appeal if they are supported by credible and substantial evidence in the record. Id. When we review an administrative agency's interpretation of a statute, there are three possible levels of deference: great weight, due weight or de novo. Id.

¶ 10. When we afford "great weight" deference to the agency's interpretation, we will sustain a reasonable agency conclusion even if an alternative conclusion is more reasonable. Id. at ¶ 12. We give "great weight" deference to the agency's interpretation when all of the following conditions are met: (1) the agency was charged by the legislature with the duty of administering the statute, (2) the interpretation of the agency is one of long-standing, (3) the agency employed its expertise or specialized knowledge in forming-the interpretation, and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. Id.

¶ 11. In affording "due weight" deference to the agency's interpretation, we will not overturn a reasonable agency decision that comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available. Id. at ¶ 13. We afford "due weight" deference to the agency's determination when it has some experience in an area but has not developed the expertise that necessarily places it in a better position than a court to make judgments regarding the interpretation of the statute. Id.

¶ 12. When we review an agency decision "de novo," we give no deference to the agency's interpretation. Id. at ¶ 14. De novo review is appropriate if any of the following is true: (1) the issue before the agency is clearly one of first impression, (2) a legal question is presented and there is no evidence of any special agency expertise or experience or (3) the agency's position on an issue has been so inconsistent that it provides no real guidance. Id.

¶ 13. Here, we accord LIRC's decision great weight deference and thus will sustain a reasonable agency conclusion even if an alternative conclusion is more reasonable. See id. at ¶ 12.

¶ 14. Upon briefs, Beecher argues that there is no substantial and credible evidence that he failed to establish a prima facie claim of permanent total disability pursuant to Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977). Beecher contends that his evidence established a prima facie claim of permanent total disability and LIRC's reasoning does not support its contrary conclusion. Beecher relies primarily on Balczewski, which he claims requires him to establish a prima facie case of permanent total disability, and concludes that since the facts of the case at hand are nearly identical to the facts of Balczewski, an identical result is compelled.

¶ 15. Outokumpu argues that LIRC's findings of fact support its legal conclusion. LIRC maintains that there was credible and substantial evidence to support its findings on the nature and extent of Beecher's disability; LIRC appears to acknowledge Balczewski's requirement that the claimant establish a prima facie case of permanent total disability but attempts to distinguish the facts of Balczewski from the case at hand.

¶ 16. However, in its brief, LIRC also implicitly argues that 4 Arthur Larson & Lex K. Larson, Larson's Worker's Compensation Law § 84.01 [4] (1st ed. 2001), elaborates on the Balczewski principles and is equally applicable to Beecher. In addition to Balczewski's requirement that the claimant establish a prima facie case of permanent total disability, LIRC cites to Larson for the concept that "it is not unreasonable to place the burden of proof on [the] claimant to establish unavailability of work to a person in his or her circumstances . . . [which] would normally require a showing that the claimant has made reasonable efforts to secure suitable employment." In essence, LIRC argues that the burden was on Beecher to (1) establish a prima facie case for permanent total disability (.Balczewski) and then (2) show he made reasonable efforts to obtain suitable employment (Larson). LIRC acknowledges in its brief that it applied both the Balczewski and Larson principles to Beecher and argues that Balczewski implicitly adopts the above Larson principle, as have numerous cases from other jurisdictions.

¶ 17. After briefing, we ordered oral argument. At oral argument, LIRC clarified its contention; LIRC again admitted that it had adopted and applied the Larson principle to Beecher and urged us to adopt this second Larson step as law. Thus, by its own admission, LIRC applied a standard to Beecher that is not currently the law in Wisconsin. This was erroneous.

¶ 18. The principles set forth in Larson, as cited by LIRC for the second step Beecher must take, are not the law in Wisconsin; Balczewski is the law and Balc-zewski does not require a claimant to make a showing that he or she had made reasonable efforts to secure suitable employment. In fact, Balczewski establishes the opposite.

¶ 19. Balczewski held that "where nonschedule industrial injuries were sustained, the crucial factor in establishing permanent total disability [is] proof of the total and permanent impairment of earning capacity." Balczewski, 76 Wis. 2d at 492. Citing to Larson, the Balczewski court states that "where a claimant makes a prima facie case that he has been injured in an industrial accident and, because of his injury, age, education, and capacity, he is unable to secure any continuing and gainful employment, the burden of showing that the claimant is in fact employable and that jobs do exist for the injured claimant shifts to the employer.Balczewski, 76 Wis. 2d at 495 (emphasis added). Balczewski's holding is clear:

A suggested general-purpose principle on burden of proof in this class of cases would run as follows: If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work, and then round out the case for noncompensability by adding a presumption that light work is available.

Id. (citing Larson, supra, § 57.61).

¶ 20. In essence, establishing permanent total disability is a two-step process. The first step requires the claimant to make a prima facie case that he or she is permanently and totally disabled. Balczewski, 76 Wis. 2d at 494-95, 497. The second step, and the burden, then shifts to the employer to rebut that prima facie showing and demonstrate that some kind of suitable work is regularly and continuously available to the claimant. Id. at 497. Step one belongs to the claimant while step two belongs to the employer.

¶ 21. LIRC, however, parses Balczewski somewhat differently. LIRC's position is this: When the claimant is "obviously unemployable" as was the case in Balczewski, then, once the claimant puts in his or her prima facie case, the burden shifts to the employer to prove that jobs exist for the claimant, even with the limitations placed by the treating physician. However, where there is some legitimate question about whether the claimant is "obviously unemployable," then the burden should be on the claimant to prove that he or she has conducted a job search and has been unable to find a job with the physical limitations the doctor has ordered. In LIRC's view, Balczewski was a case involving an "obviously unemployable" person and this case is not. Thus, Balczewski is not controlling here.

¶ 22. Still, LIRC believes that Balczewski is nonetheless important to the holding in this case for the following reason: the Balczewski court relied on the Larson treatise in support of its decision. Larson, in LIRC's view, suggests that in cases involving an "obviously unemployable" person, the burden is on the employer and in cases where it is not so obvious, the burden is on the claimant. LIRC reasons that the supreme court was merely following this paradigm in Balczewski but did not delineate a difference between "obviously unemployable" situations and those that are not obvious, for the simple reason that it did not have to do so. LIRC posits that this case presents that opportunity and that discussion of the burden in "not so obvious" cases is a natural corollary to Balczewski.

¶ 23. LIRC arrives at its theory of what Larson says by reference to the following paragraph in Larson:

The corollary of the general-purpose principle just stated would be this: If the claimant's medical impairment is so limited or specialized in nature that he or she is not obviously unemployable or relegated to the odd-lot category, it is not unreasonable to place the burden of proof on that claimant to establish unavailability of work to a person in his or her circumstances. This normally would require a showing that the claimant has made reasonable efforts to secure suitable employment. The effort to seek employment will not be deemed reasonable if the claimant places undue limitations on the kind of work he or she will accept, including limitations not justified by the character of the impairment.

Larson, supra, § 84.01[4]. There are several problems with LIRC's analysis. First, the supreme court in Balc-zewski never used the term "obviously unemployable" to refer to Balczewski. Second, the supreme court never even hinted that there was an exception to its holding that placed the burden on the employer to show the availability of jobs after a prima facie case had been made by the claimant that he or she was "odd lot." Third, the section in Larson referred to by LIRC is entitled "Burden of Proof of Work Search on Employee in Non-odd-lot Cases." The text of the section point blank tells us that there are those cases where the claimant's "medical impairment is so limited or specialized in nature that he or she is not obviously unemployable or relegated to the odd-lot category." Larson, supra, § 84.01[4], LIRC does not tell us how Beecher's physical problems are "so limited" or "specialized" as to take his case out of odd-lot status. We wonder whether the section in Larson is even applicable to Beecher's case.

¶ 24. Balczewski instructs that when the claimant produces evidence that he or she is relegated to odd-lot status and makes a prima facie case, the burden shifts. The section of Larson cited by Balczewski states:

If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. Certainly in such a case it should not be enough to show that claimant is physically capable of performing light work, and then round out the case for noncompensability by adding a presumption that light work is available.

Balczewski, 76 Wis. 2d at 495 (citing Larson, supra, § 57.61).

¶ 25. Balczewski pointedly fails to reference the section of Larson that LIRC urges us to adopt. Balczewski's reference to one small section of the Larson treatise does not somehow incorporate other sections of Larson nor does it muddy or blur Balczewski's holding. Nowhere in Balczewski does it indicate that the claimant must show that he or she made reasonable efforts to secure employment. In fact, it holds the exact opposite: "[I]t is incumbent upon the employer" to show that such special employment can be obtained. Balczewski, 76 Wis. 2d at 494 (citation omitted).

¶ 26. LIRC, however, erroneously imposed both steps on Beecher, concluding that in order to meet his burden, Beecher had to both establish a prima facie case that he was permanently and totally disabled and show that he made reasonable efforts to secure employment. LIRC then erroneously concluded that because Beecher failed to show reasonable efforts to secure employment, he did not make his prima facie case. We conclude that once the requirements of the second step are properly removed from Beecher and assigned to his employer, as Balczewski requires, Beecher's evidence sufficiently establishes a prima facie case that he is permanently and totally disabled. As noted in Balcze-wski:

"Total disability"... is not to be interpreted literally as utter and abject helplessness. Evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial. The task is to phrase a rule delimiting the amount and character of work a man can be able to do without forfeiting his total disability status.

Id. at 493 (citation omitted).

¶ 27. At the hearing before the ALJ, Beecher presented the following evidence: the three reports of his treating orthopedist, Dr. Noonan, dated September 22, 1998, April 10, 1999 and December 14, 2000; the April 27, 1998 report of Dr. Richard K. Karr, who examined Beecher in April 1998 and July 1998; and the December 13, 2000 report of vocational expert Charles McReynolds, who based his report upon the results of a November 2000 functional capacity evaluation (FCE) conducted by occupational therapist Ruth Meehan.

¶ 28. Outokumpu's evidence included an August 14, 2000 and a December 2000 report from vocational expert Leanne Panizich, who also considered the results of the November 2000 FCE, and three reports from Dr. Thomas O'Brien, dated July 12, 1997, September 24, 1998 and May 14, 1999.

¶ 29. LIRC found the opinions of Drs. Noonan and Karr, Beecher's experts, more credible and discredited the opinion and work restrictions of Dr. O'Brien. LIRC found most credible and adopted the work restrictions of the November 2000 FCE, which were as follows:

standing for up to an hour at a time for a total of four hours per day
sitting for up to an hour at a time up to four hours per day
completing up to three flights of stairs on an occasional basis throughout the course of an average workday
limit bilateral carrying not to exceed a maximum of 15 pounds on an occasional basis
limit bilateral lifting to a maximum of 20 pounds over the course of an average workday
limit left arm carrying to 15 pounds and right arm carrying to 20 pounds over an average workday
limit pushing and pulling to 14 horizontal force pounds occasionally

LIRC found Beecher's complaints credible and further found that he did not invent symptoms or exaggerate his condition.

¶ 30. LIRC rejected the opinion of McReynolds, Beecher's vocational expert, only because McReynolds relied on Dr. Noonan's part-time work restrictions issued in March 1998. These restrictions were as follows: lifting a maximum of 10 pounds; sitting, standing and walking for a maximum of four hours; occasional bending, stooping, crawling or kneeling; and working a maximum of four hours for two weeks, then increase to six hours maximum. LIRC also concluded that Dr. Noonan did not explicitly reiterate these restrictions when he adopted the November 2000 FCE. While Dr. Noonan did not adopt his previous restrictions, he did in fact adopt the work restrictions of the FCE, which are consistent with his previous restrictions. Nowhere in the.FCE does it explicitly state that Beecher can work full time. In addition, McReynolds stated that, based upon the restrictions set forth in the November 2000 FCE, Beecher was permanently and totally disabled. Beecher presented sufficient evidence of a prima facie case of permanent total disability.

¶ 31. The facts here are nearly identical to the facts of Balczewski. In Balczewski, the claimant was a fifty-seven-year-old unskilled worker whose formal schooling was completed in seventh grade. Id. at 490. Her previous work history was entirely unskilled labor and at the time of her injury, her employment involved much heavy lifting. Id. After her injury, the claimant was permanently unable to resume that work. Id. at 490-91.

¶ 32. The claimant had surgery which did not restore her to pre-accident physical condition. Id. at 491. Her injury left her unable to vacuum, sweep or mop, and unable to hold objects, such as a book, for more than five minutes. Id. Even limited activities were interrupted by rest periods and her constant pain required medication. Id.

¶ 33. At the hearing, an employment placement expert testified that on the basis of the claimant's physical limitations, the claimant was not qualified for any more industrial work and she was not qualified in her education or experience to perform any type of service in a sustained or reliable manner; the claimant's condition, along with her age and lack of education, made any training program inconsequential. Id. at 492. Thus, the claimant was 100% disabled for industrial purposes and was disqualified for even sedentary jobs. Id. We concluded that prima facie proof of total disability was adduced at the hearing. Id. at 490.

¶ 34. Beecher was born in July 1942 and has a ninth grade education. He worked for Outokumpu for twenty-nine years in strenuous employment. Beecher developed sharp pains in his lower back, leading him to seek medical treatment in April 1997. The pain increased over time until Beecher could no longer work. On September 10, 1997, Dr. Noonan performed a third surgical procedure to Beecher's lower back, a discec-tomy, fusion and graft.

¶ 35. McReynolds, a vocational expert, concluded that based upon Beecher's limited education, poor academic achievement and failed efforts to obtain a GED, he was not a candidate for retraining and based upon Dr. Noonan's work restrictions, Beecher was permanently and totally disabled. Because the facts here are nearly indistinguishable from the facts of Balczewski, an identical result is compelled.

CONCLUSION

¶ 36. By holding that Beecher failed to establish a prima facie case because he "could have made more of an effort" to find work, LIRC subjected Beecher to a standard that is not the law in Wisconsin. Once that constraint is removed, we conclude that prima facie proof of total disability was adduced at the hearing. Because Beecher met his burden, Outokumpu must be given an opportunity to rebut this evidence by showing that some kind of suitable work is regularly and continuously available to Beecher. We therefore reverse and remand this matter for the purpose of permitting Outokumpu to present evidence, if any it has, in rebuttal of Beecher's prima facie case.

By the Court. — Order reversed and cause remanded.

       While Beecher's factual discussion does provide citations to documents in the record, he does not utilize the numerical references provided in the circuit court's compilation of the record. The State takes issue with many of Beecher's facts and does provide its own factual recitation; however, citations to the record using the numerical references provided in the record are minimal. Such failure is a violation of Wis. Stat: Rule 809.19(l)(d) and (3) of the rules of appellate procedure, which requires parties to set out facts "relevant to the issues presented for review, with appropriate references to the record." (Emphasis added.) An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957).

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

       LIRC's authority for this proposition includes Hainey v. Protein Blenders, Inc., 445 N.W.2d 398 (Iowa Ct. App. 1989); Dehlbom v. Industrial Special Indemnity Fund, 930 P.2d 1021 (Idaho 1997); Jacobsky v. C. D'Alfonso & Sons, Inc., 358 A.2d 511 (Me. 1976); Redgate v. Sroga's Standard Service, 421 N.W.2d 729 (Minn. 1988); and a dissent in Schepanovich v. U.S. Steel Corp., 669 P.2d 522 (Wyo. 1983). While we generally agree with LIRC's assertion that we may consider other jurisdictions' practices and reasoning for assistance, these cases are in no way binding precedent and we see no need to examine other jurisdictions when Wisconsin case law is clear.


author: ANDERSON, J.

text:
    Gene W Schmit, Rosemary T. Schmit, Fillmore E. Ott, Elizabeth Jane Ott, Richard E. Paulus and Joann V Paulus, Plaintiffs-Appellants, v. Terry Klumpyan, Paula Klumpyan, Carla J. Schmit, Michael Schmit and Renee Schmit, Defendants-Respondents.
    Court of Appeals

      No. 02-2387.

      Submitted on briefs February 19, 2003.

    Decided April 16, 2003.

    2003 WI App 107
    (Also reported in 663 N.W.2d 331.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thad W. Jelinske and Seth P. Hartigan of Domnitz, Mawicke & Goisman, S.C., Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas A. Merkle and Gregory W. Lyons of O'Neil, Cannon & Hollman, S.C., Milwaukee.
    Before Brown, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. This appeal requires us to consider whether sufficient evidence was presented to establish that the initiation and continuation of a partition action constituted an abuse of process. To prevail on an abuse of process claim, a party must present evidence that another party used the process in a manner not intended and to gain a collateral advantage. We reverse; the evidence presented in this case does not establish that the partition action was used for any purpose other than its intended purpose, the resolution of a dispute over real estate owned by multiple parties.

Procedural Background

¶ 2. Gene W. Schmit and Rosemary T. Schmit (Trustees of the Gene W Schmit and Rosemary T. Schmit Revocable Trust), Fillmore E. Ott, Elizabeth Jane Ott, Richard E. Paulus and Joann V Paulus (Schmit) are owners of a 75% interest in a 37-acre parcel of land located near the intersection of 1-43 and State Trunk Highway 60 in the town of Grafton, Ozaukee county. The remaining 25% interest is held by Terry Klumpyan, Paula Klumpyan, Carla J. Schmit, Michael Schmit and Renee Schmit (Klumpyan). Schmit and Klumpyan hold title to the parcel as tenants-in-common. Schmit received an Option to Purchase (Option) for the parcel from a developer identified as FRED-GRAFTON TWO, L.L.C., which Schmit was willing to accept but which Klumpyan refused to accept. Schmit brought a partition action under Wis. Stat. ch. 842 (2001-02) seeking the sale of the property and distribution of the proceeds according to each party's ownership interest. Klumpyan responded with an answer and a counterclaim, alleging that the partition action constituted an abuse of process, "[t]he specific intended result of the instant action is not for partition, nor for judicial sale, but rather to threaten, harass, leverage, intimidate and force the Defendants into agreeing to and entering into the FRED option."

¶ 3. The abuse of process counterclaim was tried before the trial court, which found that the partition action was an abuse of process and that Klumpyan was entitled to damages equal to the attorney's fees and costs totaling $66,734.48. The trial court denied Schmit's motion for reconsideration and stayed execution of the judgment pending appeal. Schmit appeals both the finding that the partition action was an abuse of process and the award of attorney's fees. We will discuss the relevant facts and the trial court's decision after setting the stage with a discussion of the pertinent law.

Standard of Review

¶ 4. In this appeal, Sehmit challenges the trial court's conclusion that Klumpyan presented sufficient evidence to establish an abuse of process. The trial court's decision that Klumpyan met the burden of proof involves determinations of fact and law; we will divide the trial court's decision into factual findings and legal conclusions and apply a different standard of review to each division. See Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357 (1983). We will uphold the trial court's factual findings as long as they are not clearly erroneous. Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983). It is because the trial court is in a better position to decide the weight and relevancy of the testimony and the credibility of the witnesses that an appellate court gives substantial deference to the trial court's findings of fact. Allied Processors, Inc. v. W. Nat'l Mut. Ins. Co., 2001 WI App 129, ¶ 12, 246 Wis. 2d 579, 629 N.W.2d 329, review denied, 2001 WI 117, 247 Wis. 2d 1034, 635 N.W.2d 782 (Wis. Sept. 19, 2001) (No. 00-1490).

¶ 5. In contrast, we do not accord the trial court deference when reviewing its conclusions of law because there is nothing intrinsic to its determination which gives the trial court any advantage over an appellate court. State v. Panknin, 217 Wis. 2d 200, 207, 579 N.W.2d 52 (Ct. App. 1998). Whether the evidence presented at trial is sufficient to support a cause of action for abuse of process is a question of law we will decide independently. Pronger v. O'Dell, 127 Wis. 2d 292, 297, 379 N.W.2d 330 (Ct. App. 1985). Given that Sehmit limits the challenge to the trial court's conclusion that the partition action was an abuse of process, we accept the trial court's factual findings and confine our independent review to the question of whether those facts constitute an abuse of process.

Abuse of Process

¶ 6. The tort of abuse of process is a vague, yet simple, concept. See 2 Dan B. Dobbs, The Law of Torts § 438 (2001). In Brownsell v. Klawitter, 102 Wis. 2d 108, 114, 306 N.W.2d 41 (1981), the Wisconsin Supreme Court reiterated Wisconsin's adoption of the general definition of the tort found in the Restatement (Second) of Torts § 682' (1977):

One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.

The essence of this cause of action is the misuse of the court's power, "usually to compel the victim to yield on some matter not involved in the suit." Dobbs, supra, at §438.

¶ 7. In Wisconsin, there are two elements of abuse of process. First, a "wilful act in the use of process not proper in the regular conduct of the proceedings." Brownsell, 102 Wis. 2d at 115. This element requires evidence of "[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process. . . and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Thompson v. Beecham, 72 Wis. 2d 356, 362, 241 N.W.2d 163 (1976). As the supreme court explained in Thompson:

[T]he process must be used for something more than a proper use with a bad motive. The plaintiff must allege and prove that something was done under the process which was not warranted by its terms. The existence of an improper purpose alone is not enough, for this improper purpose must also culminate in an actual misuse of the process to obtain some ulterior advantage.

Id. at 363.

¶ 8. The second element of abuse of process is a subsequent misuse of the process. Id. at 362. This element requires evidence of "coercion to obtain a collateral advantage, not properly involved in the proceeding itself," id., or of use of the process "to effect an object not within the scope of the process," or of any other improper purpose. Brownsell, 102 Wis. 2d at 113 (citation omitted) (emphasis omitted).

¶ 9. A key component of the second element is the requirement that the process be used to obtain a collateral advantage, an advantage that is "not a benefit to the suitor that the process was designed to secure." Dobbs, supra, at § 438. The attempt to obtain a collateral advantage is an important component because the tort is characterized as an attempt to use process as a means of extortion. See Restatement (second) of Torts § 682 cmt. b (1977). An early decision of the Wisconsin Supreme Court clarifies that the inquiry is "whether the process has been used to accomplish some unlawful end, or to compel the defendant to do some collateral thing which he would not legally be compelled to do." Docter v. Riedel, 96 Wis. 158, 161, 71 N.W 119 (1897).

¶ 10. For example, in Maniaci v. Marquette University, 50 Wis. 2d 287, 300, 184 N.W.2d 168 (1971), the supreme court held that the filing of a petition for temporary detention under Wis. Stat. § 51.04(1) (1965-66) to detain an individual rather than to examine her mental health was the seeking of a collateral advantage. In Thompson, the supreme court pointed out that an instigator's use of process to silence legitimate criticism of his ministry or to embarrass and punish critics is a collateral advantage. Thompson, 72 Wis. 2d at 364. The use of a properly issued subpoena to prevent a witness from performing a public function is another example of collateral advantage. Brownsell, 102 Wis. 2d at 115.

¶ 11. The instigator's personal like or dislike of the target of the process is not relevant. A comment to the Restatement underscores that "there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite." Restatement (second) of Torts § 682 cmt. b (1977) (emphasis added). As explained in the comment, "the entirely justified prosecution of another on a criminal charge, does not become abuse of process merely because the instigator dislikes the accused and enjoys doing him harm." Id. Likewise, where the process is used for a purpose for which it was not intended, there is an action for abuse of process even if the instigator bears no malice or harbors no grudges against the target. See Strid v. Converse, 111 Wis. 2d 418, 426, 331 N.W.2d 350 (1983).

¶ 12. Some jurisdictions follow a formulation that limits an abuse of process claim to a misuse of process after a lawsuit is filed. See Moffett v. Commerce Trust Co., 283 S.W.2d 591, 599 (Mo. 1955). In those states, the filing of an action cannot be the trigger for an abuse of process action. Wisconsin follows a broader formulation under which either the commencement of a suit, Maniaci, 50 Wis. 2d at 300 (petition to detain individual rather than examine her mental health can constitute an abuse of process), or the misuse of process after the suit is started, Brownsell, 102 Wis. 2d at 115 (proper issuance of a subpoena to prevent a witness from performing a public duty), can serve as the trigger for an abuse of process claim. See Dobbs, supra, at § 438.

¶ 13. As we begin our consideration of whether the evidence Klumpyan presented was sufficient to establish an abuse of process, we must keep in mind that public policy guarantees citizens access to the courts. See Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 474, 565 N.W.2d 521 (1997) (citizens' right to judicial access must be "adequate, effective, and meaningful"). Because of its potential chilling effect on the right of access to the courts, the tort of abuse of process is disfavored and must be narrowly construed to insure the individual a fair opportunity to present his or her claim. DeVaney v. Thriftway Mktg. Corp., 953 P.2d 277, 284 (N.M. 1997).

Discussion

¶ 14. The Option acknowledged the fractured ownership interests in the parcel and required Schmit to obtain, within thirty days, either an undivided 100% interest in the parcel or the voluntary consent of Klumpyan to the sale of the parcel under the terms of the Option. The Option also provided that if Schmit failed to secure the consent of Klumpyan:

Seller agrees to immediately thereafter commence a partition action under Wisconsin law and thereafter diligently and in good faith prosecute such action to completion so as to allow Buyer to obtain 100% fee title to the Property in accordance with and on the terms and conditions of this Option.

Less than thirty days after receiving the Option, Schmit filed the partition action. The complaint set forth the ownership interests of all parties, that an Option had been received, that Schmit wished to accept but Klumpyan refused to accept, and that a physical division of the parcel would reduce the value of the various ownership interests. In the complaint, Sehmit sought the "sale of the Property pursuant to the provisions of Chapter 842 Wis. Stats, and that the proceeds of this sale be bought into Court and divided among the parties according to their respective rights and interests."

¶ 15. Klumpyan responded with a counterclaim that alleged the partition action was an abuse of process. In the trial court, the hub of Klumpyan's theory centered on the Option and the requirement that Sehmit commence a partition action if Klumpyan refused to accept the Option. While Klumpyan acknowledged that "a partition action is one way to resolve disputes over land," he argued that Schmit's partition action was an abuse of process because the Option obligated Sehmit to commence the action. "[T]his action was brought solely to force the defendants into selling the property at plaintiffs price, to transfer title, 'in accordance with and on the terms and conditions of this Option.'"

¶ 16. After brief testimony from two of the principals and the attorney for Sehmit who negotiated the Option, the trial court agreed with Klumpyan's theory. In its bench decision, the trial court commented that "from the perspective of the defendant's viewpoint" it was the Option which "triggered the lawsuit." The court held that "it was the intent of the buyer's [sic] to use the Option of partition as leverage to obtain something which partition doesn't provide; and that is, 100 percent title in order to permit the plaintiff to sell it." In determining that the partition action was an abuse of process the court reasoned:

The law really provides no guidance, except in the phrase when it says "primarily for a purpose for which it was not designed." And that's where this case hangs. I have to decide whether the intent of these plaintiffs to trigger partition primarily to force, to allow them to deliver the goods in this Option; or in frustration casting their hands in the air and force Sheriffs Sale. And I think from all the [sic] I've heard today, and from the way the case has been handled, it appears to me that the defense has met their burden.
And I believe that, as I did this morning, that this process was used and intended for a purpose for which it was not designed; and that was to lever the defense so that this Option could be honored; so that it could, so that to allow the buyer to obtain 100 percent fee title to the property in accordance with the terms and conditions of this Option.
It is something that the sellers, the 75 percent sellers, could not guarantee, could not assure; yet they contractually bound themselves to do it. And they brought this lawsuit for that purpose; and that purpose is not a purpose for which it was intended. (Emphasis added.)

¶ 17. Schmit pursued a motion to reconsider in which he first argued that because a court has equitable powers when it is ruling in a partition action, the court is not bound to any specific remedy and could have found the terms and conditions of the Option equitable and granted that remedy. Schmit argued there was no abuse of process because a sale according to the terms and conditions of the Option was a legitimate objective of the partition action. The second argument advanced in the motion to reconsider was that Klumpyan failed to prove any definitive act after the action was commenced that was an abuse of process.

¶ 18. Not persuaded by Schmit's arguments, the trial court denied the motion to reconsider;

So the way I read that is the subsequent misuse of process has to be something subsequent to the motive, to the Court's determination of that motive.
Now motive is crystal clear here.... [T]he majority owners of the property . .. believed sincerely that this was the best deal; and believed that the minority owners . .. didn't know any better and were obstructing a good deal. And this group used their ability and their skill and their enterprise to leverage [the minority owners] into doing it [the majority's] way.
But what occurred here was the motive to enforce the Option; and the subsequent misuse of the process was the very way everything was executed .... The lawsuit itself was structured in such a fashion that even during it's process parties were advancing various arguments. That there may be other equities involved; there may be other issues involved. Even in the process of the case the Court was being pushed in ways which would have advanced the Option. (Emphasis added.)

¶ 19. The trial court stressed that Schmit's intent, motive and practice was to coerce Klumpyan into accepting the Option. The court stated that all of Schmit's actions, from preparing the Option to executing the Option to commencing the partition action, were taken to coerce Klumpyan into acquiescing to the terms of the Option. The court concluded that the coercion employed by Schmit was to gain the collateral advantage of having Klumpyan accept the Option.

¶ 20. We are bound by the trial court's factual finding that Schmit's motive in commencing the partition action "was to lever the defense so that this Option could be honored." See Noll, 115 Wis. 2d at 643. Nevertheless, we conclude that Schmit's motive for filing and maintaining the partition action does not amount to an abuse of process. See Pronger, 127 Wis. 2d at 297. We reach this conclusion because Schmit used the partition action for the purpose for which it was designed.

¶ 21. The trial court erred in its decision when it stated:

The law really provides no guidance, except in the phrase when it says "primarily for a purpose for which it was not designed." And that's where this case hangs. I have to decide whether the intent of these plaintiffs to trigger partition primarily to force, to allow them to deliver the goods in this Option; or in frustration casting their hands in the air and force Sheriffs Sale. (Emphasis added.)

As explained by the Restatement, the significance of the phrase, primarily for a purpose for which it was not designed, "is that there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to [Schmit]." See Restatement (second) of Torts § 682 cmt. b (1977).

[N]o right of action exists for damages resulting from the institution and prosecution of a civil action if the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint, even if the plaintiff had an ulterior motive in bringing the action....

1 Am. Jur 2d Abuse of Process § 11 (1994).

¶ 22. A partition action is a remedy under both the statutes and common law that applies to all disputes over property held by more than one party. Watts v. Watts, 137 Wis. 2d 506, 535, 405 N.W.2d 303 (1987). Partition is an equitable proceeding; a court of equity seeks to do justice between the parties, Jezo v. Jezo, 23 Wis. 2d 399, 404, 127 N.W.2d 246 (1964), and the trial court is not restricted to the statutory remedies— partition along undisputed lines or partition by sheriffs sale — but it is within the discretion of the trial court to order any remedy, including a private sale by the parties, that is equitable. See Heyse v. Heyse, 47 Wis. 2d 27, 37, 176 N.W.2d 316 (1970).

¶ 23. The trial court found that Schmit's ulterior motive in bringing the partition action was to force Klumpyan to accept the terms and conditions of the Option. As the Restatement explains, Schmit's motive is not controlling. Granted, Schmit's desire to accept the Option is the ulterior motive that triggered the commencement of the partition action, but it cannot serve as the basis of a cause of action for abuse of process because the sole purpose of a partition is to resolve disputes over property held by multiple parties. Watts, 137 Wis. 2d at 535. As majority owner, Schmit was stymied by Klumpyan's refusal to sell the property; the only alternative he had was to commence a partition action to force either a physical division of the property or a sale of the property.

¶ 24. The trial court also erred in holding, "the subsequent misuse of process has to be something subsequent to the motive." The court erred because Schmit's motive is not relevant; therefore, how the process is used after Schmit's motive became apparent is not significant to the existence of the cause of action. The requirement of "a subsequent misuse of the process," Thompson, 72 Wis. 2d at 362, is referring to a perversion of process after the commencement of a lawsuit; for example, threatening to continue the lawsuit solely to embarrass and harass the other party. See id. at 364.

¶ 25. Missing in this case is any evidence that Schmit used the partition action to gain a collateral advantage — the second element of the cause of action — to seek to force Klumpyan to do some collateral thing that Schmit could not legally compel Klumpyan to do. See Docter, 96 Wis. at 161. There is no evidence that Schmit used the partition action to extort or put pressure on Klumpyan to achieve a goal other than the sale of the property, a legitimate goal of a partition action. "For abuse of process to occur there must he use of the process for an immediate purpose other than that for which it was designed and intended. The usual case of abuse of process is one of some form of extortion ...." Restatement (second) of Torts § 682 cmt. b (1977). There is a failure of proof that "something was done under the process which was not warranted by its terms." Thompson, 72 Wis. 2d at 363.

¶ 26. The equitable nature of a partition action gives the trial court the discretion to fashion a remedy that meets the needs of the specific case. See Mulder v. Mittelstadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223 (Ct. App. 1984). Equity does not limit the trial court to the statutory partition remedies found in Wis. Stat. § 842.02(2). The power of the court to "enlarge the scope of the ordinary forms of relief, and even to contrive new ones adapted to new circumstances" makes it possible that in its discretion the trial court could have ordered a sale tracking the terms and conditions of the Option. Mulder, 120 Wis. 2d at 115. That the terms and conditions of the Option were "in play" establishes that Schmit was seeking a remedy the process was intended to secure and not a collateral advantage or an unlawful result.

Conclusion

¶ 27. Klumpyan failed to present sufficient evidence to support the claim that Schmit's partition action constituted an abuse of process. Although Klumpyan established that the Option provided the impetus for Schmit to commence the partition action, Schmit did not initiate the partition action nor did he improperly use process to coerce Klumpyan to provide a benefit Schmit was not entitled to in the partition action. Therefore, we reverse the judgment of the trial court finding that Schmit's partition action was an abuse of process and awarding damages to Klumpyan.

By the Court. — Judgment reversed.

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

       We have previously explained "process" as follows:
      In its broadest sense, the term "process" comprehends all the acts of the court from the beginning of a proceeding to its end; in its narrower sense, it is the means of compelling the defendant to appear in court after the suing out of the original writ in a civil case and after indictment in a criminal case.

        Wells v. Waukesha County Marine Bank, 135 Wis. 2d 519, 536-37, 401 N.W.2d 18 (Ct. App. 1986).

       In concluding that initiation of an action could be enough to support an abuse of process claim, the Iowa Supreme Court explained:
      The existence of [the abuse of process] cause of action recognizes that even in meritorious cases legal process may be abused. That abuse involves using the process to secure a purpose for which it is not intended. We can see no reason why there must be a subsequent activity to support the cause of action. Such activity may be very probative in determining the intent to abuse; however, there need not be such a subsequent action to commit the tort. To rule otherwise would protect the tortfeasor when the abuse is most effective — where the issuance of the process is sufficient to accomplish the collateral purpose.

        Mills County State Bank v. Roure, 291 N.W.2d 1, 5 (Iowa 1980).

       Public policy requires that we narrowly construe the abuse of process cause of action when it is applied to a partition action that is intended to resolve disputes over real estate, such as whether or not to sell. If we were to affirm the concept that Schmit's motive to sell the parcel is a perversion of a partition action and is an abuse of process, we would be permitting co-owners, unwilling to sell, to hold a parcel hostage and coerce co-owners, willing to sell.

       Because we conclude that the trial court erred in holding that Klumpyan presented sufficient evidence to establish that Schmit's partition action was an abuse of process, Klumpyan is not entitled to damages and we need not consider Schmit's challenge to the trial court's calculation of damages.