author: BROWN, J.

text:
    Wangard Partners, Inc., Plaintiff-Appellant, The Boerke Company, Inc., Plaintiff, v. Gerald Graf, Shirley Graf, Steinhafels, Inc. and Pewaukee Development, LLC, Defendants-Respondents.
    Court of Appeals

      No. 2005AP1420.

      Oral argument April 4, 2006.

      —Decided May 24, 2006.

    2006 WI App 115
    (Also reported in 719 N.W.2d 523.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Paul R. Erickson and Mark J. Andres of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C., of Milwaukee. There was oral argument by Paul R. Erickson.

    On behalf of the defendants-respondents Gerald and Shirley Graf, the cause was submitted on the brief of Lori J. Fabian and Charles M. Davies of Hippenmeyer, Reilly, Moodie & Blum, S.C. of Waukesha. There was oral argument by Lori J. Fabian.

    On behalf of defendants-respondents Steinhafels, Inc. and Pewaukee Development, LLC, the cause was submitted on the brief of Paul E. Benson and Ian A.J. Pitz of Michael Best & Friedrich LLP. There was oral argument by Paul E. Benson.

    Before Brown, Nettesheim and Anderson, JJ.
   BROWN, J.

¶ 1. A commercial real estate broker commenced an action against the buyer and the seller of certain real property, alleging that the parties had conspired to negotiate secretly and to delay the consummation of the agreement they reached in order to avoid paying the broker its commission. The trial court dismissed the complaint on two grounds. First, it understood the law to require that the listing contract contain certain statutory disclosures and concluded that their absence from this listing contract rendered the contract void. Alternatively, it held that the allegations in the complaint "sounded in fraud" and therefore had to be pled with particularity. We disagree. The statute requires only that a broker make the disclosures before providing brokerage services; it imposes no requirement that the disclosures be included within the four corners of the listing contract. Further, the corn-plaint does not plead fraud. The causes of action asserted therein are premised not on fraud but rather on a breach of contract.

¶ 2. On October 29, 2004, Wangard Partners, Inc. filed a complaint against Steinhafels, Inc. and Pewau-kee Development, LLC (collectively Steinhafels) and against Gerald and Shirley Graf. Because we are reviewing a decision based on a motion to dismiss, our recitation of the facts incorporates factual allegations in the complaint. See Lane v. Sharp Packaging Sys., Inc., 2001 WI App 250, ¶ 15, 248 Wis. 2d 380, 635 N.W.2d 896 (motion to dismiss tests sufficiency of the complaint, and we take all allegations therein as true).

¶ 3. The Grafs owned approximately sixty acres of vacant land in Pewaukee, Wisconsin, that they wished to sell. On June 8, 1996, they entered into an exclusive listing contract with Wangard, a broker. Shirley Graf had drafted the document after she had rejected the form WB-5 Commercial Listing Contract that Wangard had prepared. Originally, the agreement was to last until December 30,1996, but the parties extended it by amendments for another two years. In addition, the contract provided that if, prior to the expiration of the agreement, Wangard procured an offer to purchase, or if the Grafs entered into an agreement or granted an option, the contract term would automatically extend up to the date of closing with respect to such offer, agreement, or option.

¶ 4. The listing contract specified several circumstances in which Wangard would be entitled to a seven percent brokerage commission: First, it could earn a commission if it procured a buyer at the listed price and consistent with the other terms of the contract, or if the property was sold pursuant to such terms, or if an exchange occurred. Second, it could earn a commission if the property or any part of it was sold, optioned (and such option was later exercised), exchanged, or otherwise disposed of under terms the Grafs considered acceptable. The final way Wangard could earn a commission was if, during a six-month grace period after the scheduled expiration of the contract, the property was sold, exchanged, or otherwise disposed of to any prospect, or if an option was granted to a prospect during that time which the prospect later exercised. A "prospect" included anyone with whom Wangard or its agents negotiated.

¶ 5. The listing contract required the Grafs to refer anyone making inquiries about the property to Wangard. It further obligated them to notify Wangard of the names of these inquirers. In addition, the contract specified that the Grafs were to cooperate with Wangard throughout the term of the contract.

¶ 6. The listing contract did not contain certain disclosures enumerated in Wis. Stat. § 452.135(2) (2003-04). Wangard provided the Grafs with the required information in a separate document at a later date.

¶ 7. At some point after the Grafs had entered into their listing contract with Wangard, two real estate brokers from The Boerke Company contacted Wangard on behalf of Steinhafels furniture stores, who wanted to purchase some vacant land suitable for building a warehouse. After the brokers investigated the property, Boerke and Wangard introduced Steinhafels to the Grafs. Throughout 1997 and 1998, Wangard worked diligently to assist both defendants in negotiating a contract for the Grafs property.

¶ 8. During this time, Steinhafels made two offers for the property, one on April 18, 1997, and another on August 26, 1998. The Grafs rejected both and informed Wangard that the terms were unacceptable to them. The Grafs also told Wangard that they would not authorize any counteroffer to the second proposal. Throughout the end of 1998, when the listing contract was set to expire, the Grafs represented to Wangard that Steinhafels1 proposals were unacceptable and that no contract would be agreed upon.

¶ 9. Despite this representation and unbeknownst to Wangard, the Grafs continued to meet directly with Steinhafels and reached a secret agreement as to the material terms of a sale at some point during the term of the listing contract or during the six-month grace period applicable to certain agreements with "prospects." This agreement is apparent from representations that Steinhafels made to a planning company and city officials at various meetings— which took place during the spring and summer of 1999 — concerning development plans for the Graf property.

¶ 10. Despite the fact that the defendants had reached an agreement, they delayed consummating the transaction until long after the listing contract had expired so that the Grafs could avoid paying Wangard its commission. Steinhafels submitted its written offer to purchase on March 13, 2001, and the actual sale did not occur until February 28, 2002. This conduct contravened the Grafs' contractual obligations to cooperate with Wangard, to notify Wangard of anyone making inquiries about the property, and to pay Wangard a commission.

¶ 11. The Grafs engaged in this misconduct at the urging of Steinhafels and based on certain representations it made to them. Steinhafels had falsely represented to the Grafs that Wangard was engaging in conduct adverse to their interests. Specifically, it told them that Wangard insisted that Steinhafels include certain terms in its offers that it knew the Grafs would find objectionable. Among these provisions were contingencies requiring the Grafs to partially finance the purchase, requiring hotel developments, and regarding third-party purchasers. Steinhafels also enticed the Grafs with a $294,000 commission it would otherwise have owed Wangard. Steinhafels improperly profited from this diversion of Wangard's commission by using it as consideration for an option to purchase.

¶ 12. Based on the above allegations, the complaint alleged three causes of action against each defendant. It asserted claims for equitable relief and conspiracy to injure against both Steinhafels and the Grafs. Additionally, it claimed breach of contract against the Grafs and intentional interference with contract against Steinhafels.

¶ 13. Both the Grafs and Steinhafels moved to dismiss the complaint. Specifically, they claimed that the listing contract was invalid because it did not include any of the statutory disclosures required by Wis. Stat. § 452.135(2). According to the defendants, the lack of a valid contract precluded Wangard's claims for breach of contract, intentional interference with contract, and conspiracy to injure. They further averred that even if the listing contract was valid, the complaint failed to meet the proper pleading requirements. The defendants maintained that Wangard's allegations "sound in fraud" and therefore must be pled with particularity. In addition, they claimed that Wangard had no cause of action for equitable relief because the law "preclude[s] brokers from obtaining recovery based upon quantum meruit and other quasi-contractual theories." Allowing such relief would contradict the legislature's intent that no broker recover a commission on real estate unless it earns the commission pursuant to the terms of a written agreement. Finally, the Grafs contended that their conduct did not violate the terms of the listing contract even assuming the contract's validity.

¶ 14. The circuit court held a motion hearing and ultimately dismissed the complaint. It adopted the defendants' positions with respect to all arguments. Wangard appeals.

¶ 15. We first address the defendants' contention that Wangard's claims for breach of contract, intentional interference with contract, and conspiracy to injure are doomed by the failure to include statutory disclosures in the listing agreement. The Grafs and Steinhafels assert that Wis. Stat. § 452.135 requires such disclosures and that their absence from the listing contract renders it void.

¶ 16. Our resolution of this issue requires us to interpret Wis. Stat. § 452.135. This exercise presents a question of law for our independent review. See State v. Moran, 2005 WI 115, ¶ 26, 284 Wis. 2d 24, 700 N.W.2d 884 (statutory interpretation and application to a set of facts present questions of law for de novo review). When we interpret a statute, we look first at the language of the statute, and where the statutory meaning is plain and unambiguous, we stop the inquiry and apply the language as written. Id. Intrinsic sources of meaning such as context and structure inform our understanding of the statutory language. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. "[Statutory language is interpreted in the context in which it is used; not in isolation hut as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. Our construction of a statute also seeks to give effect to every part of the statute and avoid surplusage. Id. Only if the statute is ambiguous do we turn to extrinsic sources such as legislative history. Id., ¶ 51.

¶ 17. Accordingly, we begin with the language of Wis. Stat. § 452.135. The statute reads in relevant part:

452.135 Confirmation and disclosure of relationship. (1) No broker may provide brokerage services without an agency agreement that authorizes the broker to provide those brokerage services. The agency agreement shall contain a statement of the terms and conditions of the brokerage services that the broker will provide, including a statement required under s. 452.138, if applicable.
(2) No broker may provide brokerage services to a party to a transaction unless the broker has provided to the party a written agency disclosure form containing all of the following.... [statute goes on to enumerate confidentiality obligations and statements regarding broker's duties to its client and other parties].

We reject the defendants' suggestion that the "terms and conditions of the brokerage services" referenced in § 452.135(1) encompasses the disclosure requirements enumerated in § 452.135(2). The reference in § 452.135(2) to a "disclosure form" would have been superfluous had the legislature intended the disclosures to be included within the four corners of the agency agreement (i.e., the listing contract), and it defies common sense to assume that the drafters used two different terms — "agency agreement" and "disclosure form" — to refer to the same document. Moreover, nothing else in the statute indicates that § 452.135(2) is merely an elaboration on the requirements in § 452.135(1). In our view, "terms and conditions of the brokerage services" refers merely to the terms and conditions to which the parties to the listing contract have agreed. See § 452.135(1).

¶ 18. This conclusion becomes apparent when one views Wis. Stat. § 452.135(1) in conjunction with Wis. Stat. § 452.138. Section 452.135 requires the broker to include "a statement required under s. 452.138, if applicable." Section 452.138 provides that unless the parties agree otherwise, a broker may simultaneously provide brokerage services to multiple clients. It states that "[i]f the broker and a client agree that the broker is to provide brokerage services only to that client, the agency agreement under s. 452.135(1) shall contain a statement of that agreement." Sec. 452.138 (emphases added). In other words, § 452.138 sets forth certain statutory default rules, but the parties to a listing contract may contract out of them by agreement. Sections 452.135(1) and 452.138 do not require the listing contract to contain the default rules, only agreements contracting out of those default rules. Thus, § 452.135(1) requires only terms of agreement to be included in the listing contract. Disclosure duties are not terms of agreement.

¶ 19. Not only does the absence of disclosures from the listing contract not offend the express provisions of Wis. Stat. § 452.135(1), it also does not contravene the mandates of § 452.135(2). Because § 452.135(1) prohibits a broker from rendering brokerage services prior to the agency agreement, the listing contract cannot possibly be a brokerage service. Thus, the mere fact that a broker omitted the disclosures from an agency agreement would not establish that the broker unlawfully provided brokerage services before supplying the disclosure form.

¶ 20. Surrounding provisions also shed light on what the legislature meant by its requirement that a broker provide the disclosure form to "a party to a transaction" before rendering "brokerage services." See Wis. Stat. § 452.135. Wisconsin Stat. § 452.01 defines all of these terms. A "party" includes any person "seeking to sell, exchange, buy or rent an interest in real estate ... [and] includes a person who seeks to grant or accept an option to buy, sell or rent an interest in real estate . . .." See § 452.01(5r). " 'Transaction' means the sale, exchange, purchase or rental of, or the granting or acceptance of an option to sell, exchange, purchase or rent, an interest in real estate...Sec. 452.01(10). These definitions alone establish that both the buyer and the seller in a real estate deal are "parties to the transaction." Because § 452.135(1) prohibits a broker from rendering brokerage services prior to the agency agreement, one "party" will obviously not have entered the picture at the time of the listing contract. "Transactions," by their very nature, require multiple parties. Thus, a client is not yet a party "to a transaction" at the time he or she enters an agency agreement with a broker.

¶ 21. Wisconsin Stat. § 452.01 also defines "brokerage service" as any service described under § 452.01(2)(a)-(h), which supplies a definition of "broker." See § 452.01(3e). The paragraphs relevant to this appeal are § 452.01(2)(a) and (h). They indicate that a broker engages in brokerage services when he or she "[f]or another, and for commission, money or other thing of value, negotiates or offers or attempts to negotiate a sale, exchange, purchase or rental of an interest or estate in real estate, see § 452.01(2)(a), or "[f]or another, and for a commission, money or other thing of value, promotes the sale, exchange, purchase, option, rental or leasing of real estate," see § 452.01(2)(h). Assuming the broker has obeyed Wis. Stat. § 452.135(1), he or she will not have begun providing any of these services at the time the parties enter into the listing contract. Rather, these services will commence at some point thereafter. A broker will be in compliance with § 452.135(2) so long as he or she provides the disclosure form prior to that time.

¶ 22. Although the foregoing suffices to support our holding, we deem it worthwhile to note that corn-mentators appear to have reached a similar conclusion. Wrede H. Smith Jr. & Richard J. Staff, The New Real Estate Agency Law: Redefining the Role of Real Estate Brokers, Wisconsin Lawyer, Oct. 1994, at 9, 58-59 & n.24, notes that Wis. Stat. § 452.135(2) contains a disclosure requirement that requires brokers to communicate to all parties what duties they owe to both client and nonclient parties. According to this source, "The new mandatory agency disclosure form generally will be given to clients when the agency agreement is executed, and to customers when the customer's specific needs begin to be identified and brokerage services start to be rendered." Smith & Staff, supra, at 59. "Generally," of course, suggests that including disclosures in the listing contract is not a requirement but rather a convenient way of meeting the statutory disclosure requirement.

¶ 23. This interpretation, moreover, is consonant with what, according to Smith and Staff, is the purpose of the disclosure requirement, namely, to ensure that all parties to a real estate transaction receive a meaningful explanation of the broker's duties to each party. See id. at 58-59. They observe that in the years preceding the change, considerable confusion existed with respect to the proper role of a real estate agent and what duties the agent owed to buyers and sellers. Id. at 9. Buyers in particular, they noted, often do not understand that the selling agents who help them look for properties actually represent the property owners. Id. at 10. We do not see how omitting the disclosures from a listing contract frustrates the statutory purpose so long as each party receives the proper disclosures before the broker begins engaging in negotiation and other broker services described above; yet, the rigid construction advanced by Steinhafels and the Grafs would invalidate a listing contract even if the broker simultaneously provided the disclosures in a separate document.

¶ 24. We find further support for our holding in the content of the state-approved commercial listing contract form in use at the time Wangard entered into its agency agreement with the Grafs. The parties do not dispute that when Wangard prepared the initial draft of an agreement, it used the state-approved form then in use for commercial listings, which did not include disclosures on it. Steinhafels is quick to point out that the form was changed in 2000 and that the current version of the form does contain the disclosures on it. It asks, rhetorically, "If the disclosures did not have to be in the same document, what was the impetus for the ... change?" We acknowledge the defendants' assertion that administrative forms may not always comply with statutory requirements; in light of the text and purpose of the statute, we deem the absence of the disclosures in the state-approved form to be indicative of the fact that the statute did not require the disclosures to be part of the listing contract.

¶ 25. Moreover, although it is entirely possible that the agency believed such a change was necessary to effectuate the legislative intent, it is also possible that the agency had other reasons for changing the form. The parties appear to agree that at the time Wangard and the Grafs contracted for brokerage services, a separate listing contract form existed which did contain certain disclosures. These contracts were used in the context of agency agreements for the sale of residential property. It is entirely possible that the desire for greater uniformity between residential and commercial listing contracts drove the change. It also may have done so as a convenience, so that the broker would not have to draft a separate disclosure form. In any event, we will not speculate about the reason why the administrative agency that promulgated the forms made the change.

¶ 26. We note that Steinhafels appears to make similar arguments regarding more recent legislative amendments that require the listing contract to contain the disclosures. It opines that the legislature must have intended to clarify the current version of the statutes. Again, however, the legislature could have had any number of reasons for an amendment. It could just as easily have intended to change the law to track current practice. Moreover, we must read Wis. Stat. § 452.135 as written, not based on subsequent developments in the law. Based on the foregoing, we reverse the circuit court's ruling that the absence of disclosures in the listing contract rendered it invalid and unenforceable.

¶ 27. We now turn to several alternative arguments that the defendants raise. First, in their "statement of the case," the Grafs dispute Wangard's interpretation of the listing contract. We understand them to contend that even if the listing contract was valid, the allegations in the complaint do not establish that they have done anything to breach its terms. The Grafs did not, however, incorporate this issue in their argument section. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (inadequately briefed issues need not be reviewed). Moreover, the circuit court never considered this issue. Accordingly, we leave it for the court to address on remand.

¶ 28. We also do not discuss the defendants' contention that Wangard's fourth cause of action fails on the basis that brokers seeking to recover commissions may not invoke equitable relief. It appears that Wan-gard brought its equity claim as an alternative claim in the event that the circuit court rejected its other claims. Because the listing contract was valid, however, these other claims are still live. Again, the circuit court may address this issue on remand if it so chooses.

¶ 29. In addition to the claim that equitable relief is unavailable to Wangard, Steinhafels raises two further arguments. First, it contends that any judgment in favor of Wangard would contravene Wis. Stat. § 452.133(3), which prohibits the broker from receiving compensation from anyone other than the client, unless all parties consent. Our review of the record reveals that Steinhafels never raised this issue in the circuit court. We deem it waived. See Greene v. Hahn, 2004 WI App 214, ¶ 21, 277 Wis. 2d 473, 689 N.W.2d 657 (issues first raised on appeal are ordinarily waived). Again, the circuit court may pass on this issue on remand.

¶ 30. We will, however, entertain Steinhafels' second contention. We understand Steinhafels to argue that even if disclosures need not ordinarily appear within the four corners of a listing contract, it was important for Wangard's listing contract to contain such disclosures "because that document contained an integration clause that indicated it was 'the complete agreement of the parties.'" Steinhafels cites to Kramer v. Alpine Valley Resort, Inc., 108 Wis. 2d 417, 426, 321 N.W.2d 293 (1982), for the proposition that when parties to a contract intend a writing to be the final expression of their agreement, the terms of the writing cannot be varied by evidence of another written or oral agreement in the absence of fraud.

¶ 31. Kramer does not control here. The statutorily required disclosure form does not contain any terms of agreement. The duties it enumerates arise as a matter of law. The parties to a listing contract do not have the freedom to "accept" or "reject" them as part of their "agreement." Thus, Wangard did not need to include these duties within the four comers of the listing contract.

¶ 32. Next, although the defendants do not develop the issue, they appear to dispute whether Wan-gard provided the statutory disclosures prior to rendering brokerage services. This court will not resolve that factual question. The circuit court, once again, may visit that issue during remand.

¶ 33. Finally, we address whether Wangard met the proper pleading requirements. Wisconsin Stat. § 802.03(2) requires that "[i]n all averments of fraud ... the circumstances constituting fraud... shall be stated with particularity." This statute provides an exception to Wisconsin's general "notice pleading" mies, which merely require that the complaint give "fair notice" of the claim being advanced. Cf. Magnum Radio, Inc. v. Brieske, 217 Wis. 2d 130, 136, 577 N.W.2d 377 (Ct. App. 1998) (stating Wisconsin's liberal "notice pleading" rule).

¶ 34. Steinhafels and the Grafs point us to federal case law interpreting Fed. R. Civ. E 9(b), the federal counterpart to Wis. Stat. § 802.03(2). See Rendler v. Markos, 154 Wis. 2d 420, 428-29, 453 N.W.2d 202 (Ct. App. 1990) (recognizing both provisions are identical and should not be interpreted differently). These precedents apply the heightened pleading requirements in 9(b) not only to fraud claims but also to claims that "sound in fraud." See e.g., Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir. 1985) (particularity required when "fraud lies at the core of the action" (citation omitted)). The defendants maintain that:

The particularity requirements of Rule 9(b) must therefore be met in actions alleging fraud claims titled as such and claims of conspiracy to defraud or conceal. See Robison v. Caster, 356 F.2d 924, 925 (7th Cir. 1966); Segal v. Gordon, 467 F.2d 602, 607 (2d Cir. 1972); Klein v. Council of Chemical Assoc., 587 F. Supp. 213, 227 (E.D. Pa. 1984); Greater Valley Terminal Corp. v. Reitz St. Terminals, 21 F.R.D. 167, 168 n.2 (E.D. Pa. 1957).

According to the defendants, Wangard's complaint, like the complaints in Robison, Segal, and Klein, suggests only a single claim: "conspiracy to defraud."

¶ 35. We do not understand the defendants to argue that all claims for intentional interference with contract or conspiracy to injure plaintiffs via such interference must meet heightened pleading requirements. Rather, they appear to suggest that where, as here, the plaintiff alleges that the defendants engaged in fraudulent behavior, such accusations must be pled with particularity. We are unpersuaded.

¶ 36. We agree with Wangard that these cases are simply not on point. The complaints in those cases alleged only "conspiracy to defraud." Even if a finding of fraud is essential to a cause of action for "conspiracy to defraud," such a finding is not essential to the claims asserted here. The complaint alleges that the listing contract expressly required the Grafs to keep Wangard apprised of any inquiries concerning the property, to cooperate with Wangard during the term of the listing contract, and to pay a brokerage commission. It also alleges that the Grafs did not communicate Steinhafels' continuing interest, cooperate with Wangard to reach a deal, or pay a commission. These allegations alone establish a breach of contract on the Grafs' part.

¶ 37. Moreover, the complaint establishes that Steinhafels encouraged this breach by (1) persuading the Grafs not to pay Wangard its commission (in violation of the duty to pay a commission) and (2) by influencing them to deal with Steinhafels directly instead of through Wangard (in violation of the duties to communicate and cooperate with Wangard). These allegations sufficiently establish first, that Steinhafels knew of the contractual relationship and knowingly interfered with it and second, that Wangard was damaged by not receiving the commission it earned. Whether Steinhafels concealed this misconduct or shamelessly flaunted it is really beside the point. Wangard's inclusion of fraud allegations in its complaint does not nullify the sufficiency of its other allegations in stating a claim for intentional interference. Because Wangard's intentional interference claim can stand on its own with or without the fraud allegations, the conspiracy claim — which is predicated on the intentional interference claim — also must only satisfy general notice pleading rules.

¶ 38. We find support for our holding in Purtell v. Tehan, 29 Wis. 2d 631, 139 N.W.2d 655 (1966). Purtell, in fact, bears some striking similarity to this action. In that case, Purtell was a real estate broker for the Tehans. Id. at 633. Pursuant to the listing contract, the Tehans would have owed Purtell a $15,000 commission upon the sale of the property. See id. at 634. In order to avoid that commission, they reached an agreement with the prospective buyers wherein the latter would insert objectionable terms into their proposals so as to give the Tehans an excuse to reject them. See id. at 634, 638. After the listing contract expired, these bogus terms were deleted, and the parties entered an agreement identical to those originally arranged by Purtell. Id. at 634.

¶ 39. Interestingly, the relevant paragraph of Purtell's complaint read as follows and used the same "conspiracy to defraud" language as the federal cases that the defendants cite:

That the Defendants conspired to defraud the Plaintiffs of their just commission due pursuant to said contracts and other writing and memorandums and oral agreements between the brokers and the parties, on information and belief, said conspiracy and fraud being committed as follows: ... [sets forth allegations of agreeing to insert objectionable terms until the listing contract expired] . . . thereby defrauding and attempting to deprive the Plaintiff brokers of their just commissions.

Id. (emphases added). The court considered whether this paragraph spelled out a cause of action against the defendants. Id. at 635, 637-38. It held, "The alleged facts, if true, clearly establish a cause of action ... for inducing a breach of contract." Id. at 638. Significantly, the court further determined that it was therefore "not necessary to consider whether the allegations of the complaint are also sufficient to allege a conspiracy to defraud." Id. In other words, regardless of whether the complaint inadequately stated a claim for conspiracy to defraud, the allegations therein were sufficient to establish an intentional interference claim.

¶ 40. It is obvious to us that Purtell did not apply heightened pleading requirements to Purtell's complaint. It omitted to do so, even where the complaint clearly alleged conspiracy to defraud. If the court there did not dismiss the complaint based on allegations "sounding in fraud," we certainly do not see why we should do so where the causes of action alleged are merely interference with contract and conspiracy to so interfere.

¶ 41. In sum, Wangard's pleading is not deficient for want of specificity. Even if we ignore the references to fraud or misrepresentation, the complaint states claims for both intentional interference with contract and conspiracy to interfere. Moreover, the listing contract is not void for its omission of statutory disclosures within its four corners. Wisconsin Stat. § 452.135(2) requires only that a broker make these disclosures prior to providing brokerage services to a party to a transaction. We remand to the circuit court with directions to reinstate the complaint. At that time, it may also address any of the defendants' alternative arguments that we have not reached.

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

       This complaint was actually an amended pleading, but for ease of reference we refer to it simply as "the complaint." Initially, the complaint also named The Boerke Company, Inc. as a plaintiff, but Boerke is not a party to this appeal.

       It is true that Wangard submitted certain materials outside of the pleadings in response to the defendants' motions to dismiss, but we do not accept the defendants' conclusion that the motion was thereby converted to a summary judgment motion. Although these materials, namely, an affidavit, revealed that the parties disputed certain issues of fact, nothing in the record indicates that the trial court resolved those issues in any party's favor or that it considered these outside materials. Further, the court never apprised the parties of an intention to treat the motion as one for summary judgment. See CTI of Ne. Wis., LLC v. Herrell, 2003 WI App 19, ¶¶ 6, 8, 259 Wis. 2d 756, 656 N.W.2d 794 (Ct. App. 2002) (court must notify parties of intent to convert motion to dismiss into summary judgment motion; such conversion not necessary where court does not rely upon outside materials).

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Both authors played a role in passing the current version of Wis. Stat. § 452.135. See Wrede H. Smith Jr. & Richard J. Staff, The New Real Estate Agency Law: Redefining the Role of Real Estate Brokers, Wisconsin Lawyeü, Oct. 1994, at 9, 59.

         Robison v. Caster, 356 F.2d 924, 925 (7th Cir. 1966), did involve a claim for breach of fiduciary duty, but the plaintiff admitted that this breach was predicated on a "scheme to defraud."

       These allegations establish a cause of action for intentional interference with contract. The elements of that tort, set forth in Finch v. Southside Lincoln-Mercury, Inc., 2004 WI App 110, ¶ 18 n.8, 274 Wis. 2d 719, 685 N.W.2d 154, are as follows: "(1) the plaintiff must have had a contract or prospective contractual relationship with a third party; (2) the defendant must have interfered with that relationship; (3) the interference by the defendant must have been intentional; (4) there must he a causal connection between the interference and damages; and (5) the defendant must not have been justified or privileged to interfere." (Citation omitted.)

       The defendants do not dispute Wangard's assertion that a civil conspiracy claim involves only two elements, namely, (1) an agreement between the alleged conspirator and the alleged wrongdoer and (2) a wrongful act committed in furtherance of the conspiracy. The "wrongful act" here would be intentional interference with contract (with respect to Steinhafels) or breach of contract (with respect to the Grafs). Our discussion above explains how Wangard has sufficiently alleged that second element even without the fraud accusations. As to the first element, agreement among the defendants, Wangard is not a relevant party, so fraud is not an issue.

       Although stated differently from the formulation set forth in Finch, the elements of "inducing a breach of contract" appear to be substantively the same as those for "intentional interference with contract." Compare Finch, 274 Wis. 2d 719, ¶ 18 n.8, with Purtell v. Tehan, 29 Wis. 2d 631, 638, 139 N.W.2d 655 (1966).


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    In re the Paternity of C.A.V.M.: Shannon E. T., Petitioner-Appellant, Bye, Goff & Rohde, Ltd., Appellants, v. Alicia M. V.M. an individual, by her guardians, Patricia N. and Brian V.M., Respondents-Respondents.
    Court of Appeals

      No. 2005AP77.

      Submitted on briefs June 14, 2005.

      —Decided May 25, 2006.

    2006 WI App 104
    (Also reported in 718 N.W.2d 729.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Ardell W. Skow, Doar, Drill & Skow S.C., Baldwin.
    On behalf of the appellant, the cause was submitted on the brief of CM. Bye, Bye, Goff & Rohde, Ltd., River Falls.
    On behalf of the respondents-respondents, the cause was submitted on the briefs of Richard W. Zalewski and Michael J. Roman, Zalewski, Klinner & Kramer, LLP, Wausau.
    Before Lundsten, RJ., Dykman and Vergeront, JJ.

       Petition to review granted 8-30-06.

   VERGERONT, J.

¶ 1. Shannon E.T. appeals from an order dismissing an action under Wis. Stat. § 767.45 to establish his paternity of C.A.VM., stillborn as the result of a motor vehicle accident. Shannon brought this action to establish his paternity for the purpose of the wrongful death action that he had already initiated. We conclude that § 767.45(1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action based on the stillbirth. Accordingly, although our rationale differs from that of the circuit court, we affirm the dismissal of this action.

BACKGROUND

¶ 2. The paternity petition alleged as follows. Alicia M. VM. was involved in a car accident when she was twenty-seven weeks pregnant with C.A.VM and C.A.VM. was viable. As a result of the accident, C.A.VM. was stillborn and Alicia was incapacitated. Shannon is the father of C.A.VM., and during periods of the pregnancy he resided with Alicia and assisted with CAVM.'s prenatal care. Shannon seeks a paternity determination in connection with a wrongful death action based on CAVM.'s stillbirth that he has filed in another county; that action has been continued pending the determination in this paternity action.

¶ 3. Alicia, through her guardians, filed a motion to dismiss this action, arguing that Wis. Stat. § 767.45 does not provide a basis for determining the paternity of a stillborn and, therefore, Shannon's petition failed to state a claim upon which relief could be granted and the court lacked competency over the matter. Shannon disputed this construction of § 767.45, arguing that the statute does not define "child," and does not require a live birth in order for a court to adjudicate paternity.

¶ 4. In a written decision, the circuit court granted the motion to dismiss. The court concluded that a paternity action under Wis. Stat. § 767.45 required the "birth" of a child and concluded that a stillbirth did not qualify as the "birth" of a child. In reaching this conclusion, the court employed an analysis similar to that which the supreme court used in State ex rel. Angela M. W. v. Kruzicki, 209 Wis. 2d 112, 561 N.W.2d 729 (1997). In that case, the supreme court concluded that "child" in Wis. Stat. § 48.02(2) (1993-94) meant a human being born alive and did not include a viable fetus; the court reached that conclusion by considering the word in its statutory context. Angela M.W., 209 Wis. 2d at 137. In this case, the circuit court considered the requirements in Wis. Stat. § 767.51(3)(b)-(d) that a paternity judgment "shall" contain orders for the legal custody, physical placement, and support of a child, as well as a determination as to which parent, if eligible, has the right to claim the child as an exemption for federal tax purposes. The court found that none of these provisions would apply if there were a stillbirth, and therefore allowing the paternity adjudication of a stillborn would render these statutory requirements absurd. The court also noted that § 767.45(3) requires that the "birth" of the child occur before a paternity adjudication is completed, and, in light of the requirements for the judgment in § 767.51(3)(b)-(d), the legislature meant a live birth.

DISCUSSION

¶ 5. On a motion to dismiss for failure to state a claim, we take as true the allegations in the complaint and all reasonable inferences therefrom. Scott v. Savers Property & Cas. Ins. Co., 2003 WI 60, ¶ 5, 262 Wis. 2d 127, 663 N.W.2d 715. Whether a complaint states a claim for relief presents a question of law, which we review de novo. Id., ¶ 6.

¶ 6. The resolution of the motion to dismiss here requires a construction of various statutory provisions, which is also a question of law. Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis. 2d 252, 706 N.W.2d 110. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Cir. Ct. for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If we conclude that the application of these principles results in statutory language that is ambiguous — that is, capable of being understood by reasonably well-informed persons in two or more senses — then we may employ sources extrinsic to the statutory text. Id., ¶¶ 47, 50. These extrinsic sources are typically items of legislative history. Id., ¶ 50.

¶ 7. In the circuit court and in their initial briefs the parties focused on the meaning of the word "child" in Wis. Stat. § 767.45(1), which provides in relevant part:

(1) The following persons may bring an action or motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child or for the purpose of rebutting the presumption of paternity under s. 891.405 or 891.41 (1):
(a) The child.
(b) The child's natural mother.
(c) Unless s. 767.62 (1) applies, a man presumed to be the child's father under s. 891.405 or 891.41 (1).
(d) A man alleged or alleging himself to be the father of the child.

¶ 8. The parties agree that the word "child" is ambiguous in this statute. Shannon argues that the more reasonable construction is that "child" includes a fetus that is stillborn, while Alicia argues that it is more reasonable to construe "child" to require a live birth. Shannon argues, in addition, that if we construe "child" to exclude a fetus that is stillborn, then he is deprived of the opportunity to bring a wrongful death action, which, he asserts, he has the right to bring under Kwaterski v. State Farm Mutual Automobile Ins. Co., 34 Wis. 2d 14, 15, 22, 148 N.W.2d 107 (1967). In Kwaterski, the court construed the term "person" in the wrongful death statute, Wis. Stat. § 895.03 (1965), to include a viable fetus; the court concluded that the parents had a cause of action against the driver of the other vehicle for wrongful death, based on the allegations that the other driver's negligence caused injuries to the fetus that resulted in a stillbirth. Kwaterski, 34 Wis. 2d at 15, 22.

¶ 9. We asked for supplemental briefing on the question of how, if at all, Wis. Stat. § 885.23 relates to the issue whether Shannon may bring a paternity action under Wis. Stat. § 767.45(1) for purposes of determining his paternity so that he may pursue a wrongful death claim. Section 885.23 provides:

Genetic tests in civil actions. Whenever it is relevant in a civil action to determine the parentage or identity of any child, person or corpse, the court, by order, shall direct any party to the action and any person involved in the controversy to submit to one or more genetic tests as provided in s. 767.48. The results of the tests shall be receivable as evidence in any case where exclusion from parentage is established or where a probability of parentage is shown to exist. Whenever the court orders the genetic tests and one of the parties refuses to submit to the tests that fact shall be disclosed upon trial.

Shannon's position is that, although he might have the right to bring a motion under § 885.23 to determine his paternity in the wrongful death action, he also has a right to bring this paternity action for that purpose because the circuit court "has not permitted a paternity determination in that action." Alicia's position is that § 885.23 is irrelevant to whether Shannon may bring a paternity action to determine his paternity of a stillborn.

¶ 10. We view the dispositive issue to be whether Shannon may bring a paternity action for the sole purpose of determining his paternity so that he may proceed with the wrongful death action involving C.A.YM. We conclude that Wis. Stat. §§ 767.45 — 767.62 (which we will refer to as "the paternity statute") is ambiguous on this point. By consulting the legislative history of the statute and considering Wis. Stat. § 885.23, which we view as a related statute, we conclude the legislature did not intend that a paternity action be initiated by a man alleging he is the father when the sole purpose is to obtain a determination of paternity so that he may proceed with a wrongful death action.

¶ 11. In general, the paternity statute establishes a very detailed procedure for making a determination of paternity and for making decisions and orders regarding the care of the "child" and expenses associated with the "child." Wisconsin Stat. § 767.50(1) provides that the "trial shall be divided into 2 parts. The first part shall deal with the determination of paternity. The 2nd part shall deal with child support, legal custody, periods of physical placement, and related issues." There is no express provision that a paternity action may be brought only if the paternity adjudication is for the purposes of establishing "child support, legal custody, periods of physical placement, and related issues." However, we conclude this is a reasonable construction of the statute in view of § 767.50(1), the provisions regarding the best interests of the child, see, e.g., Wis. Stat. §§ 767.46(2) and 767.463, and the provision on the contents of a judgment or order of paternity, Wis. Stat. § 767.51(3). That section provides:

(3) A judgment or order determining paternity shall contain all of the following provisions:
(a) An adjudication of the paternity of the child.
(b) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.24.
(c) An order requiring either or both of the parents to contribute to the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent, determined in accordance with s. 767.25.
(d) A determination as to which parent, if eligible, shall have the right to claim the child as an exemption for federal tax purposes under 26 USC 151 (c) (1) (B), or as an exemption for state tax purposes under s. 71.07 (8) (b).
(e) An order requiring the father to pay or contribute to the reasonable expenses of the mother's pregnancy and the child's birth, based on the father's ability to pay or contribute to those expenses.
(f) An order requiring either or both parties to pay- or contribute to the costs of the guardian ad litem fees, genetic tests as provided in s. 767.48 (5) and other costs.
(g) An order requiring either party to pay or contribute to the attorney fees of the other party.

¶ 12. We conclude it is reasonable to read Wis. Stat. § 767.51(3) as expressing a legislative intent that any paternity judgment must contain provisions regarding the child's support, care, and custody. However, we do not agree with Alicia that § 767.51(3) plainly means that every paternity judgment or order must contain all the items in that section, thus showing that the legislature intended that "child" requires a live birth. First, when a baby is born alive but then dies, there is no need for orders regarding custody, placement, and current and future child support. In other words, the provisions that contemplate making decisions about a live child are inapplicable both where there is a stillbirth and where there is a live birth but the child dies thereafter. Second, even if the child is alive at the time of the proceeding, there may be no need for some of the orders. For example, a paternity action may be brought within nineteen years of a child's birth, see Wis. Stat. §§ 767.475(5) and 893.88, but if the child is over eighteen, there would be no orders on legal custody or physical placement under para, (b) in § 767.51(3). Other examples are: there may be no guardian ad litem fees or genetic tests and so no reason for an order under para, (f), and there may be no attorneys and so no reason for an order under para. (g).

¶ 13. Third, we observe that, while orders regarding the custody and placement of the child and support of the child (to the extent it is current and future support) under Wis. Stat. § 767.51(3)(b)-(d) obviously do not apply if there is a stillbirth, that is not true of contribution "to the reasonable expenses of the mother's pregnancy," and it may not be true of the expenses of "the child's birth." Section 767.51(3)(e). Plainly there are "expenses of the mother's pregnancy" such as doctor visits, even if there is a stillbirth rather than a live birth. Whether "expenses of... the child's birth" includes the hospital expenses from a stillbirth requires a construction of "birth" and "child." In short, we view § 7,67.51(3) as illustrating the ambiguity of thé meaning of "child" and "birth" rather than resolving it.

¶ 14. Because we conclude the statute is ambiguous, we consider the legislative history to determine whether the legislature intended that a paternity action be initiated in a situation such as this — when there was a stillbirth and no order is sought other than a paternity adjudication for the purpose of pursuing a wrongful death action concerning the stillbirth.

¶ 15. The paternity statute has its origins in a statute almost as old as Wisconsin's statehood. Wis. Stat. ch. 31 (1849). The original statute was concerned with the ability of the town in which a child was born to an unmarried mother to obtain money from the father for the child's support and for the expenses of "the lying in and the support and attendance upon the mother of such child during her sickness." See Wis. Stat. ch. 31, §§ 3, 7, 13 (1849).

¶ 16. Subsequent changes provided that paternity actions (then called illegitimacy actions) were to be brought only by the district attorney. See Wis. Stat. ch. 166 (1929). It was not until 1963 that the legislature authorized the court to make other than financial provisions for the child: Wis. Stat. § 52.21(2), created by 1963 Wis. Laws, ch. 426, § 2, authorized the court in a paternity action to make orders for "the suitable care, custody, support, and maintenance of the child," in addition to the financial orders that had long been required. However, the requirement that the action must be initiated with a complaint by the district attorney remained until 1981. See 1979 Wis. Laws, ch. 352, repealing §§ 52.22-52.25, effective July 1, 1981.

¶ 17. The significant changes that authorized a man alleging he is the father to bring a paternity action were enacted by 1979 Wis. Laws, ch. 352, § 25, which also added the child, the mother, a man presumed or alleged to be the father, and specified others as persons authorized to bring the action. See Wis. Stat. § 767.45(1) (1981-82). This amendment occurred following changes that had been made to other statutes to provide a procedure for an unmarried father to declare his paternity, which, legislative notes show, were prompted by United States Supreme Court decisions relating to the rights of unmarried fathers.

¶ 18. Another area of significant changes in 1979 Wis. Laws, ch. 352 brought paternity actions more in line with orders in divorce actions concerning the care, custody, and support of children; indeed, the statute at that time was renumbered and placed in Wis. Stat. ch. 767, "Actions Affecting the Family." See 1979 Wis. Laws, ch. 352, §§ 19, 25. Material in the legislative record shows that these changes were intended to ensure that children of unmarried parents were treated in the same way as children of married parents who were no longer living together or were divorced. See Division of Economic Assistance Memorandum of September 6, 1978, regarding the Paternity Committee Report, from Sherwood K. Zink, Legal Counsel of the Bureau of Child Support, located in the drafting records to 1979 Wis. Laws, ch. 352, SB 249.

¶ 19. The amendment to Wis. Stat. § 767.45(1) authorizing the listed persons to bring a "motion" as well as an "action" was enacted by 1987 Wis. Act 413, § 68. The introductory note to that act stated: it is "in the interest of each child to identify the child's father for reasons including medical information and financial support... it is the policy of this state to promote the interest of children in knowing the identity of both parents." 1987 Wis. Act 413, § 1.

¶ 20. The language in Wis. Stat. § 767.45(1), "including an action or motion for declaratory judgment," was added by 1993 Wis. Act 481, § 127. That same act made changes in a number of other statutes that were described in fiscal estimates as improving child support collection by "streamlining procedures and providing additional tools to establish paternities and establish and collect child support." See Fiscal Estimate of May 11, 1994, on Child Support Enforcement, prepared by DHSS, 1994 Spec. Sess. SB 2, located in the drafting records for 1993 Wis. Act 481, part 1, LRB-6036.

¶ 21. This legislative history shows that the current paternity statute reflects a number of important legislative policies and purposes: that mothers and other entities who incur expenses related to the mother's pregnancy, the birth of a child and the care of a child have a procedure to determine paternity so that the father contributes to those expenses; that unmarried fathers have a procedure for establishing their paternity so that they can participate in parenting their child; that courts have the same authority to make orders regarding the care of children in their best interests that they have in other actions affecting the family; and that children of unmarried parents have a procedure for establishing who their father is and obtaining any benefits that flow from that. None of these policies and purposes appear to encompass bringing a paternity action to determine paternity for the sole purpose of bringing another action. Thus, while legislative history does not conclusively demonstrate that the legislature did not intend this, we view the legislative history as an indication that the legislature did not.

¶ 22. We now turn to an examination of Wis. Stat. § 885.23. The language of the statute plainly provides for a determination of paternity if it is relevant in a civil action. Thus, it is plain that a paternity action is not the only action in which a determination of paternity may be made. We do not agree with Alicia that § 885.23 is irrelevant to our construction of Wis. Stat. § 767.45. Because § 885.23 provides a procedure for a determination of paternity in a civil action other than a paternity action, when paternity is relevant in that other action, the question arises whether the legislature intended that a paternity action be initiated for that purpose, even though no other order regarding the care of the child or expenses associated with the pregnancy or the child's birth is sought. One might reasonably argue that these are simply two vehicles available to a person in Shannon’s situation. Alternatively, one might also reasonably argue that the legislature did not intend that a paternity action be initiated solely for the purpose of determining paternity when it is a relevant issue in another action.

¶ 23. We conclude the latter construction is more reasonable. First, the predecessor to Wis. Stat. § 885.23 was originally enacted in 1935. See 1935 Wis. Laws, ch. 351, § 1. Because there already existed a procedure for determining paternity in a civil action within that action, when paternity was relevant, there is no reason to think the legislature intended to create an entirely separate action for that purpose when, in 1979 Wis. Laws, ch. 352, § 25, it expanded the list of persons permitted to bring a paternity action. Second, as we have discussed above, the legislative history of the paternity statute indicates that the changes in the statute over the years were driven by policies and purposes that do not include creating a separate action to determine paternity for the purpose of bringing another action.

¶ 24. We conclude that Wis. Stat. § 767.45(1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. Accordingly, although our rationale differs from that of the circuit court, we affirm the dismissal of this action.

¶ 25. We emphasize that our conclusion on the proper construction of Wis. Stat. § 767.45(1), and our discussion of Wis. Stat. § 885.23 in arriving at that conclusion is not, as Alicia contends, an advisory opinion. We are not ruling on the correctness of the circuit court's decision in the wrongful death action. That decision is not before us. We do not know precisely what that decision was, what the grounds for it were, and what arguments were made to that court. Nothing in this opinion requires that the circuit court in the wrongful death action grant a motion by Shannon in that action to allow him to establish his paternity. Whether such a motion, if brought, should be granted depends on the resolution of issues we do not address in this case, including whether Shannon's paternity is relevant in that action, which, in turn, depends on whether, if he is the father of C.A.YM., he has a cause of action for wrongful death. These issues are not before us and we do not address them.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Alicia also filed a motion, through her guardians, seeking to disqualify the firm representing Shannon in this action on the ground that it was the same firm the guardians had retained to represent Alicia in connection with the accident. The submissions showed that, after investigating the accident, the firm informed Alicia's guardians that it would not pursue any action on her behalf. Less than a month later, the same firm filed the wrongful death action on behalf of Shannon against American Family Mutual Ins. Co., Alicia's insurer, and the driver of the other car, alleging that he was the father of C.A.VM. and the negligence of Alicia and of the other driver caused the accident, which resulted in the stillbirth of C.A.VM. Alicia's motion to disqualify asserted that this paternity action is contrary to her interests and, in the prior representation of her, the firm had obtained confidential information that could be used against her in this action. The circuit court granted this motion. The law firm appeals that order, with other counsel representing Shannon in appealing the order dismissing this action. Because of our disposition of the dismissal order, it is not necessary to consider the disqualification order.

       Both of the parties appear to agree that a motion to dismiss for failure to state a claim is the proper formulation of a motion asserting that Shannon may not obtain a paternity declaration under Wis. Stat. §§ 767.45-767.62 because C.A.WVL was stillborn. We accept this formulation for purposes of our analysis. The significant point for our standard of review is that we are construing §§ 767.45-767.62 based on the facts alleged in the petition, and thus a question of law is presented, which we review de novo.

       The rest of Wis. Stat. § 767.45(1) provides:
      (e) The personal representative of a person specified under pars, (a) to (d) if that person has died.
      (f) The legal or physical custodian of the child.
      (g) This state whenever the circumstances specified in s. 767.075 (1) apply, including the delegates of the state as specified in sub. (6).

        (h) This state as provided under sub. (6m).
      (i) A guardian ad litem appointed for the child under s. 48.235, 767.045 (1) (c) or 938.235.
      (j) A parent of a person listed under par. (b), (c) or (d), if the parent is liable or is potentially liable for maintenance of a child of a dependent person under s. 49.90 (1) (a) 2.
      (k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.245 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3. with respect to the child.

       We asked for supplemental briefing after our certification to the supreme court was denied. See Shannon E.T. v. Alicia M. V.M., No. 05-77, unpublished certification (WI App July 14, 2005), denied (WI Sept. 8, 2005). The issue we certified was whether "birth of a child" in Wis. Stat. § 767.45 requires a live birth.
      In our order on supplemental briefing, in addition to asking the parties to address Wis. Stat. § 885.23, we asked them to brief whether the case DiBenedetto v. Jaskolski, 2003 WI App 70, ¶¶ 22-32, 261 Wis. 2d 723, 661 N.W.2d 869, has any bearing on the issue whether Shannon may bring an action under Wis. Stat. § 767.45(1) to determine his paternity of C.A.VM. for the purpose of bringing a wrongful death action. In the referenced DiBenedetto paragraphs, we held that the personal representative had the authority in that probate proceeding to bring a motion under §§ 767.45(l)(e) and 885.23 to determine the paternity of the decedent, which was necessary in order to determine his lawful heirs; and, we concluded the personal representative had acted unreasonably in not doing so. We do not discuss DiBenedetto in this opinion because we conclude it does not assist in resolving the issue on this appeal.

       Effective April 20, 2006, 2005 Wis. Act 304, §§ Is, 2 amended and renumbered Wis. Stat. § 767.51(3)(e) to § 767.51(3)(e)l. and 2.; however, the amendment and renumbering does not affect our analysis.

       For essentially the same reason, we do not agree with Alicia that Wis. Stat. § 767.45(3) shows the legislature's intent that there be a live birth rather than a stillbirth. That section provides:
      (3) If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.
      This section plainly permits a paternity action to be brought while the woman is still pregnant, at which time no one knows if there will be a live birth. This section does not state that the action must be dismissed if there is a not a live birth. Thus, for example, if the woman or district attorney brought a paternity action during the pregnancy, the action was stayed, and there was a stillbirth, it may be that the woman or district attorney would wish to continue the action to obtain a determination of paternity and payment of or contribution for the expenses of pregnancy and the medical expenses associated with the stillbirth under Wis. Stat. § 767.51(3)(e). Whether a proper construction of the statute would allow this is an issue we need not resolve in this case. However, we do not agree that § 767.45(3) plainly would not allow this.

       1907 Wis. Laws, ch. 648 enacted Wis. Stat. § 1533m, which required the district attorney "to appear and prosecute in all bastardy proceedings." Certain towns still retained the authority to enter into a compromise with the putative father and release him from liability, but that town authority ended in 1929, when the authority to compromise was given only to district attorneys. See 1929 Wis. Laws, ch. 439, § 10, enacting Wis. Stat. § 166.22.

       See 1973 Wis. Laws, ch. 263, § 19, enacting Wis. Stat. § 269.56(3m), which was subsequently renumbered to Wis. Stat. § 806.04(3m), see Judicial Council Committee's note, 1977, Wis. Stat. § 806.04, and was repealed by 1979 Wis. Laws, ch. 352, § 26; and see 1973 Wis. Laws, ch. 263, §§ 2, 3, 6 and 7, enacting Wis. Stat. §§ 48.025, 48.195, 48.42(3), and 48.425.

       See the prefatory note prepared by the legislative council, located in the drafting records for 1973 Wis. Laws, ch. 263, in the Legislative Reference Bureau Analysis of 1973 SB 566, LRB-4575/1.

       Wisconsin Stat. § 767.51(3), as originally enacted in 1979 Wis. Laws, ch. 352, § 25, provided:
      The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. The judgment or order may direct the father to pay or contribute to the reasonable expenses of the mother's pregnancy and confinement during pregnancy and may direct either party to pay or contribute to the costs of blood tests, attorney fees and other costs. Contributions to the costs of blood tests shall be paid to the county which paid for the blood tests.
      It was amended to its present form by 1999 Wis. Act 9, § 3065cs.

       There are other policies and pin-poses expressed in the text of the statute itself, which we do not mention because they are not relevant to our analysis. For example, Wis. Stat. § 767.45(l)(c), enacted by 1979 Wis. Laws, ch. 352, § 25, provides that "[a] man presumed to be the child's father" may bring a paternity action to rebut that presumption. This text expresses another purpose of the statute: to provide a procedure which men presumed by statute to be the father can use to establish that they are not the father.

       In the initial round of briefing Shannon argued that, if we do not construe Wis. Stat. § 767.45(1) to permit him to bring this action, there is a violation of his right to a remedy (that is, on his wrongful death claim) under article I, section 9 of the Wisconsin Constitution and his right to equal protection of the law under Fourteenth Amendment of the United States Constitution and article I, section 1 of the Wisconsin Constitution. Both of these arguments were brief and both were based on the premise that there was no procedure for establishing paternity for the purpose of the wrongful death claim except through a paternity action. In his supplemental brief, Shannon takes the position that he may bring a motion under Wis. Stat. § 885.23 in the wrongful death action. We therefore do not address his constitutional arguments. We also do not address the argument in Shannon's initial brief that Wis. Stat. § 895.01(a), which provides that a cause of action to determine paternity survives, requires that he be permitted to bring this action. This argument consists of two sentences and is not adequately developed.