author: PETERSON, J.

text:
    Anna G. Culbert, Plaintiff-Appellant, Valley Health Plan, by its recovery agent, Meridan Resource Company, Intervening Plaintiff, ABC Insurance Company, Subrogated-Plaintiff, v. Dr. David Ciresi, Luther Hospital, Midelfort Clinic, Dr. Richard Cochrane and Eau Claire Anesthesiologists, Defendants-Respondents.
    Court of Appeals

      No. 02-3320.

      Submitted on briefs May 5, 2003.

      Decided June 17, 2003.

    2003 WI App 158
    (Also reported in 667 N.W.2d 825.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mark L. Krueger of Green-halgh & Krueger, S.C. of Baraboo.
    On behalf of the defendants-respondents, Dr. David Ciresi, Luther Hospital, and Midelfort Clinic, the cause was submitted on the brief of Donald K. Schott of Quarles & Brady, LLP of Madison.
    On behalf of the defendants-respondents, Dr. Richard Cochrane and Eau Claire Anesthesiologists, the cause was submitted on the brief of Barrett J. Corneille of Corneille Law Group, LLC of Madison.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 10-27-03.

   PETERSON, J.

¶ 1. Anna Culbert appeals an order dismissing her medical malpractice claim because the statute of limitations had expired. She argues: (1) the statute of limitations was tolled by her original federal action, and (2) equitable estoppel bars the defendants from raising the statute of limitations as a defense. We disagree and affirm the order.

BACKGROUND

¶ 2. On September 22, 1998, Culbert underwent surgery to her right leg at Luther Hospital in Eau Claire. Dr. David Ciresi and Dr. Richard Cochrane participated in an artery bypass of her right leg. An injury to Culbert's spinal cord, caused by a blood clot, was discovered on September 24 and Culbert underwent emergency surgery that same day. As a result of the spinal cord injury, Culbert lost the use of her right leg and is now confined to a wheelchair.

¶ 3. Culbert's medical records are headed "Mayo Health System." Culbert filed a medical malpractice action on April 6, 2000, against the Mayo Foundation in the federal district court in Minnesota. The body of the complaint alleged negligence by Dr. Ciresi, Dr. Co-chrane, and the "physicians and nurses of Luther Hospital . . . ."

¶ 4. Mayo filed a motion to dismiss and provided an affidavit stating that it did not employ Ciresi and Cochrane and had no responsibility for the day-to-day operations of Luther Hospital. Culbert therefore voluntarily dismissed her action on June 26, 2000.

¶ 5. Culbert's attorney began preparing a new complaint to be filed in Wisconsin. The defendants were Dr. Ciresi and Luther Hospital, and Dr. Cochrane and Eau Claire Anesthesiologists. Before filing, the attorney for Dr. Ciresi and Luther Hospital contacted Culbert's attorney. Ciresi and Luther's attorney asked that all correspondence and pleadings for the new state action be served upon her instead of serving Ciresi and the hospital directly. Culbert's attorney sent a copy of the as yet unfiled complaint and attached a cover letter stating, "If you are not willing to accept service on behalf of Luther Hospital and Dr. Ciresi please advise me immediately." Ciresi and Luther's attorney wrote back stating, "This letter will confirm that I accepted service of the Complaint... ."

¶ 6. The summons and complaint were filed on September 1, 2000. On September 6, 2000, unauthenticated copies of the summons and complaint were served on Dr. Cochrane and Eau Claire Anesthesiologists. All the defendants filed answers alleging as affirmative defenses that there was insufficient service and that the court lacked personal jurisdiction.

¶ 7. In February 2002, the defendants moved for dismissal or summary judgment on the grounds of defective service because, among other things, they were never served with authenticated copies of the summons and complaint. Culbert acknowledged the error, and the trial court dismissed the action without prejudice on May 28, 2002.

¶ 8. ■ Culbert filed the present action on March 13, 2002, alleging the same facts as in the federal action and the first Wisconsin action. The defendants moved to dismiss, arguing the statute of limitations had run. Culbert first argued that the federal action tolled the statute of limitations from the date she filed the federal complaint, April 6, 2000, until the time for appeal passed on July 26, 2000. Thus, she argued the statute of limitations was tolled for 111 days, plus an additional 123 days for a mandatory mediation period. See Wis. Stat. § 893.54. The three-year statute of limitations on Culbert's claim would have expired on September 24, 2001. The present action was filed on March 13, 2002. If the statute of limitations tolled as Culbert argues, it would not have expired until May 14, 2002.

¶ 9. Alternatively, Culbert argued that because the defendants accepted service of the unauthenticated summons and complaint and engaged in months of discovery, they should be estopped from asserting the statute of limitations as a defense. The court granted the defendants' motion to dismiss with prejudice. Cul-bert appeals.

DISCUSSION

I. Tolling of the Statute of Limitations

¶ 10. Culbert argues that the federal action tolled the statute of limitations. This involves the interpretation and application of Wisconsin's tolling statutes, which is a question of law we review independently. State v. Murdock, 2000 WI App 170, ¶ 18, 238 Wis. 2d 301, 617 N.W.2d 175. . *

¶ 11. Wisconsin Stat. § 893.15 provides:

(2) In a non-Wisconsin forum, the time of commencement or final disposition of an action is determined by the local law of the forum.
(3) A Wisconsin law limiting the time for commencement of an action on a Wisconsin cause of action is tolled from the period of commencement of the action in a non-Wisconsin forum until the time of its final disposition in that forum.

Therefore, we must look to the law of the federal court to determine when the Minnesota case was commenced.

¶ 12. Federal Rule of Civil Procedure 3 states that a civil action is commenced by filing a complaint with the court. Culbert urges us to stop our analysis here and conclude that because she filed the federal action on April 6, 2000, the statute of limitation tolled from that time until it was dismissed, and the appeal time expired on July 26, 2000, plus an additional 123 days for the mandatory mediation period. See Wis. Stat. § 893.54. Therefore, the statute of limitations would not have expired until May 14, 2002. Because the present action was filed on March 13, 2002, Culbert claims she was within the statute of limitations.

¶ 13. However, Culbert's federal action was voluntarily dismissed. In federal courts, a voluntary dismissal means an action is a nullity. Fed. R. Civ. E 41(a)(1); see also Robinson v. Willow Glen Acad., 895 Fed.2d 1168 (7th Cir. 1990). In Robinson, the court held that a voluntarily dismissed federal action does not toll the Wisconsin statute of limitations. Id. at 1169. This is because a voluntarily dismissed federal action is a nullity, having no effect on a statute of limitations. Id.

¶ 14. Culbert claims Johnson v. County of Crawford, 195 Wis. 2d 374, 536 N.W.2d 167 (Ct. App. 1995), not Robinson, governs this case. In Johnson, we stated, "We see nothing. . . that exempts certain causes of action [from tolling] because the first action to enforce that cause of action was voluntarily dismissed." Id. at 381. However, in Johnson, the original action was filed in state court. Id. at 378. Here, the original action was filed in federal court. Thus, Johnson does not apply to Culbert's federal action.

¶ 15. Culbert further argues that, while federal law determines when the action was commenced, we should use Wisconsin law to determine the effect of voluntary dismissal on the tolling of the statute. However, Fed. R. Civ. E 41(a)(1) states that an action that is voluntarily dismissed in federal court is not commenced. We cannot simply ignore the federal rule, as Culbert urges us to do. It is integral to determining when the federal action was commenced, which is what Wis. Stat. § 893.15(2) directs us to examine. Consequently, because Culbert's federal action was never commenced under federal law, the statute of limitations was not tolled.

II. Estoppel

¶ 16. Alternatively, Culbert argues that the defendants' actions in the first Wisconsin case should estop them from raising the statute of limitations as a defense in the second Wisconsin case. Whether to apply estoppel to preclude a party from raising a defense is within the trial court's discretion. Gonzalez v. Teskey, 160 Wis. 2d 1, 13, 465 N.W2d 525 (Ct. App. 1990). We affirm the trial court's discretionary determinations if it applied the correct law to the record and, through a logical process, reached a result a reasonable judge could reach. Rodak v. Rodak, 150 Wis. 2d 624, 631, 442 N.W2d 489 (Ct. App. 1989).

¶ 17. A trial court is to consider six factors in deciding whether to apply equitable estoppel. One of these is: "The doctrine may be applied to preclude a defendant who has been guilty of fraudulent or inequitable conduct from asserting the statute of limitations[.]" Hester v. Williams, 117 Wis. 2d 634, 644-45, 345 N.W.2d 426 (1984). In applying these factors, the trial court in the present case determined the "defendants here did not lie in the weeds, waiting until the last moment to strike, and are not responsible for the jurisdictional defects associated with this action and the earlier case." Further, the court noted the "Catch-22" situation the defendants were in. This "Catch-22" was that the defendants' attorneys needed to conduct discovery until the statute of limitations ran in the event Culbert corrected the procedural error. However, they could not alert Culbert to her noncompliance with the Wisconsin statutes because they could have been accused of not zealously representing their clients' best interests. Consequently, the court found that equitable estoppel did not apply.

¶ 18. Culbert relies primarily on Ocasio v. Froedtert Mem'l Luth. Hosp., 2002 WI 89, ¶¶ 22, 24, 254 Wis. 2d 367, 646 N.W.2d 381, where our supreme court stated that a defendant may not engage in "game playing" or "lie in the weeds until the statute of limitations [runs]." Culbert maintains that this is what the defendants did in this case.

¶ 19. Culbert points to the communications between her attorney and Ciresi and Luther's attorney that took place before the first Wisconsin case was filed. Culbert claims that Ciresi and Luther's attorney solicited service and led Culbert's attorney to believe the service was valid. Additionally, Culbert argues that engaging in seventeen months of discovery amounted to lying in the weeds, waiting for the statute of limitations to run. Applying these circumstances to the factors from Hester, Culbert argues the defendants' conduct was inequitable and that she relied on the conduct to her detriment.

¶ 20. We reject Culbert's attempt to compare this case with the circumstances in Ocasio. To begin with, Culbert had adequate notice that there were procedural defects. Each defendant raised the affirmative defenses of insufficient process and lack of personal jurisdiction in their answers to the complaint. As a result, Culbert knew the defendants were claiming a procedural defect, yet she never attempted to determine what that defect was. While the defendants were required to plead their affirmative defenses, they were not required to do more. A defendant need not alert and spell out a defect in a case, especially when the defect is dispositive. In fact, to do so would conflict with the defense attorney's duty to zealously represent the client. Hester, 117 Wis. 2d at 643-44. This is the "Catch-22" situation that the trial court referred to in its written order.

¶ 21. Culbert argues that the defendants' "key defenses were buried in lists of 'boilerplate.'" The legal significance of this argument is unclear. Nevertheless, we observe that although each provider's answer contained a number of defenses, the ones relevant here were by no means "buried." The defenses regarding service of process and jurisdiction were each among the first defenses listed in a section clearly labeled "Affirmative Defenses." Even a cursory reading should have alerted Culbert to the issues.

¶ 22. Additionally, accepting service of a defective complaint does not waive the right to challenge procedural defects. Falkner v. Guild, 10 Wis. 563, 575 (1860). Consequently, Culbert could not rely on the communication from Ciresi and Luther's attorney to cure defective service. Further, we note that any action by Ciresi and Luther's attorney, even if it did amount to estoppel, would not bind the other defendants, Cochrane and Eau Claire Anesthesiologists.

¶ 23. Finally, the fact that the defendants engaged in discovery until the statute of limitations ran does not estop them from using the statute of limitations as a defense. Moving forward with discovery is not equivalent to representation that a party is not going to pursue the defenses it asserted in its answer. Lord v. Hubbell, Inc., 210 Wis. 2d 150, 161, 563 N.W.2d 913 (Ct. App. 1997).

¶ 24. The first thing that must be shown under the Hester factors is that the defendants are guilty of fraudulent or inequitable conduct. Id. at 644-45. The record shows, and the trial court reasonably concluded, that the defendants did not engage in any fraudulent or inequitable conduct. Thus, the trial court correctly determined that estoppel does not apply.

By the Court. — Order affirmed.

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

       Culbert also argues that (1) the federal action tolled the statute against the defendants even though they were not named in the federal action, and (2) the statute of limitations was tolled even though she failed to file a request for mediation. However, our determination that the federal action was a nullity is dispositive and we need not address these issues.

       Midelfort Clinic makes a separate argument that the statute of limitations has run as to it because it was not named as a party in either previous action or in the previous mediation request. Because we conclude the statute of limitations has run for all defendants, we need not address this argument.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. Kevin Harris, Defendant-Respondent.
    Court of Appeals

      No. 02-2433-CR.

      Submitted on briefs April 23, 2003.

      Decided June 18, 2003.

    2003 WI App 144
    (Also reported in 667 N.W.2d 813.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Steven A. Koch of Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.E, Elkhorn.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review granted 10-1-03.

   ANDERSON, J.

¶ 1. The State appeals from a circuit court order granting Kevin Harris's postconviction motion to withdraw his guilty plea to the charge of first-degree sexual assault, as a repeater, of a child who had not attained the age of thirteen years contrary to Wis. Stat. § 948.02(1) (2001-02). The State contends that the circuit court erred when it allowed Harris to withdraw his guilty plea because of the prosecutor's failure to turn over information — prior to the entry of the plea — that the child had reported being sexually assaulted by her grandfather. The circuit court did not err in its decision. Accordingly, we affirm.

Facts

¶ 2. On April 24, 2001, the State filed a criminal complaint against Harris alleging that he had sexual contact with six-year-old B.M.M. and that he had failed to comply with the terms of his bond. Harris was a thirty-one-year-old mentally ill individual with a ninth grade education. The charges were based on a report given by B.M.M. B.M.M. related that when she was looking for a friend in her neighborhood, Harris invited her into his apartment. She said that once she was in his apartment, Harris asked her if she wanted to learn what boyfriends did; he kissed her and touched her vaginal area. She said that she began to cry, left Harris's apartment, and walked home. She told her parents several days later. When contacted by the police, Harris first denied having had a child in his apartment at all. Later, he contacted the police and informed them that B.M.M. had been in his apartment and that he had touched her leg and head.

¶ 3. Harris waived his preliminary hearing on May 2, 2001. The arraignment occurred at that same time. At the arraignment, Harris entered pleas of. not guilty to all of the counts, reserving his right to supplement those pleas at a later date. A twelve-person jury trial was set for August 6-8, 2001, and a status hearing date was set for June 6, 2001.

¶ 4. On May 30, 2001, Harris filed a demand for discovery and inspection with the court and the State. In it, Harris demanded that the State provide all exculpatory evidence, including evidence that would lead to further investigation.

¶ 5. Additionally, Harris changed his plea to a plea of not guilty by reason of mental disease or defect (NGI). The court ordered a psychological examination, which was conducted by Dr. Steven Braam and filed with the court on July 11, 2001. After reviewing Dr. Braam's report, Harris decided not to pursue an NGI plea and informed the court that the defense would be seeking its own expert to conduct an evaluation. However, Harris later informed his attorney that he did not wish to pursue a consultation with the second doctor and that he wished to enter a guilty plea.

¶ 6. On July 25, 2001, Harris pled guilty to first-degree sexual assault of a child, as a repeater. As part of the plea agreement, a bail jumping count in this case, plus one count of disorderly conduct while armed, and one count of carrying a concealed weapon would be dismissed and read in for the purposes of sentencing. On September 21, 2001, the court sentenced Harris to an initial period of thirty years' confinement, followed by fifteen years of extended supervision, for a total sentence of forty-five years.

¶ 7. Shortly after sentencing, based on the directive of District Attorney Phillip Koss, Assistant District Attorney Maureen Boyle informed Harris's trial counsel that in June 2001, B.M.M. made an allegation that her grandfather had sexually assaulted her in February 2001. In her allegation, B.M.M. reported that her grandfather had touched her vaginal area as well as her "butt crack." Boyle had not previously disclosed this information to the defense.

¶ 8. Harris filed a Motion for Postconviction Discovery and a Motion to Withdraw Guilty Plea. The court conducted a hearing on July 25, 2002. Following arguments by both attorneys, the court granted Harris's motion to withdraw his guilty plea and entered an order to that effect. The court found that the State failed to turn over potentially exculpatory evidence in violation of Harris's constitutional rights. The court found that Harris was unaware of the potential challenges to the case because of the violation. The court noted Harris's offer of proof that he would not have pled guilty if the evidence had been disclosed to him. The State appeals.

Standards of Review

¶ 9. A motion for withdrawal of a plea ordinarily is addressed to the circuit court's discretion. State v. Sturgeon, 231 Wis. 2d 487, 495, 605 N.W.2d 589 (Ct. App. 1999). When a motion to withdraw a plea is made after sentencing, the defendant must establish by clear and convincing evidence that withdrawal is necessary to correct a manifest injustice. Hatcher v. State, 83 Wis. 2d 559, 564, 266 N.W2d 320 (1978). To sustain the circuit court's decision, this court must ensure that the circuit court's determination was made upon the facts of record and in reliance on the appropriate and applicable law. Sturgeon, 231 Wis. 2d at 495. We review questions of constitutional fact independently to determine whether any constitutional principles have been offended. Id. at 496. However, the underlying historical facts remain subject to the clearly erroneous standard. Id.

Discussion

¶ 10. The State argues that the circuit court erred when it determined that the prosecutor's failure to disclose information about B.M.M.'s report of a sexual assault by her grandfather violated Harris's constitutional rights. We do not agree and for both constitutional and statutory reasons, we uphold the order of the circuit court.

¶ 11. Constitutional Issue. The leading Wisconsin case on withdrawal of a plea when the State has suppressed exculpatory evidence prior to a plea is Sturgeon. After a complaint was filed against Sturgeon alleging burglary and misdemeanor theft as a party to the crime, Sturgeon filed a Demand for Discovery and Inspection, which included a request for "[a]ll exculpatory evidence." Id. at 490, 492. As a result, Sturgeon's attorney examined the district attorney's file and discovered a police report detailing Sturgeon's confession. Id. at 492. The confession itself was not reduced to writing. Id. At the preliminary hearing, an alleged accomplice in the crimes testified against Sturgeon in accord with Sturgeon's confession, implicating Sturgeon in the planning and execution of the theft and burglary. Id. Sturgeon then filed a motion to suppress his confession, contending that it was not voluntary. Id. The trial court denied Sturgeon's motion.

¶ 12. Plea agreement discussions ensued. Id. at 493. An agreement was negotiated whereby Sturgeon would plead guilty to the burglary charge and the State would dismiss and read in the theft charge. Id. In addition, the State agreed to not seek prison time. Id. Faced with Sturgeon's confession and the incriminating testimony of his alleged accomplice, Sturgeon's attorney recommended that Sturgeon accept the proposal. Id. Sturgeon agreed, and following his plea of guilty, Sturgeon was convicted of burglary as a party to the crime. Id. at 490. The trial court withheld sentence and placed Sturgeon on probation for five years, conditioned on 120 days in the county jail. Id. at 493.

¶ 13. Represented by new counsel, Sturgeon moved to withdraw his guilty plea and sought an order directing the Lake Geneva police department to produce all. material related to any statements given by Sturgeon. Id. The motion stated that Sturgeon had reason to believe that his statements to the police included his exculpatory assertion that he was unaware of his alleged accomplice's plan to steal. Id. The State agreed to voluntarily turn over the requested materials. Id. These materials revealed a transcript containing exculpatory assertions made by Sturgeon and given to the police three days after the crimes. Id. at 493-94. The State acknowledged that this exculpatory version of Sturgeon's role in the event was not included in the police report documenting Sturgeon's confession. Id. at 494. The circuit court concluded that Sturgeon had not established a manifest necessity for withdrawal of his guilty plea. Id. at 495.

¶ 14. On appeal, the issue was whether the circuit court properly denied Sturgeon's request to withdraw his guilty plea after sentencing. Id. at 490. We concluded the circuit court erred and reversed because of the State's failure to provide Sturgeon with exculpatory evidence related to his confession to the police and because such failure caused Sturgeon to plead guilty. Id. We concluded that the "relevant inquiry is whether there is a reasonable probability that, but for the failure to disclose, the defendant would have refused to plead and would have insisted on going to trial." Id. at 503-04. The factors that may bear upon this question include:

(1) the relative strength and weakness of the State's case and the defendant's case; (2) the persuasiveness of the withheld evidence; (3) the reasons, if any, expressed by the defendant for choosing to plead guilty; (4) the benefits obtained by the defendant in exchange for the plea; and (5) the thoroughness of the plea colloquy. These are examples of relevant considerations and are not intended to be exhaustive. The particular case may present other relevant considerations.

Id. at 504.

¶ 15. In the appeal at bar, the State asserts that our holding in Sturgeon has been effectively overruled by United States v. Ruiz, 536 U.S. 622 (2002). We do not agree. The issue before the Court in Ruiz was "whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose 'impeachment information relating to any informants or other witnesses.' " Id. at 625 (citation omitted).

¶ 16. Immigration agents found thirty kilograms of marijuana in Angela Ruiz's luggage, after which federal prosecutors offered her what is known in the Southern District of California as a "fast track" plea bargain. Id. A "fast track" plea bargain asks a defendant to waive indictment, trial, and an appeal. Id. In return, the government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence. Id.

¶ 17. The prosecutors' proposed plea agreement contained a set of detailed terms. Id. Among other things, it specified that "any [known] information establishing the factual innocence of the defendant" "has been turned over to the defendant," and it acknowledged the government's "continuing duty to provide such information." Id. (citation omitted). At the same time, it required that the defendant "waiv[e] the right" to receive "impeachment information relating to any informants or other witnesses" as well as the right to receive information supporting any affirmative defense the defendant raises if the case goes to trial. Id. (citation omitted). Because Ruiz would not agree to this waiver, the prosecutors withdrew their offer and indicted Ruiz for unlawful drug possession. Id. Despite the absence of any agreement, Ruiz ultimately pled guilty. Id. at 625-26.

¶ 18. At sentencing, Ruiz asked the judge to grant her the same two-level downward departure that the government would have recommended had she accepted the "fast track" agreement. Id. at 626. The government opposed her request, and the district court denied it, imposing a sentence within the standard guidelines. Id.

¶ 19. Ruiz appealed her sentence to the United States Court of Appeals for the Ninth Circuit. Id. The Ninth Circuit vacated the district court's sentencing determination. Id. The Ninth Circuit pointed out that the Constitution requires prosecutors to make certain impeachment information available to a defendant before trial. Id. It decided that this obligation entitles defendants to receive that same information before they enter into a plea agreement. Id. The Ninth Circuit also decided that the Constitution prohibits defendants from waiving their right to that information. Id. It held that the prosecutors' standard "fast track" plea agreement was unlawful because it insisted upon that waiver. Id. The Ninth Circuit remanded the case so that the district court could decide any related factual disputes and determine an appropriate remedy. Id.

¶ 20. The government sought certiorari review. Id. It stressed what it considered to be serious adverse practical implications of the Ninth Circuit's constitutional holding. Id. The United States Supreme Court granted the government's petition. Id. The Court stated: "The constitutional question concerns a federal criminal defendant's waiver of the right to receive from prosecutors exculpatory impeachment material — a right that the Constitution provides as part of its basic 'fair trial' guarantee." Id. at 628. The question before the Court was whether the Constitution requires preguilty plea disclosure by the federal government of impeachment information. Id. at 629.

¶ 21. The Supreme Court offered three main considerations for its ultimate holding that the Constitution does not require the federal government to disclose material impeachment evidence prior to entering into a plea agreement with a criminal defendant. Id. at 629-33. First, it stated that impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (knowing, intelligent, and sufficiently aware). Id. at 629. It noted that impeachment information is difficult to characterize as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. Id. at 630.

¶ 22. Second, the Court reiterated its previous case law holdings that the Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. Id. It then specifically included a defendant's ignorance of grounds for impeachment of potential witnesses at a possible future trial as not barring a court from accepting that defendant's guilty plea. See id. at 631.

¶ 23. Third, it stated that "due process considerations, the very considerations that led [it] to find trial-related rights to exculpatory and impeachment information in Brady [v. Maryland, 373 U.S. 83 (1963)] and Giglio [v. United States, 405 U.S. 150 (1972)], argue against the existence of the 'right' that the Ninth Circuit found here." Ruiz, 536 U.S. at 631. The Court pointed out that the added value of the Ninth Circuit's "right" to a defendant is often limited, for it depends upon the defendant's independent awareness of the details of the government's case. Id.

¶ 24. The Court then discussed the fact-specific way the case before it protected Ruiz's constitutional rights: "the proposed plea agreement at issue here specifies, the Government will provide 'any information establishing the factual innocence of the defendant.'" Id. The Court emphasized that "[t]hat fact, along with other guilty-plea safeguards, see Fed. Rule Crim. Proc. 11, diminishes the force of Ruiz's concern that, in the absence of impeachment information, innocent individuals, accused of crimes, will plead guilty." Ruiz, 536 U.S. at 631 (citing cf. McCarthy v. United States, 394 U.S. 459, 465-67 (1969) (discussing Rule ll's role in protecting a defendant's constitutional rights)).

¶ 25. The Court discussed its specific concerns with upholding the Ninth Circuit's rule. It stated that the Ninth Circuit's rule could "seriously interfere with the Government's interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure efficient administration of justice." Ruiz, 536 U.S. at 631. It said that the rule risks premature disclosure of government witness information, which could disrupt ongoing investigations and expose prospective witnesses to serious harm. Id. at 631-32. It concluded that " [consequently, the Ninth Circuit's requirement could force the Government to abandon its 'general practice' of not 'disclos[ing] to a defendant pleading guilty information that would reveal the identities of cooperating informants, undercover investigators, or other prospective witnesses.'" Id. at 632 (citation omitted). The Court opined that the Ninth Circuit's rule could require the government to devote substantially more resources to trial preparation prior to plea bargaining, thereby depriving the plea-bargaining process of its main resource-saving advantages or it could lead the government instead to abandon its heavy reliance upon plea bargaining in a vast number — 90% or more — of federal criminal cases. Id.

¶ 26. The Court then specifically upheld the constitutionality of the "fast track" plea agreement's requirements that a defendant (1) acknowledge that the government has turned over "any [known] information establishing the factual innocence of the defendant" (the "fast track" agreement also provided the government's acknowledgement that it has a continuing duty to provide such information), (2) waive the right to receive impeachment information relating to any informants or other witnesses, and (3) waive the right to receive information the government has regarding any "affirmative defense" he or she raises if the case goes to trial. Id. at 625, 632-33 (citation omitted).

¶ 27. Upon careful examination of Sturgeon and Ruiz, we hold the two to be distinguishable. In Ruiz, the defendant did not make a written discovery demand for all "exculpatory" evidence. In fact, Ruiz did not make a discovery demand at all. Rather, the government's proposed "fast track" plea agreement required Ruiz to acknowledge that the government had turned over "any [known] information establishing the factual innocence of the defendant" and provided the government's ac-knowledgement that it has a continuing duty to provide such information. Ruiz, 536 U.S. at 625. Ruiz refused to accept the "fast track" plea agreement because of its requirement that she also waive the right to receive "impeachment information relating to any informants or other witnesses." Id. In its analysis, the Court considered it relevant that Ruiz was protected both by the provision in the federal "fast track" plea agreement requiring the government to provide her "any information establishing the factual innocence of the defendant," and by other guilty-plea safeguards contained in the federal rules. Id. at 631.

¶ 28. Conversely, in Sturgeon, the defendant was prosecuted by the State of Wisconsin and was not protected by a specific provision such as that found in the federal "fast track" agreement offered to Ruiz, nor was Sturgeon protected by guilty-plea safeguards contained in the Federal Rules of Criminal Procedure. Moreover, unlike Ruiz, Sturgeon made both a Brady demand and a statutory demand for exculpatory evidence. Sturgeon, by filing a discovery demand, invoked the State's constitutional and statutory obligation to comply; in contrast, Ruiz, in not filing a discovery demand, did not invoke an obligation on the government's part. In fact, the government, in its "fast track" plea offer, was in essence asking Ruiz to forego filing a discovery demand and thereby asking her to forego invoking any governmental constitutional obligations to provide her with material impeachment evidence prior to entering the plea agreement.

¶ 29. We read the thrust of the Supreme Court's holding in Ruiz to be rooted in its desire to preserve the federal "fast track" plea bargain process, which the Court implies offers the federal defendant adequate built in protections. The Court emphasizes that without the federal "fast track" plea bargain process, there would be significant interference with the administration of the federal plea bargain process as a whole— possibly leading the federal government "to abandon its heavy reliance upon plea bargaining in a vast number —90% or more — of federal criminal cases." Ruiz, 536 U.S. at 632.

¶ 30. In short, we are satisfied that the facts and analysis of Ruiz limit its application to federal plea negotiations; thus, it does not overrule Sturgeon. Moreover, we again emphasize that in Sturgeon, we addressed a defendant's pre-plea written discovery demand and a State prosecutor's failure to turn over exculpatory evidence in its exclusive control. We do not believe that the United States Supreme Court meant Ruiz — a federal case which did not address a written pre-plea discovery demand — to sweep with such a broad brush as to overrule a state precedent, such as Sturgeon, which holds that once a defendant makes a pre-plea discovery demand requesting any potentially exculpatory evidence in the State's exclusive control, the State must provide the defense with the evidence before the plea is taken. Cf. Brady, 373 U.S. at 90 (where the United States Supreme Court stated: "We usually walk on treacherous ground when we explore state law, for state courts, state agencies, and state legislatures are its final expositors under our federal regime." (Footnote omitted.)).

¶ 31. Thus, the circuit court correctly applied a Sturgeon analysis in making its decision — in so doing, it properly exercised its discretion when it allowed Harris to withdraw his plea. Here, as in Sturgeon, we rely on Hatcher, 83 Wis. 2d at 565, which established the following test for plea withdrawal: When a defendant's assertion of a violation of a constitutional right forms the basis for a plea withdrawal request, he or she may withdraw the plea as a matter of right by demonstrating: (1) that a violation of a constitutional right has occurred; (2) that this violation caused the defendant to plead guilty; and (3) that at the time of the plea, the defendant was unaware of the potential constitutional challenges to the case against him or her because of the violation. See also Sturgeon, 231 Wis. 2d at 496.

¶ 32. Violation of a Constitutional Right. We first examine whether Harris has established a constitutional violation. A defendant has a constitutional right to all material exculpatory evidence in the hands of the prosecutor. State v. DelReal, 225 Wis. 2d 565, 570, 593 N.W2d 461 (Ct. App. 1999); Brady, 373 U.S. at 87. Harris contends that the State failed to comply with this duty to turn over such evidence.

¶ 33. Here, the evidence is potentially exculpatory for several reasons: one, because it shows an alternative source for B.M.M's sexual knowledge; two, it shows that it is possible that the child did not wish to disclose the sexual assault by the grandfather and projected it onto Harris; three, suppression of this evidence potentially violates Harris's right of confrontation, that is, it impairs Harris's ability to effectively cross-examine the prosecution's expert witness, a witness who the State's notice related "will testify regarding reactive behaviors common among child sexual abuse victims."

¶ 34. As it did at the trial court level, the State argues that the evidence of the sexual assault by the child's grandfather is not material to Harris's case under State v. Pulizzano, 155 Wis. 2d 633, 456 N.W2d 325 (1990). The circuit court characterized the State's argument as an attempt at "backfilling . . . because [it] didn't turn over the evidence to start with." We agree with the circuit court's characterization of the State's self-serving argument which seemingly ignores that it is the court's function, not the prosecutor's, to determine what may or may not be admitted into evidence. See Nelson v. State, 59 Wis. 2d 474, 484, 208 N.W2d 410 (1973). What is more, Harris moved the court to reopen his case; he did not ask the court to admit Pulizzano evidence in his motion, so the question whether to admit Pulizzano evidence was not before the circuit court.

¶ 35. Furthermore, whether there was a constitutional violation is not governed by whether the circuit court would ultimately reject the evidence under Puliz-zano. The relevant inquiry is what was in Harris's mind when he chose to plead guilty without the benefit of the withheld evidence. Here, the record is not fully developed; for example, the preliminary hearing was waived. Until the record is established, it is not possible to determine if the suppressed evidence is admissible under Pulizzano or some other exception to the rape-shield law.

¶ 36. Hence, the State violates the Constitution if it withholds the type of information that could form the basis for further investigation by the defense. Here, the prosecution withheld evidence of a prior sexual assault. Thus, under our independent standard of review of the ultimate constitutional fact question, we hold that this evidence is potentially exculpatory and that it was within the exclusive control of the prosecution. As such, Harris has established a constitutional violation.

¶ 37. Awareness of the Potential Constitutional Challenge Because of the Violation. Before addressing the second Hatcher factor, causation, we discuss the third factor — whether, at the time of the guilty plea, Harris was unaware of the potential constitutional challenges to the case because of the violation. See Hatcher, 83 Wis. 2d at 565. We do so because this question is governed, in large part, by the undisputed fact that the evidence was in the State's exclusive control. The State does not attempt to argue that Harris was aware of his potential constitutional challenges. Clearly, Harris was unaware of his potential constitutional challenges to the case against him because he was not made aware of B.M.M.'s sexual assault accusations against her grandfather until after his pleas and sentencing. For this reason, under our independent standard of review of the constitutional fact question, we hold that Harris has satisfied this third factor under Hatcher.

¶ 38. Causation. Finally, we examine the second Hatcher factor — whether the constitutional violation caused Harris to plead guilty. See id. With regard to this factor, we are guided by Sturgeon, which, like the case at bar, addressed a plea withdrawal request based on the postplea discovery of exculpatory evidence. See Sturgeon, 231 Wis. 2d at 502. In Sturgeon, we concluded that the relevant inquiry for this factor is whether there is a reasonable probability that, but for the failure to disclose, the defendant would have refused to plead and would have insisted on going to trial. Id. at 503-04.

¶ 39. The subfactors which may bear upon this question include but are not limited to: (1) the relative strength and weakness of the State's case and the defendant's case; (2) the persuasiveness of the withheld evidence; (3) the reasons, if any, expressed by the defendant for choosing to plead guilty; (4) the benefits obtained by the defendant in exchange for the plea; and (5) the thoroughness of the plea colloquy. Id. at 504.

¶ 40. First, the relative strength and weakness of the State's case and Harris's case are difficult to ascertain because Harris was without knowledge of B.M.M.'s alleged sexual assault by her grandfather. Thus, Harris —who had a history of extensive psychological problems — was left to rely on his word versus the statements of a six-year-old girl and an expert witness who was set to testify that the child's actions were consistent with an individual who had been sexually assaulted. In contrast to a six-year-old child and an expert, Harris's testimony would likely be assessed by a fact finder with skepticism. We conclude that this factor weighs in Harris's favor.

¶ 41. Second, the persuasiveness of the withheld evidence also weighs in Harris's favor. The withheld evidence is an alleged sexual assault, which occurred two months before Harris's alleged sexual assault and which details a similar type of sexual contact as that alleged against Harris. This type of evidence constitutes evidence which may be allowed under Pulizzano (though we again note that the circuit court at the postconviction hearing did not have before it a Puliz-zano motion because the State's suppression of the information prevented Harris from seeking a Pulizzano motion). The withheld evidence would have presented an alternative explanation for the origin of the allegations against Harris. If the evidence had been turned over to Harris before he pled, he would have had the opportunity to do further investigation and attempt to present the Pulizzano evidence.

¶ 42. Third, we additionally conclude that the reasons expressed by Harris for choosing to plead guilty weigh in his favor. At the postconviction motion hearing, the defense was ready to present testimony from Harris and his former counsel. The defense asked the circuit court its preference as to providing this testimony or making an offer of proof. The court called for an offer of proof. The defense then made an offer of proof that Harris, given his mental health history, believed that he had no choice but to plead guilty in light of the testimony of B.M.M. and the State's expert witness. The State did not object to the offer of proof. Moreover, this offer of proof is comparable to the offer of proof accepted in Sturgeon where the defendant offered his testimony that he felt he had no choice but to plead guilty in light of the confession he made to the police and his alleged accomplice's testimony. See Sturgeon, 231 Wis. 2d at 506.

¶ 43. Fourth, we consider the benefits obtained by Harris in exchange for the plea. In the plea agreement, Harris pled guilty to first-degree sexual assault of a child, as a repeater, which had an exposure of seventy years' imprisonment. In exchange for that plea, three charges were dismissed and read in and the State remained silent. We agree with the circuit court that Harris's benefit was slight relative to the State's benefit in exacting a plea that exposed Harris to imprisonment of seventy years. We conclude that the State received a great deal more in this bargain, and this subfactor weighs in Harris's favor.

¶ 44. Finally, we consider the plea colloquy. Here, like the circuit court in Sturgeon, the circuit court's colloquy with Harris was thorough and complete. See id. Thus, this factor weighs in favor of the State. However, this is the least persuasive of the factors because a plea colloquy, no matter how thorough, could never address a situation in which the State has withheld exculpatory evidence given that such an event is unknown to the circuit court at the time of the plea. Id. at 506-07.

¶ 45. We conclude that the record in this case establishes, as a matter of law, that Harris has demonstrated that the constitutional violation caused him to plead guilty.

¶ 46. Statutory Violation. Harris made a discovery demand pursuant to Wis. Stat. § 971.23, which governs our state's discovery laws. Section 971.23(1) provides in pertinent part:

(1) What a disthict attoeney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it is within the possession, custody or control of the state:
(h) Any exculpatory evidence. (Emphasis added.)

The district attorney's nondisclosure of the evidence of B.M.M.'s allegation of a previous sexual assault is a violation of the statute. The State argues that the statutory term "exculpatory evidence" is limited to evidence that is constitutionally required to be disclosed. The State references Sturgeon for this proposition where, in a footnote, we stated that the defendant's due process claim under Brady is commensurate with the requirement of § 971.23(l)(h). Sturgeon, 231 Wis. 2d at 497 n.4. We disagree with the State's reading. Our review of the legislative history of § 971.23(l)(h) does not support that it was simply meant to be a codification of Brady. The discovery statute in Wisconsin is apart from constitutional law principles and directs the district attorney, upon demand, to disclose "[a]ny exculpatory evidence." Harris made a statutory demand and the State's failure to disclose the potentially exculpatory evidence of an alleged sexual assault by B.M.M.'s grandfather was a violation of § 971.23(l)(h).

Conclusion

¶ 47. The circuit court did not err when it determined that the prosecutor's failure to disclose information about B.M.M.'s report of a sexual assault by her grandfather violated Harris's constitutional rights. In addition, the State violated Wis. Stat. § 971.23(l)(h) when it failed to disclose potentially exculpatory evidence in response to Harris's statutory demand. As such, Harris has carried his burden of demonstrating that a withdrawal of his guilty plea is necessary to avoid a manifest injustice. We uphold the order of the circuit court.

By the Court. — Order affirmed.

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

       This document is not part of the appellate record. However, it is referred to in Harris's motion to withdraw his guilty plea and again referred to by Harris's attorney in the transcript of the postconviction motion hearing. The State does not dispute that the discovery demand was filed.

       In Giglio v. United States, 405 U.S. 150, 154-55 (1972), the United States Supreme Court held that if the assistant United States attorney, who first dealt with a key government witness, promised the witness that he would not be prosecuted if he cooperated with the government, such a promise was attributable to the government, regardless of whether the attorney had the authority to make it, and nondisclosure of the promise, which was not communicated to the assistant United States attorney who tried the case, would constitute a violation of due process requiring a new trial.


author: SNYDER, J.

text:
    Re/Max Realty 100, Plaintiff-Appellant, v. Howard Basso, Jr. and Basso Builders, Inc., Defendants-Respondents.
    Court of Appeals

      No. 02-2650.

      Submitted on briefs May 21, 2003.

      Decided June 18, 2003.

    2003 WI App 146
    (Also reported in 667 N.W.2d 857.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí James L. McAlister oiDeutch & Weiss, Fox Point.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Terry P. Race, Whitewater.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Re/Max Realty 100 (Re/Max) appeals from a judgment in favor of Howard Basso, Jr. and Basso Builders, Inc. (Basso) in its breach of contract action. Re/Max claims that the trial court erred in denying its motion for a directed verdict at the close of its case-in-chief and argues that given the evidence, case law and language of the listing contract, it is entitled to its commission from Basso. We disagree and affirm the judgment.

FACTS

¶ 2. On December 14,1999, Basso signed the first of three listing contracts for the sale of a new home in Burlington, Wisconsin. Re/Max was the real estate broker in each of the three listing agreements, with Mike Martin as the listing agent. The listing agreement gave Re/Max the exclusive right to sell the house during the agreement's term. Martin commenced efforts to sell the property but there was no serious interest in the home. Martin continued to work to sell the property and Basso repeatedly renewed the listing agreement.

¶ 3. The third listing contract is the focus of this appeal. The third listing contract was signed on May 3, 2000, and ended, by its own terms, on June 16, 2000. The listing price of the home was set at $199,900 and the commission was established at 6%, 5% if Martin was the selling agent. This listing contract stated, in relevant part:

EARNEST MONEY: If Broker holds trust funds in connection with the transaction, they shall be retained by Broker in Broker's trust account. Broker may refuse to hold earnest money or other trust funds. Should Broker hold the earnest money, Seller authorizes Broker to disburse the earnest money pursuant to the terms of the offer to purchase, option or exchange agreement used in the transaction. If the transaction fails to close and the earnest money is disbursed to Seller, then upon disbursement to Seller the earnest money shall be paid first to reimburse Broker for cash advances made by Broker on behalf of Seller and one half of the balance, but not in excess of the agreed commission, shall be paid to Broker as Broker's full commission in connection with said purchase transaction and the balance shall belong to the Seller. This payment to Broker shall not terminate this Listing.

¶ 4. In May 2000, another Re/Max agent, Scott Surges, showed the property to Helen and Ronald Smolik. On May 17, 2000, the Smoliks wrote an offer to purchase the property; Basso countered. The Smoliks' offer to purchase specifically addressed how earnest money would be handled by Re/Max:

EARNEST MONEY
HELD BY: Unless otherwise agreed, earnest money shall be paid to and held in the trust account of the listing broker (buyer's agent if Property is not listed or Seller's account if no broker is involved), until applied to purchase price or otherwise disbursed as provided in the Offer. CAUTION: Should persons other than a broker hold earnest money, an escrow agreement should be drafted by the Parties or an attorney. If someone other than Buyer makes payment of earnest money, consider a special disbursement agreement.

In order to bring Basso and the Smoliks closer together on their offers, Martin and Basso agreed that Martin would reduce his commission. Martin then drafted Basso's second counteroffer. The Smoliks signed the second counteroffer on Saturday, May 20, 2000. Helen Smolik also wrote a personal check in the amount of $25,000 in earnest money. The closing was scheduled for Friday, May 26, 2000.

¶ 5. A home inspection took place on Tuesday, May 23, 2000. At that time, having realized that the Smoliks' out-of-state check would not clear in time for the closing, Surges arranged for the Smoliks to provide him with a certified check for the earnest money and Surges then returned the Smoliks1 personal check to them; however, the Smoliks never produced the certified check. Basso was never told that Surges returned the personal check to the Smoliks. The Smoliks failed to appear at the May 26, 2000 closing and the transaction did not take place. Basso asked Martin what Ke/Max planned to do about the return of the earnest money; Martin informed Basso that, in essence, Re/Max did not intend to pursue the Smoliks for the money but whatever Basso "got out of it, it was all [his]," that Martin was not looking for a commission. After May 26, 2000, Basso legally pursued the Smoliks himself for the earnest money and eventually received the $25,000.

¶ 6. Re/Max then sued Basso, alleging that it was due a commission under the listing contract. Basso counterclaimed, alleging breach of contract and breach of fiduciary duty. A jury trial took place on August 13, 2002. At the close of Re/Max's case-in-chief, Re/Max moved for a directed verdict. This motion was denied. The jury found that Re/Max was not entitled to receive a commission pursuant to the terms of the listing contract; the jury also found that Re/Max did not breach the contract or its fiduciary duty to Basso. After verdict, Re/Max moved for judgment notwithstanding the verdict. This motion was denied. The trial court then entered an order for judgment and judgment dismissing all claims and counterclaims. Re/Max appeals.

DISCUSSION

¶ 7. Re/Max argues that the trial court erred in denying its motion for a directed verdict. The standard of review upon the denial of a motion for directed verdict is whether, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion was made, there is any credible evidence to sustain a finding in favor of that party. Warren v. Am. Family Mut. Ins. Co., 122 Wis. 2d 381, 384, 361 N.W2d 724 (Ct. App. 1984). If there is any credible evidence to sustain a cause of action, the case must be submitted to the jury. Id.

¶ 8. Here, Re/Max's complaint against Basso alleged a breach of the listing contract. In order to resolve this issue, we must interpret the contract language. Kailin v. Armstrong, 2002 WI App 70, ¶ 18, 252 Wis. 2d 676, 643 N.W.2d 132. The construction of a written contract is a question of law we review de novo. Id. If the terms of the contract are plain and unambiguous, it is our duty to construe the contract according to its plain meaning even though one of the parties may have construed it differently. Id.

¶ 9. We must be careful to accurately state Re/Max's position on the alleged breach of contract: Re/Max did not seek its commission under the listing contract because it found a ready, willing and able buyer. Rather, Re/Max sought its commission under the provision of the listing contract that provides that it is entitled to the earnest money even if the buyer fails to complete the transaction. The provision of the listing contract relied upon by Re/Max does not support its position.

¶ 10. Both parties appear to agree, implicitly at least, that the Smoliks were ready, willing and able buyers and an enforceable contract existed. However, we agree with Basso that Re/Max appears to assume that its only duty was to obtain an enforceable contract with a buyer and fulfillment of that duty entitled it to a commission; however, the listing contract imposed additional duties upon Re/Max before it was entitled to a commission.

¶ 11. The relevant portion of the listing contract states:

EARNEST MONEY: If Broker holds trust funds in connection with the transaction, they shall be retained by Broker in Broker's trust account. Broker may refuse to hold earnest money or other trust funds. Should Broker hold the earnest money, Seller authorizes Broker to disburse the earnest money pursuant to the terms of the offer to purchase, option or exchange agreement used in the transaction. If the transaction fails to close and the earnest money is disbursed to Seller, then upon disbursement to Seller the earnest money shall be paid first to reimburse Broker for cash advances made by Broker on behalf of Seller and one half of the balance, but not in excess of the agreed commission, shall be paid to Broker as Broker's full commission in connection with said purchase transaction and the balance shall belong to the Seller. This payment to Broker shall not terminate this Listing. (Emphasis added.)

Thus, under the explicit and unambiguous terms of the listing contract upon which Re/Max relies, Re/Max is entitled to its commission only if the buyer fails to complete the transaction and the earnest money is distributed to the seller. Here, by Re/Max's own admission, the earnest money was never distributed to Basso. Thus, under the plain terms of the contract, because the earnest money was never distributed to Basso, Re/Max is not entitled to its commission.

¶ 12. In addition, Re/Max never complied with the terms of the Smoliks' offer to purchase, which indicates that earnest money must be paid to and held in the trust account of the listing broker until applied to the purchase price or otherwise disbursed. Here, by Martin's and Surges's own admissions, this earnest money was never deposited in Re/Max's trust account. In fact, Martin acknowledged that by returning the check to the Smoliks, Re/Max was, in essence, refusing to hold the earnest money, despite the offer to purchase's requirement that it do so. Re/Max did not meet its burden of proof for a directed verdict because in considering all credible evidence and reasonable inferences therefrom in a light most favorable to Basso, there is credible evidence to sustain a finding in Basso's favor. See Warren, 122 Wis. 2d at 384. Thus the case was properly submitted to the jury. See id.

¶ 13. Furthermore, we agree with the trial court that in returning the earnest money check to the Smoliks, Re/Max breached its contract with Basso. Re/Max returned the earnest money to the Smoliks without Basso's knowledge or consent. The listing contract did not permit it to do so. At trial, Martin acknowledged that any basis for a commission had to come from the listing contract and that nothing in the listing contract required earnest money in the form of a certified check. Martin also acknowledged that no one ever told Basso that the personal check had been returned to the Smoliks. Martin conceded that the offer to purchase required Re/Max to hold the earnest money but Re/Max had refused to do so and he could not explain or reconcile this problem. In addition, Surges acknowledged it was a mistake to return the personal check to the Smoliks.

¶ 14. Furthermore, we strongly disagree with Re/Max's assertion that any alleged breach it may have committed was merely "a fly in the ointment." This was a serious breach of duty that a broker owes a client. This breach jeopardized Basso's right to the $25,000 earnest money, a substantial amount of money, and forced him to pursue other remedies on his own.

¶ 15. We also agree with Basso that Re/Max arguably violated its duties under Wis. Stat. § 452.133. Section 452.133 addresses the duties of brokers and states, in relevant part:

(2) Duties to a client. In addition to his or her duties under sub. (1), a broker providing brokerage services to his or her client shall do all of the following:
(a) Loyally represent the client's interests by placing the client's interests ahead of the interests of any other party, unless loyalty to a client violates the broker's duties under sub. (1) or s. 452.137(2).
(b) Disclose to the client all information known by the broker that is material to the transaction and that is not known by the client or discoverable by the client through reasonably vigilant observation, except for confidential information under sub. (l)(d) and other information the disclosure of which is prohibited by law.
(c) Fulfill any obligation required by the agency agreement, and any order of the client that is within the scope of the agency agreement, that are not inconsistent with another duty that the broker has under this chapter or any other law.
(3) Prohibited conduct. In providing brokerage services, a broker may not do any of the following:
(a) Accept any fee or compensation related to the transaction from any person other than the broker's client, unless the broker has the written consent of all parties to the transaction.
(b) Act in a transaction on the broker's own behalf, on behalf of the broker's immediate family, or on behalf of any organization or business entity in which the broker has an interest, unless the broker has the written consent of all parties to the transaction.
(c) Except as provided in s. 452.19, refer, recommend or suggest to a party to the transaction the services of an individual or entity from which the broker may receive compensation for a referral or in which the broker has an interest, unless the broker has disclosed the fact that he or she may receive compensation or has disclosed his or her interest in the individual or entity providing the services.

By returning the check to the Smoliks in the manner that it did, Re/Max arguably placed the needs and interests of its business ahead of Basso's needs, in violation of § 452.133(2)(a); failed to disclose to Basso the return of the check, information material to the transaction, in violation of § 452.133(2)(b); and failed to fulfill the terms of the offer to purchase, in violation of § 452.133(2)(c).

CONCLUSION

¶ 16. Re/Max is not entitled to a commission under the terms of the listing contract as the earnest money was never disbursed to Basso. The trial court was correct in denying Re/Max's motion for a directed verdict. We therefore affirm the judgment.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 809.19(l)(d) (2001-02) requires the parties to provide in their briefs separate sections for their "statement of facts relevant to the issues presented for review" and argument. However, both parties have, inappropriately, interspersed some legal argument and "spin" into what should have been an objective recitation of the factual occurrences of this case. "[Fjacts must be stated with absolute, uncompromising accuracy. They should never be overstated — or understated, or 'fudged' — in any manner." Judge William Eich, Writing the Persuasive Brief, Wisconsin Lawyeb. Magazine, Vol. 75, No. 2 (Feb. 2003). The fact section of a brief is not place for argument.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.


author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. James L. Larson, Defendant-Appellant.
    Court of Appeals
    No. 02-2881-CR.

      Submitted on briefs March 12, 2003.

      Decided June 18, 2003.

    2003 WI App 150
    (Also reported in 668 N.W.2d 338.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Rex R. Anderegg oiAnderegg & Mutschler, LLP of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mark Powers, Waukesha County District Attorney.
    Before Nettesheim, PJ., Brown and Anderson, JJ.
   BROWN, J.

¶ 1. James L. Larson appeals from a judgment convicting him of operating a motor vehicle while intoxicated contrary to Wis. Stat. § 346.63(l)(a) (2001-02). Larson contends that the trial court erred by denying his motion to suppress evidence seized subsequent to a police officer entering his residence without a warrant in violation of his Fourth Amendment rights. This court agrees with Larson and, therefore, reverses the judgment and remands the matter to the trial court for further proceedings.

¶ 2. The following facts are not in dispute. On February 10, 2002, Deputy Jeff Zuhlke of the Waukesha County Sheriffs Department was on a routine patrol when he received a dispatch to look for a possibly intoxicated driver on Highway 18 in the area of Finn's Bar. Dispatch advised Zuhlke that the vehicle in question was a maroon and silver pickup truck. As Zuhlke started heading towards the reported location of the vehicle, he received a second dispatch informing him that a clerk at the Kwik Trip gas station had called dispatch and stated that an intoxicated driver in a vehicle with the same description had just left the gas station without its headlights illuminated. According to the clerk, the driver had seemed intoxicated when he was inside the station. Zuhlke continued traveling in the direction of the vehicle and dispatch provided him with the license plate number of the vehicle. Zuhlke ran the plate number on his squad car's computer, obtained an address for the registered owner, and headed for that location. Zuhlke identified Larson as the registered owner of the vehicle.

¶ 3. As Zuhlke pulled up to the apartment building, he observed a vehicle fitting the general description given by dispatch parked at that address and proceeded to what he believed to be the registered owner's, or Larson's, apartment. Zuhlke's sole purpose for proceeding to the door of the apartment was to investigate its occupant for possibly operating while intoxicated. Zu-hlke, who was in full uniform, knocked on the door and spoke with an individual who answered the door. As part of procedure to ensure his own safety, Zuhlke. placed his foot across the threshold of the doorway, so that the individual who answered the door would not be able to slam the door on him. Zuhlke then began questioning the individual who had answered the door. The individual identified himself as Larson and admitted that he was the owner of the vehicle.

¶ 4. As Zuhlke spoke with Larson, he smelled the odor of intoxicants and detected slurred speech. Larson admitted having just driven home from Finn's Bar and stated that he was home and going to bed. Larson also indicated that he had not consumed intoxicants since he had arrived at his apartment. Based upon his conversation with Larson, Zuhlke believed that Larson was under the influence of an intoxicant and would not be able to drive a motor vehicle. Zuhlke moved further into the apartment and placed Larson under arrest. Lieutenant Dehring, who had just arrived as back up, searched Larson's briefcase and obtained his driver's license. Sometime after the officers placed Larson under arrest, Dehring made contact with both of the callers who had contacted dispatch and identified Larson's truck.

¶ 5. On February 12, Larson was charged with operating a motor vehicle while intoxicated in violation of Wis. Stat. § 346.63(l)(a) and (b). The complaint alleged that this was a second offense, making it a criminal prosecution.

¶ 6. Larson filed a motion to suppress, arguing that Zuhlke lacked probable cause to arrest. At a June 10 hearing concerning the motion to suppress, Larson raised three distinct issues: (1) whether the officer lacked reasonable suspicion to intrude into Larson's apartment to investigate him for possibly operating while intoxicated; (2) whether the officer lacked probable cause to arrest Larson given the officer's failure to request or conduct field sobriety tests or a preliminary breath test; and (3) whether the officer lacked probable cause and exigent circumstances to immediately enter Larson's apartment upon his arrival at that location. The trial court ruled against Larson on all three issues and denied the motion. Larson subsequently pled no contest to the charges and was sentenced to jail. Larson then commenced this appeal.

¶ 7. On appeal, Larson challenges the trial court's denial of his motion to suppress, arguing that his Fourth Amendment rights were violated when Zuhlke entered his apartment without his consent and without an arrest warrant. In reviewing an order denying a motion for the suppression of evidence, we will uphold a circuit court's findings of fact unless they are against the great weight and clear preponderance of the evidence. State v. Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830.(1990). However, the application of constitutional principles to those facts is a question of law that we review de novo. State v. Patricia A.P., 195 Wis. 2d 855, 862, 537 N.W2d 47 (Ct. App. 1995).

¶ 8. The Fourth Amendment to the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV The Wisconsin Constitution is essentially the same. Wis. Const, art. I, § 11. "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (citation omitted). A fundamental safeguard against unnecessary invasions into private homes is the Fourth Amendment's warrant requirement, imposed on all governmental agents who seek to enter the home for purposes of search or arrest. See id. It is not surprising, then, that the United States Supreme Court has recognized that all warrantless searches and seizures inside a home are presumptively unreasonable. Id. at 748-49.

¶ 9. The police bear a heavy burden when trying to establish an urgent need justifying warrantless searches and seizures. See id. at 749-50. Before the government may invade the sanctity of the home without a warrant, the government must demonstrate not only probable cause but also exigent circumstances that overcome the presumption of unreasonableness. See State v. Smith, 131 Wis. 2d 220, 228, 388 N.W2d 601 (1986).

' ¶ 10. The first issue this court must consider is whether Zuhlke's step into the threshold of Larson's apartment, which prevented Larson from closing the door, was an entry into Larson's apartment triggering the Fourth Amendment's warrant requirement. In State v. Johnson, 177 Wis. 2d 224, 227, 501 N.W2d 876 (Ct. App. 1993), two police officers were interviewing individuals in an apartment building where an extremely high number of drug problems had been reported. Johnson entered the apartment building and was subsequently frisked and questioned. Id. Johnson failed to produce identification so the officers accompanied him to a second-floor apartment where he said his identification was located. Id. An officer entered the apartment doorway just enough so Johnson could not slam the door shut. Id. at 228. We concluded that when the police officer placed his foot in the doorway to prevent the defendant from closing the door, the act constituted an entry for Fourth Amendment purposes. Id. at 231. In reaching this conclusion, we explained the "Fourth Amendment has drawn a firm line at the entrance to the house." Id. (citation omitted).

¶ 11. This court's decision in Johnson clearly teaches that even if the officer's incursion only extends from the tips of his toes to the balls of his feet, this incursion is the fixed "first footing" against which the United States Supreme Court and the Wisconsin Supreme Court have previously warned. Id. at 232. Applying this reasoning to the instant case, it is without question that Zuhlke's step into the threshold, preventing Larson from closing the door, was an entry for Fourth Amendment purposes.

¶ 12. The State, citing United States v. Santana, 427 U.S. 38 (1976), maintains that Zuhlke conversed with and arrested Larson in a public place and not in a home and, therefore, no warrant was required and the arrest was lawful. Santana, however, is distinguishable from the case at bar.

¶ 13. In Santana, the United States Supreme Court upheld the warrantless arrest of a defendant who was in a public place. Id. at 42. The defendant, whom one of the officers recognized and had probable cause to arrest, was already standing in the doorway of her house when the police arrived; "one step forward would have put her outside, one step backward would have put her in the vestibule of her residence." Id. at 40 n.l, 42. The Court explained in its conclusion that the defendant, when arrested, was in a public place: "She was not in an area where she had any expectation of privacy.... She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house." Id. at 42.

¶ 14. In contrast, in this case, Larson was not seen by the police until Zuhlke knocked on his apartment door and he answered. Larson had not been musing about his apartment with the door open for everyone outside to see him; unlike the defendant in Santana, he had not, in any way, exposed himself to public view and relinquished his expectation of privacy. As the Indiana Supreme Court has observed,

Opening the door to ascertain the purpose of an interruption to the private enjoyment of the home is not an invitation to enter, but rather is a common courtesy of civilized society. Attendant to this courtesy is the ability to exclude those who are knocking and preserve the integrity of the physical boundaries of the home.

Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998). We therefore reject the State's contention that Zuhlke's conversation with and subsequent arrest of Larson occurred in a public place pursuant to Santana.

¶ 15. Having established that Zuhlke did enter Larson's apartment for purposes of the Fourth Amendment, we next consider whether Zuhlke was permitted to enter Larson's apartment to arrest him for operating while intoxicated without an arrest warrant. The burden to justify a warrantless in-home entry is on the State. Smith, 131 Wis. 2d at 228. As we have indicated, the State must prove that there was probable cause to arrest and, in addition, exigent circumstances that could not brook the delay incident to obtaining a warrant. Id.

¶ 16. To determine if probable cause exists, the court must consider whether "the totality of the circumstances within the arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe . . . that the defendant was operating a motor vehicle while under the influence of an intoxicant." State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986). At the time of his arrival, Zuhlke knew only that two tipsters had called dispatch, alleging that the driver of the maroon and silver truck parked outside the apartment building was driving while intoxicated. Zu-hlke had not yet smelled the odor of intoxicants on Larson's breath, detected his slurred speech, or even obtained his concession that he had been driving the maroon and silver truck. Consequently, we do not believe that it can be reasonably maintained that at the moment Zuhlke put his foot inside the doorway he had probable cause to arrest Larson.

¶ 17. Nevertheless, even if we assume probable cause to arrest existed, the State has not demonstrated that exigent circumstances were present that would justify a warrantless entry. The basic test to determine whether exigent circumstances exist is an objective one: "Whether a police officer under the circumstances known to the officer at the time reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of the suspect's escape." Smith, 131 Wis. 2d at 230. Four factors have been identified that, when measured against the time needed to obtain a warrant, constitute the exigent circumstances required for a warrantless entry: (1) an arrest made in "hot pursuit," (2) a threat to the safety of a suspect or others, (3) a risk that evidence would be destroyed, and (4) a likelihood that the suspect would flee. Id. at 229.

¶ 18. In Welsh, 466 U.S. at 742, the United States Supreme Court considered the issue of whether "the Fourth Amendment prohibits the police from making a warrantless night entry of a person's home in order to arrest him for violation of a nonjailable traffic offense." The facts revealed that Welsh was observed driving his car erratically, causing it to swerve off the road into a field. Id. Even though a witness suggested that he remain with the car and wait for assistance, Welsh walked away from the scene. Id. Police checked the car's registration and, without obtaining a warrant, proceeded to Welsh's home, where he was arrested for driving a motor vehicle while under the influence of an intoxicant. Id. at 742-43.

¶ 19. Although probable cause existed to arrest Welsh, the Supreme Court concluded that the warrant-less entry into Welsh's home violated the Fourth Amendment because the police did not establish the existence of exigent circumstances. Id. at 753. The Court reasoned:

Our hesitation in finding exigent circumstances, particularly when warrantless arrests in the home are at issue, is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

Id. at 750 (citation and footnote omitted).

¶ 20. This court concludes that like the officers in Welsh, the police officer in this case was not faced with exigent circumstances during his encounter with Larson at his apartment. Exigent circumstances may, in some circumstances, arise because of the danger to life if the arrest is not made immediately. Only where a delay in the investigation would gravely endanger lives does this factor in the exigency formulation come into play. The facts of this case do not present such a situation.

¶ 21. Additionally, as reasoned in Welsh, the claim of "hot pursuit" is unconvincing because there was no immediate or continuous pursuit of Larson from the scene of the crime. See id. at 753. Also, because Larson had already arrived at home, and had parked his car, there was little threat to the public safety. See id. Thus, the only potential emergency claimed by the State was the need to ascertain Larson's blood alcohol level.

¶ 22. Arguably, because blood rapidly metabolizes alcohol after a person ceases drinking, an exigent situation may have existed. See State v. Bentley, 92 Wis. 2d 860, 864, 286 N.W.2d 153 (Ct. App. 1979). Without an immediate blood alcohol test, highly reliable and persuasive evidence facilitating the State's proof of Larson's alleged violation of Wis. Stat. § 346.63(l)(a) would be destroyed. However, as expressed in Welsh, a warrantless home arrest cannot be upheld simply because evidence of Larson's blood alcohol level might have dissipated while the police obtained a warrant. See Welsh, 466 U.S. at 753.

¶ 23. The only possible remaining justification for Zuhlke's entry is consent. However, the record is devoid of any evidence suggesting that Larson did or said anything that can be construed as actual or constructive consent for Zuhlke to enter his apartment.

¶ 24. This court concludes that absent a warrant, consent or probable cause and exigent circumstances, police entry into Larson's apartment was illegal, and any evidence gained after the entry into his apartment must be suppressed. Accordingly, this court reverses the decision of the trial court denying Larson's motion to suppress and remands the case to the” trial court for further proceedings consistent with this opinion.

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

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

       The State asserts that Larson waived this argument because he did not raise this issue at the trial court level. This argument is without merit. Larson specifically raised this issue at the suppression hearing, arguing that when "[Zuhlke] crossed the threshold and put his foot across the door" it was a warrantless entry in violation of his Fourth Amendment rights. Furthermore, in its oral ruling the trial court recognized Larson's argument and dismissed it by saying: "[A]s to the intrusion into the apartment by sticking a foot in the door, this court's not prepared to say that's a violation of any, quote, Amendment."

       The police practice of putting a foot in the doorway appears to be a common and widespread practice, at least in Wisconsin, and also may be the practice when investigating tips involving drunk drivers. In at least one other case, an unpublished one, the officer put his foot in the door of a suspected drunk driver following a tip of erratic driving. While State v. Johnson, 177 Wis. 2d 224, 501 N.W2d 876 (Ct. App. 1993), sets forth the law in Wisconsin regarding this practice, this is the first case to apply Johnson to investigation of tips involving intoxicated motorists. Whether we agree with the reasoning in Johnson is beside the point. We are bound by prior published court of appeals opinions. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W2d 246 (1997) (stating that the court of appeals does not have the power to overrule, modify or withdraw language from a published opinion of the court of appeals or of the supreme court).

       In Welsh v. Wisconsin, 466 U.S. 740, 746 n.6 (1984), the petitioner was charged with a second offense OWI, just as Larson was here. Yet, the United States Supreme Court considered the offense to be "minor" at the time of the warrantless entry. See id. at 750. The Supreme Court reasoned as follows:
      The petitioner was charged with a criminal misdemeanor because this was his second such citation in the previous five years. Although the petitioner was subject to a criminal charge, the police conducting the warrantless entry of his home did not know that the petitioner had ever been charged with, or much less convicted of, a prior violation for driving while intoxicated. It must be assumed, therefore, that at the time of the arrest the police were acting as if they were investigating and eventually arresting for a nonjailable traffic offense that constituted only a civil violation under the applicable state law.

        Id. at 746 n.6 (citations omitted).
      We candidly admit that calling any OWI a "minor11 offense makes us wince, even if the first offense only results in a nonjailable civil forfeiture if convicted. See, e.g., State v. Rutzinski, 2001 WI 22, ¶ 35, 241 Wis. 2d 729, 623 N.W2d 516 (comparing a drunk driver to a mobile bomb); State v. Carlson, 2002 WI App 44, ¶ 23, 250 Wis. 2d 562, 641 N.W2d 451 (commenting, "[i]t is clear that a serious threat to human life and well-being is posed by drunk drivers. Drunk driving and its consequences represent one of our society's gravest problems."); State v. Krause, 168 Wis. 2d 578, 590, 484 N.W2d 347 (Ct. App. 1992) (stating that drunk driving is pervasively antisocial and that the "[OWI statute's] escalating penalty scheme reflects a recognition that repeat drunk driving is even more intolerable."). But such is the law and we are not at liberty to ignore it. In this case, there is no evidence that the officer knew Larson was a repeat offender at the time he confronted him in the doorway of Larson's apartment. If he had such knowledge, this might be a different case. Without such knowledge, we are constrained to say that when the officer knocked on Larson's door, he was investigating a nonjailable traffic incident.