author: HOOVER, P.J.

text:
    Josephine Eckendorf, f/k/a Josephine Bucki, Plaintiff-Respondent, v. Richard Austin and Susan Austin, Defendants-Appellants.
    Court of Appeals

      No. 00-0713-FT.

      Submitted on briefs August 7, 2000.

    Decided September 12, 2000.

    2000 WI App 219
    (Also reported in 619 N.W.2d 129.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Shane W. Falk of Wausau.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí Elizabeth M. Connell and Crooks, Low, Connell & Rottier, S.C., of Wausau.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   HOOVER, P.J.

¶ 1. Richard and Susan Austin appeal a judgment that limits use of their access and utilities easement. Specifically, they challenge the trial court's conclusion that the easement is imprecisely described in the conveyance, that the driveway portion could not exceed twelve feet in width, and that Josephine Eckendorf was entitled to both $500 for a tree that the Austins cut down and costs of this lawsuit. The Austins argue that the written easement document is not ambiguous and that their use is consistent with the original grantor's intent. For the reasons stated below, we reverse the judgment and remand with directions.

BACKGROUND

¶ 2. The Austins own property in Wausau and hold an easement adjacent to their property, on Eck-endorf s property. Rae Best, the Austins' predecessor in interest, granted by deed the thirty-foot-wide easement. The grant specifically describes the area in metes and bounds and adds this explanation:

Said easement granted to Rae E. Best shall be for the purposes of a driveway for ingress and egress to premises owned by grantee and for a[n] easement for laying of water and sewer mains for repair and maintenance of water and sewer mains to premises owned by grantee....

¶ 3. The Austins have used the easement as a driveway since they purchased the property in 1987. They have not used the easement for utilities, and no evidence indicates that water and sewer mains are needed on the easement at this time. A tree impeded travel over a substantial portion of the driveway. In 1988 or 1989, they built a garage but had difficulty transporting building materials via the driveway. In 1994, a moving van had trouble accessing the garage because the maple tree obstructed the driveway. Richard testified that his vehicle hit a bird feeder that hung on a branch over the driveway on more than one occasion. He stated that although he moved the feeder out of the way each time, it was replaced on the tree branches farther out over the easement. A surveyor agreed that the driveway was inadequate for delivering building materials or appliances -with a single axle truck until it was widened in the spring of 1999 to twenty-four feet.

¶4. The Austins have improved the driveway over the years by removing the blacktop, resurfacing part of the area with cement, and adding rotten granite in places. They also removed the maple tree when they widened the driveway.

¶ 5. Once she realized that she owned the property, albeit encumbered by easement rights, Eckendorf used part of the easement area. She raked the lawn and placed lawn furniture on the area not used as ingress or egress. After the Austins widened the driveway and cut down the maple tree, Eckendorf brought this action for a declaration of interests regarding the easement.

¶ 6. After a trial to the court, the court granted judgment in favor of Eckendorf. The trial court relied on Atkinson v. Mentzel, 211 Wis. 2d 628, 643, 566 N.W.2d 158 (Ct. App. 1997), as authority to apportion the uses specified in the grant. Atkinson provides that a court may "fix a reasonably convenient access route" when the easement lacks precision and the parties disagree on its location. See id. at 641-43. The trial court determined that the space must be apportioned for each use and that a thirty-foot-wide driveway was unreasonable. The court ordered that the easement's width be divided according to the uses described in the grant: twelve feet for the driveway and eighteen feet for water and sewer mains. It further ordered the Austins to remove that portion of the driveway that extended beyond twelve feet and to restore grass to the area the court allocated for water and sewer mains. Finally, the court ordered the Austins to pay Eckendorf $500 for the maple tree and to pay her costs.

DISCUSSION

1. Ambiguity in the Grant

¶ 7. "An easement is an interest in land which is in the possession of another." Id. at 637. The deed granting the easement defines the relative rights of the landowners. See Hunter v. McDonald, 78 Wis. 2d 338, 342-43, 254 N.W.2d 282 (1977). If the language within the four comers of the deed is unambiguous, the court need not look further for the parties' intent. See Rikkers v. Ryan, 76 Wis. 2d 185, 188, 251 N.W.2d 25 (1977). Whether the deed's language is ambiguous is a question of law and will be reviewed de novo. See Atkinson, 211 Wis. 2d at 638.

¶ 8. The Austins first argue that the trial court erred when it found that the easement grant was ambiguous and reconfigured the grant. They assert that the grant specifically describes the area covered and the purposes for which it is to be used. The Austins claim that an ambiguity does not exist merely because the easement has two purposes. We agree.

¶ 9. As indicated, the trial court found the easement to be imprecisely described, but only because the grant did not allocate specific space for the allowed uses. Atkinson, however, is inapposite because the easement granted in that case lacked a legal description. See id. at 635, 642. The parties disagreed as to the easement's location. See id. at 632-33. The grant in Atkinson merely promised "access for all uses of said property other than retail sales." Id. at 638. Because it did not describe where the easement was situated, the court fixed a reasonably convenient access route. Although utilities were also at issue in Atkinson, the court did not define the space for each possible use under the grant's broad language. See id. Therefore, Atkinson does not support a conclusion that a dual-purpose easement is imprecise when the grant does not specify the precise location for each use.

¶ 10. There was no dispute concerning the metes and bounds description; the disagreement concerned only apportionment of use. The easement includes a legal description precisely describing its location in degrees and minutes and to the hundredth of a foot. Further, the dual purposes are both designed to benefit the easement holder. If the Austins determine that utilities are needed, they may remove the portions of their driveway that impede that use. The grant is not ambiguous, and the court should have enforced it as written.

2. Intended Use of the Easement

¶ 11. The Austins alternatively argue that the deed unambiguously expresses the grantor's intent and the grantor did not reserve the right to further define the subeasements. Therefore, they assert, the court is without authority to look beyond the deed for an intent to apportion the space for the various uses. We agree.

¶ 12. The meaning of language in a deed is reviewed de novo. See Hunter v. Keys, 229 Wis. 2d 710, 715, 600 N.W.2d 269 (Ct. App. 1999) (citing Atkinson, 211 Wis. 2d at 638). "The use of the easement must be in accordance with and confined to the terms and purposes of the grant." McDonald, 78 Wis. 2d at 343. The easement holder may improve, even fill in wetlands, on a roadway used for ingress and egress so long as the improvements do not unreasonably burden the servi-ent estate. See Keys, 229 Wis. 2d at 717. The purpose stated in the grant defines the easement's reasonable use. Here, the grant provided that the easement was for ingress and egress and for water and sewer installation and repair. The Austins may determine how to use the land rights granted to them. They have the right to put the land to either use, or to both.

¶ 13. This court has previously approved construction of driveways on easements that exceeded the changes the Austins made. For example, Keys concluded that thirty-three feet is not unreasonably wide for a driveway easement. See id. at 715. The Austins have only used twenty-four of their thirty-foot easement for a driveway. Eckendorf has not demonstrated that they have unreasonably burdened her estate and, therefore, the Austins are entitled to improve the driveway as they have.

3. The Tree

¶ 14. "An obstruction or disturbance of an easement is anything which wrongfully interferes with the privilege to which the owner of the easement is entitled by making its use less convenient and beneficial than before." See McDonald, 78 Wis. 2d at 344 (citing 28 C.J.S. Easements § 96). The tree the Austins cut down, for which the court awarded Eckendorf damages, may have obstructed or disturbed the easement. Items that do not physically encroach upon an easement may still interfere with its use. See id. at 344-45. The court did not make findings on the tree's location and relative impediment. We remand this issue to the trial court. If the tree wrongfully blocked the use of the easement, then the Austins were entitled to remove it, and Eck-endorf would not be entitled to damages.

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

       Although Richard Austin does not specify, the other testimony implies that the difficulty was because of a bend in the driveway and a maple tree.


source: Caselaw Access Project

author: WEDEMEYER, P.J.

license: Public Domain

text:
    Friends of Kenwood, Nola Cross, Barbara Dietrich, Eva Donat, Charlotte Howard, Marni Kaiser, Andrew Kane, Carole Kane, Kenneth Klein, Perry Margoles, Michael Mosesson and Steve Tilton, Plaintiffs-Appellants, v. Michael Green and Max Rasansky, Defendants, The Board of Trustees of Congregation Emanu-El B'Ne Jeshurun and Congregation Emanu-El B'Ne Jeshurun, Defendants-Respondents.
    Court of Appeals

      No. 00-0680.

      Submitted on briefs July 6, 2000.

    Decided September 19, 2000.

    2000 WI App 217
    (Also reported in 619 N.W.2d 271.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert E. Sutton, Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Robert H. Friebert, S. Todd Farris and Brian C. Randall of Friebert, Finerty & St. John, S.C., Milwaukee.
    Before Wedemeyer, P.J., Curley and Vergeront, JJ.

       Petition to review denied.

   WEDEMEYER, P.J.

¶ 1. The Friends of Ken-wood, et al., (hereinafter "Kenwood") appeal from a final order dismissing their complaint against The Board of Trustees of Congregation Emanu-El B'Ne Jeshurun and Congregation Emanu-El B'Ne Jeshurun (hereinafter "Congregation"). The complaint alleged that the Board and the Congregation, violated various by-laws, engaged in deceit, misrepresentation, and breached their fiduciary duty to Kenwood, which "create[d] a promissory estoppel which unjustly enriched ... [the] Congregation."

¶2. Kenwood claims that the trial court erred when it granted the motion to dismiss for failure to state a claim against the Congregation and the Board. Kenwood argues that the Congregation and the Board are proper, indispensable parties to this action. Because the complaint fails to state a claim for relief, we affirm.

I. BACKGROUND

¶ 3. The Congregation oversees a Jewish synagogue, which has been located at 2419 East Kenwood Boulevard in the City of Milwaukee since 1927. It is an incorporated religious society existing under the laws of the State of Wisconsin. The Congregation consists of approximately 1,300 member families, and is governed by a twenty-one-person Board of elected volunteer members. Following a study in 1993, the Board concluded that Congregation members had demonstrated a definite trend of establishing residences in the suburbs north of the City of Milwaukee, away from the Kenwood facility. The development of this, trend posed a potential problem for membership participation and, in turn, membership retention.

¶ 4. Addressing this population shift of its Congregation members, the Board decided that a second facility for worship, teaching, and cultural enhancement was needed. In March 1994, they purchased a site in River Hills, the northern most suburb in Milwaukee County. A fundraising drive was commenced. When the drive did not reach its intended goal, a scaled-down version of the originally planned facility, excluding a place of worship, was built on a ten-acre tract. In keeping with this amended purpose, the denominated Family Worship and Learning Center on the Joseph and Vera Zilber Campus was dedicated on October 19, 1997.

¶ 5. In late November 1997, the president of the Board, Michael Green, informally approached the University of Wisconsin-Milwaukee Fine Arts Department and asked if it had any interest in purchasing the Congregation's Kenwood facility. It did and, in September 1998, the Board approved the sale of the Kenwood facility to the University of Wisconsin-Milwaukee Foundation (UWMF). UWMF submitted an offer to purchase the facility for $4.5 million. The Board advised the Congregation of this development.

¶ 6. On October 26,1998, the Board called a special informational meeting of the Congregation to discuss the offer of purchase that had been received. The notice stated:

[Mjembership will be advised as to the content of the offer, the efforts made by the Board ... in looking at alternatives to selling, and the financial implications .of our accepting or not accepting this offer.
After a short presentation, members will have an opportunity to tell the Board . . . their concerns, to ask questions and to discuss .the pros and cons and their impact on our Congregation's future. The task of making such decisions is vested in the Board .. . according to our by-laws.

¶ 7. At the meeting, a number of members objected to the Board's decision to sell the Kenwood facility without allowing the entire membership to vote on the issue. Members were advised that the by-laws permitted the Board to make such a decision. The Board subsequently approved the sale.

¶ 8. The Board later learned, however, that the title insurance company would not ensure clear title if the sale was not approved by the Congregation. As a result, a special meeting of the Congregation was held on February 1, 1999, to vote on the sale. The sale was approved by a two-to-one majority vote with over 600 members voting. Kenwood complains that the vote was unreasonable because members' names appeared on the ballot and members had to travel to the River Hills facility to cast the vote. Kenwood asserts that it was unreasonable to require a vote without assuring anonymity and to require the members to travel all the way to the new facility in order to cast their vote.

¶ 9. Kenwood filed a complaint against the Board, the Congregation, Green and Max Rasansky (a Board member), in an attempt to block the sale. The complaint alleged that the defendants engaged in deceit, misrepresentation, a breach of fiduciary duty, and that the defendants violated the by-laws of the Congregation. Essentially, the complaint contended that Kenwood was deceived into accepting the River Hills construction project because of the assurances given that the original Temple would not be abandoned. The defendants filed a motion to dismiss, alleging that the complaint failed to state a claim for relief. The trial court granted the motion as to the Board and the Congregation on the basis that the allegations lacked particularity as to which Board members and Congregation members made the misrepresentations and to which Kenwood members such misrepresentations were made. Kenwood now appeals.

II. ANALYSIS

¶ 10. This is an appeal from an order dismissing a complaint for failure to state a claim. The plaintiffs in this case are twelve members of the Congregation who are in good standing. They are described as the "Friends of Kenwood." Their amended complaint consists of twenty-seven pages, thirty-five factual averments, fifty-two appended exhibits, and three causes of action. The complaint concludes with a request for: (1) an injunction and declaratory relief voiding the contract of sale of the Kenwood Temple; (2) an order removing the Board of the Congregation; (3) an order granting reimbursement of all contributions and canceling all pledges made for the building of the River Hills facility; and (4) an order for costs, disbursements, and reasonable attorney's fees. In summary, Kenwood seeks declaratory and injunctive relief voiding the sales contract with TJWMF based on violations of the Congregation's by-laws, misrepresentation, and/or breach of fiduciary duty. We conclude that the complaint fails to state a claim for relief under any of these claims.

¶ 11. A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint. See Watts v. Watts, 137 Wis. 2d 506, 512, 405 N.W.2d 303 (1987). Whether the complaint states a claim for relief is a question of law that we review independently. See id. For purposes of review, we accept the facts stated in the complaint, along with all the reasonable inferences that may be drawn from them, as true. See id. Unless it seems certain that no relief could be granted under any set of facts that the plaintiff could prove, dismissal of the complaint is improper. See id. When a document is attached to the complaint and made a part thereof, it must be considered a part of the pleading, and may be resorted to in determining the sufficiency of the pleadings. See Jennaro v. Jennaro, 52 Wis. 2d 405, 411, 190 N.W.2d 164 (1971). When the allegations of a pleading are inconsistent with the terms of a document attached as an exhibit, the terms of the document fairly construed, prevail over averments differing in the complaint. See Graue Mill Dev. Corp. v. Colonial Bank and Trust Co. of Chicago, 927 F.2d 988, 991 (7th Cir. 1991).

A. Misrepresentation Claim.

¶ 12. Kenwood claims that the complaint states a misrepresentation claim against the Board and the Congregation based on the fact that "temple officials, acting in concert, induced the membership of the Congregation" to approve and fund the River Hills facility, "by repeatedly promising that the Congregation would maintain" the Kenwood Temple. Kenwood asserts that Green and Rasansky secretly solicited the sale of the Kenwood Temple, advised the Board what they were doing, and convinced the Board to keep these actions secret. Kenwood also claims that Green and Rasansky "together with the Board" secretly negotiated the sale of the Kenwood Temple, withheld material financial information from the membership, and only held the Congregational vote because the title insurance company required it. Kenwood then asserts that the Congregation was unjustly enriched as a result of these actions.

¶ 13. To succeed in a fraudulent misrepresentation claim, the representation must be of fact and made by the defendant, the representation must be false, and the claimant must have believed the representation was true and relied on it to his or her damage. See Foss v. Madison Twentieth Century Theaters, Inc., 203 Wis. 2d 210, 218, 551 N.W.2d 862 (Ct. App. 1996). A complaint pleading negligent or intentional misrepresentation must allege that the defendant misrepresented a fact to the plaintiff or to a third person with the intent that it would be communicated to or influence the plaintiff. See Rendler v. Markos, 154 Wis. 2d 420, 429, 453 N.W.2d 202 (Ct. App. 1990). While it is true that statements of opinion may result in a misrepresentation cause of action if the speaker knows of facts incompatible with his or her opinion, ordinarily a prediction as to events to occur in the future is to be regarded as a statement of opinion only, on which the adverse party has no right to rely. See Wausau Med. Ctr. v. Asplund, 182 Wis. 2d 274, 291, 514 N.W.2d 34 (Ct. App. 1994).

¶ 14. Moreover, when pleading a cause of action for fraudulent conduct, special rules apply. Wisconsin Stat. § 802.03(2) (1997-98), provides: "Fraud, mistake AND CONDITION OF mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Section 802.03(2) is identical to Fed. R. Civ. P. 9(b). The federal rule requires specification of the time, place and content of an alleged false representation. Particularity means the "who, what, when, where and how." DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). In Rendler, we acknowledged this similarity, see id. at 428, and accepted the interpretation that the rule "requires specification of the time, place, and content of an alleged false misrepresentation," New England Data Services, Inc. v. Becher, 829 F.2d 286, 288 (1st Cir. 1987), because the particularity requirement affords notice to a defendant for the purposes of a response. As additional rationale, we agree that our statute is "designed to protect defendants whose reputation could be harmed by lightly made charges of wrongdoing involving moral turpitude, to minimize 'strike suits,' and to discourage the filing of suits in the hope of turning up relevant information during discovery." McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228 n.2 (1st Cir. 1980).

¶ 15. The essence of Kenwood's claim for misrepresentation is contained in paragraphs 10,11 and 12 of its complaint wherein it alleges that between 1993 and October 19,1997, unnamed trustees and officials affiliated with the advancement of the River Hills project, represented to the membership of the Congregation that the opening of the new facility "would not result in the replacement of the Kenwood Temple." Paragraph 10 alleges:

Throughout the five years that the aforesaid congregation trustees and officials were acting in concert regarding their three campaigns on behalf of building the River Hills campus, in a multiplicity of ways they repeatedly represented to the membership at large — including all of the plaintiffs — that the opening of the satellite campus would not result in the replacement of the Kenwood temple. Among the ways through which the congregation trustees and officials communicated these assurances to the congregants were:
A. Letters;
B. Informational mailings ..
C. Telephone calls;
D. Meetings with members individually, in small groups, and at congregational services and meetings; and
E. A massive public relations campaign_

¶ 16. This paragraph, however, fails to satisfy the pleading particularity requirements of WlS. STAT. § 802.03(2). The allegations are too general because they fail to specify the particular individuals who made the representations, and fail to specify the details of where and when the misrepresentations were made, and who the misrepresentations were made to. Subsection D of paragraph 10, for example, does not identify the individual who met with the Board or which members of the Board besides Green and Rasansky attended the meetings. Instead, the subsection generally refers to "individual[s], in small groups ...." This fails to satisfy the requirements of the statute.

¶ 17. In addition, Kenwood concedes in its brief that "congregation officials on several occasions left the door open that the Kenwood temple someday might be sold." (Emphasis added.) There are attachments to the complaint that contradict the statement in paragraph 10 that the River Hills facility would not replace the Kenwood Temple. For example, in a November 30, 1993 document sent to members, then President Doris H. Chortek stated: "There are no plans to leave . . however, in the interest of long term planning, we have made it clear to the River Hills authorities that the needs of our Congregation may demand such a decision at some future date." Although the documents reflect expressions of hope that the Kenwood Temple would remain as a part of the Congregation, no absolute promises were made. To the extent that representations were made regarding hopes for future events, such cannot constitute grounds for a misrepresentation claim. See Wausau Med. Ctr., 182 Wis. 2d at 291.

¶ 18. Paragraph 11 states that "the assurances" took a variety of forms, which are listed. These included several letters to "members" or the "congregation" and multiple newspaper articles discussing the intent to maintain both the Kenwood and the River Hills sites. However, reference to these letters and numerous newspaper articles alone, also fails to satisfy the particularity requirements. Each plaintiff must allege that he or she believed the statement to be true and relied upon it to his or her detriment. See Foss, 203 Wis. 2d at 218. This is especially true in a case involving multiple plaintiffs, multiple defendants and multiple representations. See Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771, 777-78 (7th Cir. 1994) (The complaint must inform each defendant of the nature of his alleged participation in the fraud and specify who was involved in what activity.). With respect to the Board members and the Congregation, the complaint here fails to specify which members (besides Green and Rasansky) were involved in which specific misrepresentations. The complaint lumps all of the Board members and the Congregation together. In addition, as in paragraph 10, paragraph 11 references statements about future intentions. These are not actionable as fraud. See Wausau Med. Ctr., 182 Wis. 2d at 291.

¶ 19. Paragraph 12 of the complaint then concludes that, "[a]cting ... on the promises and representations" of unnamed officials and trustees, the plaintiffs acted to their detriment in voting to authorize construction of the River Hills facility and contributing funds for establishing the facility:

Acting in reliance on the promises and representations of the officials, including the Board of Trustees of the Congregation as set forth herein-above, various of the plaintiffs and other members of the Congregation acted to their detriment as follows: (1) They voted to authorize (or did not vote to oppose) construction and thereafter, (2) contributed monies for the purpose of establishing the satellite campus on Brown Deer Road in River Hills, Wisconsin. (The plaintiff, Kenneth Klein, contributed $10,000.) On October 19, 1997, the campus was opened and dedicated.

¶20. Again, the paragraph fails to satisfy the specificity requirements of the statute. It is insufficient to lump the defendants together as "the officials, including the Board....” Similarly, the paragraph also fails to specifically identify those individuals who acted in reliance on the representations. Instead, the paragraph refers to "various of the plaintiffs and other members of the Congregation . . . ." (Emphasis added.) Other portions of the complaint refer repeatedly to "the trustees" or "other members of the Board" or "officials." These terms similarly fail to satisfy the particularity requirements.

¶ 21. Further, Kenwood concedes that no discussions between the Board and UWMF occurred until November 1997 — after the construction of the River Hills facility was completed. This supports the defendants' representations during the preceding five years that there was no intention to abandon the Kenwood Temple. The hope was to maintain both facilities. Unfortunately, the vision did not become the reality.

¶ 22. In sum, we conclude that because Kenwood failed to plead its misrepresentation claim with particularity, and because the claim is based on statements about future events, the misrepresentation claim lodged against the Board and the Congregation fails to state a claim for relief. The trial court did not err in granting the motion to dismiss.

B. By-laws Violations.

¶ 23. Kenwood also asserts that the Board and the Congregation engaged in activities which violated various by-laws.

¶ 24. The complaint alleges that the Board violated Article V, § 3, Article VII, § H, Article X, § 2 and Article XI, § 2 of the by-laws. We address each in turn. Article V, § 3 provides: "All Jewish members in good standing shall have the right to vote on all matters coming before meetings of the Congregation unless by these By-laws voting privileges have been otherwise modified." However, Article V, § 3 and Article X, § 8 of the by-laws qualify the voting privilege by providing that only members who are present in person at a meeting are allowed to vote. Kenwood's complaint about the vote on the sale is that it did not take place by mail-in ballot. The by-laws, however, do not provide for voting by mail. Rather, the by-laws require in-person voting.

¶ 25. Article VII, § H provides: "The Board of Trustees shall manage the affairs, funds, records and property of the Congregation. It shall act on all matters of policy and perform such other duties as the members of the Congregation in regular or special meetings may prescribe." It is not altogether clear why Kenwood alleges that the Board and the Congregation violated this, by-law. We assume that this article is referenced, however, based on statements made in correspondence sent to members of the Congregation.

¶ 26. In an informational letter to the members of the Congregation dated November 30, 1993, attached as an exhibit to the complaint, then President Chortek included the following statements:

There are no plans to leave [the Kenwood facility]; however, in the interest of long term planning, we have made it clear to the River Hills authorities that the needs of our Congregation may demand such a decision at some future date.
... It will have the capacity to accommodate the activities of the entire Congregation although we expect that day to be far into the future.
... We will monitor these and other assumptions on an ongoing basis.

¶ 27. On January 22, 1996, then President Chortek again communicated with the Congregation's members. Included in her written remarks was the following:

We have been calling it [the River Hills facility] a satellite because the head and heart of our Congregational activities will remain at our irreplaceable facility on Kenwood Boulevard. It will remain so until some future Congregational meeting decides that we no longer need to be here and wisdom dictates that our entire enterprise should be moved to a then expanded building on Brown Deer Road.

¶ 28. From a reading of these exhibits incorporated into the complaint, we conclude that Kenwood is relying on a January 1998 letter, in which President Green assured the membership that no decision or commitment to sell the Kenwood facility would be made without the approval of the Congregation. However, when action was taken, the issue was not submitted to the Congregation for a vote because the power to sell was vested in the Board, based on the aforementioned by-law, Article VII, § H. We accord this argument little weight because the Congregation did, in fact, vote on the sale, and approved it under the terms of the Congregation's by-laws.

¶ 29. The next alleged by-law violation is based on Article X, § 2, which provides: "[sjpecial meetings of the Congregation may be called by the President or pursuant to resolution of the Board of Trustees o[r] upon written request signed by at least twenty (20) members, and the Secretary shall give notice accordingly." Kenwood asserts that they requested a special meeting under this article on November 12, 1998, and it was improperly denied. The request was denied because the intended purpose of the meeting was to allow the membership to vote on whether or not to approve the sale of the Kenwood facility. The by-laws did not require that such a vote take place. Regardless, a membership vote did eventually occur and, therefore, this alleged violation was rendered moot.

¶ 30. The next alleged by-law violation references Article XI, § 2, which provides that, "Robert's Rules of Order shall govern the transaction of business at meetings of the Congregation and of the Board of Trustees, except as otherwise herein provided." The complaint alleges that Robert's Rules were violated at the October 26,1998 informational meeting, regarding the announcement that UWMF had submitted an offer to purchase the Kenwood Temple. Kenwood asserts that the Board restricted members in attendance to a maximum of two minutes to respond to the Board's hour-long presentation advising why the Kenwood site must be sold. The complaint, however, fails to state which Robert's Rule was violated by this restriction or what relief Kenwood is entitled to as a result of this restriction.

¶ 31. Finally, Kenwood complains that the February 1, 1999 special meeting, wherein the vote by membership occurred, was conducted under "unreasonable circumstances." Specifically, Kenwood objects to the timing of the notice of the meeting, its location at the River Hills facility and the fact that it took place at night, the requirement that members had to attend the meeting to vote, the fact that the voting was not anonymous, and the failure to announce that transportation would be provided for members needing assistance. These objections, however, are unfounded as none of the complaints constitute a violation of the by-laws.

C. Breach of Fiduciary Duty.

¶ 32. Kenwood also asserted a cause of action based on an alleged breach of fiduciary duty. This claim, however, was dependent upon the allegations in the misrepresentation claim, which we have already rejected. Thus, we need not address this claim.

By the Court. — Order affirmed.

       The trial court refused to recognize the "Friends of Ken-wood" as a proper party to this action because it was not particularly identified. For ease of reference, however, we refer to the plaintiffs remaining in the action — Nola Cross, Barbara Dietrich, Eva Donat, Jill Heavenrich, Charlotte Howard, Marni Kaiser, Andrew Kane, Carole Kane, Kenneth Klein, Perry Mar-góles, Michael Mosesson, and Steve Tilton — collectively as Kenwood.

       Board President Michael Green, and Board Trustee Max Rasansky, were also sued individually. The trial court did not dismiss the complaint against Green or Rasansky. Therefore, this opinion addresses only the trial court's dismissal relative to the Congregation and the Board.

       The Board and the Congregation responded to Kenwood's argument by stating that Kenwood is asserting derivative claims under Wis. Stat. ch. 181 without having complied with the requirements under the derivative action law. We need not reach this issue, however, because we have disposed of the case on other grounds.


author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Brian C. Wegner, Defendant-Appellant,

    Court of Appeals

      No. 99-3079-CR.

      Submitted on briefs August 15, 2000.

    Decided September 20, 2000.

    2000 WI App 231
    (Also reported in 619 N.W.2d 289.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott A. Szabrowicz, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kristine E. Anderson, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. Brian C. Wegner argues that the trial court erroneously exercised its discretion when it sentenced him after probation revocation. We disagree. The trial court exercised proper discretion in its sentence and in its refusal to modify that sentence. Therefore, we affirm.

¶ 2. The facts underlying Wegner's conviction are not in dispute. On March 26, 1996, Wegner violently assaulted another man. Wegner and a friend flashed their car lights at another driver; this prompted the driver to pull over. Wegner and his friend pulled up behind the other car. Wegner exited his car and approached the other car. Wegner punched the driver in the side of the face, then dragged him out of his car and continued assaulting him. Wegner's friend joined in; they both punched and kicked the victim who was on his hands and knees "doing nothing" for most of the attack. During the assault, one of the attackers said the victim "narc'd" on somebody. As a result of this attack, the victim required stitches to his nose. In addition, the victim suffered cuts, bleeding, abrasions, swelling and bruising.

¶ 3. Subsequently, on June 28, 1996, Wegner pled guilty to charges of felony battery, disorderly conduct, obstructing an officer (all as party to a crime), and possession of drug paraphernalia. A charge of felony intimidation of a witness was dismissed and read in for sentencing purposes.

¶ 4. The trial court at the original sentencing examined these facts. On August 1, 1996, the trial court sentenced Wegner to nine months in jail on the obstructing charge, ninety days consecutive jail on the disorderly conduct charge and thirty days concurrent jail on the charge of possession of drug paraphernalia. The court withheld sentence on the felony battery charge and imposed five years' probation conditioned on Wegner serving an additional three months of consecutive jail time. Among other conditions of his probation, Wegner was ordered to abstain from alcohol and drugs.

¶ 5. Wegner did not abstain. Instead, he continued to use drugs and alcohol and continued to violate his probation in numerous other ways. On October 31, 1998, Wegner drove while under the influence of alcohol and THC. He crashed his vehicle, causing the death of one of his passengers. In the months that followed, Wegner continued to violate his probation. In addition to other violations, he shoplifted, used drugs and skipped court-ordered counseling sessions. Wegner's probation was revoked on January 14, 1999. The trial court again examined the underlying facts of Wegner's conviction at the sentencing after revocation. On March 11, 1999, Wegner was sentenced after revocation to five years in prison.

¶ 6. Wegner argues that the trial court erroneously exercised its sentencing discretion when it sentenced him after probation revocation. Wegner claims that the trial court: (1) failed to consider the three primary sentencing factors; (2) failed to connect the sentence to the underlying conviction (i.e., "articulate" its reasoning); and (3) failed to demonstrate on the record that it considered Wegner's positive adjustments while on probation.

¶ 7. The record does not support Wegner's claims. We will address each in order. First, the trial court did consider the three primary sentencing factors. At sentencing, a trial court is required to consider (1) the gravity of the offense, (2) the character of the offender, and (3) the need to protect the public. See McCleary v. State, 49 Wis. 2d 263, 275, 182 N.W.2d 512 (1971). Proper sentencing discretion can exist without a delineation of sentencing factors; what is required is a consideration of the sentencing factors. Cf. id. If a trial judge does not delineate the sentencing factors, we are obliged to search the record to determine whether the sentence imposed is sustainable as a proper discretionary act. See id. at 282. We will review the two sentencing proceedings on a global basis, treating the latter sentencing as a continuum of the first.

¶ 8. In Wegner's case, the same judge presided over both the original sentencing and the sentencing after revocation. At the original sentencing, the trial judge heard a detailed description of Wegner's assault. The trial judge considered all of the sentencing factors: "I am instructed by the Supreme Court to impose the least amount of incarceration consistent with three primary factors; the gravity of the offense, the character of the offender, and the need to protect the public." The trial judge then proceeded to thoroughly address each sentencing factor.

¶ 9. We conclude that when the same judge presides at the sentencing after revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing; we will consider the original sentencing reasons to be implicitly adopted. Like the appellate court, the trial court should be able to rely upon the entire record, including the previous comments at the first sentencing. Cf. id. This is especially true where it is the same judge. Further, it would be a mismanagement of judicial resources to require a court to go back to square one when sentencing after revocation. Accordingly, we find the proper exercise of discretion.

¶ 10. Second, the trial court appropriately connected its sentence with the underlying conviction. "If the facts [on which the trial judge predicates his or her judgment] are fairly inferable from the record, and the reasons [for his or her conclusion] indicate the consideration of legally relevant factors, the sentence should ordinarily be affirmed." Id. at 281. At the sentencing after revocation, the State emphasized that "the offense that the Defendant is being sentenced on ... is a very serious charge. It's a felony battery, substantial battery, party to the crime . .. ." The State then reiterated in detail the facts underlying Wegner's felony battery conviction. Finally, immediately before imposing sentence, the trial judge directly referenced the battery: "[People] have the right [to] ... be free from your interfering with their... body. You've endangered people physically. You do what you want to do. You do what Brian Wegner wants to do at that given time." We find this reasoning to be based on Wegner's underlying conviction. Moreover, Wegner has not shown an unreasonable or unjustifiable basis in the record for the court's exercise of discretion and therefore cannot prevail. See State v. Macemon, 113 Wis. 2d 662, 670, 335 N.W.2d 402 (1983). Thus, it was well within the trial court's discretion to sentence Wegner to the maximum allowable sentence of five years in prison.

¶ 11. Third, Wegner complains that the court improperly relied upon an inaccurate revocation summary, and in doing so, it failed to properly account for his positive adjustments on probation. Wegner is misguided. A revocation summary is not "inaccurate" because it does not list all of a defendant's positive adjustments. A revocation summary is not the equivalent of a presentence investigation report (which details both positives and negatives). Rather, it is the equivalent of a "pleading"; it is used to initiate the revocation process. In addition, when being sentenced after revocation, it is the obligation of the defendant to make the court aware of positive adjustments. Weg-ner has not shown an exclusive reliance by the trial judge on the revocation summary nor has he shown any inaccuracies in the revocation summary. The trial court exercised proper sentencing discretion when it took into account Wegner's revocation summary along with other facts of record.

¶ 12. In conclusion, Wegner seems to have lost sight of the fact that he was sentenced after revocation of probation for a serious offense. As long as the sentencing court considered the proper factors and the sentence was within the statutory limits, the sentence will not be reversed unless it is so excessive as to shock the public conscience. See State v. Owen, 202 Wis. 2d 620, 645, 551 N.W.2d 50 (Ct. App. 1996). All the facts of record sustain Wegner's sentence as a proper discretionary act by the trial judge. Therefore, it is our duty to affirm the sentence on appeal. See McCleary, 49 Wis. 2d at 282. Accordingly, we affirm.

By the Court. — Judgment and order affirmed.

       We find no reason to distinguish between a trial court's duty at a sentencing after revocation and its duty at the original sentencing.

       We note that McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971), goes further in holding that an appellate court should not set aside a sentence because a trial judge has failed to exercise discretion; rather, the appellate court should search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained.

       Although we find this acceptable in this case, we suggest that the better practice would be for the trial judge to reference the prior sentence.

       We caution that our holding should not be over read. The fact remains that the original judgment of conviction, which withheld the imposition of sentence and granted probation, represented a final judgment and was eligible for appellate review. See Wis. Stat. Rule 808.03(1) (1997-98). Thus, if Wegner were complaining about a provision in the original judgment (one that did not bear upon the issues addressed by the court at the sentencing after revocation), we would hold Wegner to waiver because he did not appeal from the original judgment of conviction.

       We note that the "positive adjustments" Wegner highlights are hardly enough to have changed the sentencing decision of the trial judge. In light of Wegner's numerous and egregious probation violations, a positive adjustment such as making some appointments with his probation agent is not a sentence-altering positive adjustment — it is what is expected.


author: VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Bernard G. Fearing, Defendant-Appellant.
    Court of Appeals

      No. 99-2849-CR.

      Submitted on briefs June 23, 2000.

    Decided September 21, 2000.

    2000 WI App 229
    (Also reported in 619 N.W.2d 115.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick J. Stangl of Coaty & Stangl, S.C.

    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.

      Before Dykm.an, P.J., Eich and Vergeront, JJ.
   VERGERONT, J.

¶ 1. Bernard Fearing appeals the judgment of conviction and sentence imposed after he entered a plea of no contest to delivery of tetrahydro-cannabinol, THC, contrary to Wis. Stat. § 961.41(l)(h)l (1997-98), The court withheld sentence and placed Fearing on probation for a period not to exceed thirty months with a number of conditions, one of which was that he serve six months in the county jail with work release privileges but without good time. The court then stayed three months of that six month period of confinement and stated that the three months stayed "[could] be imposed at the discretion of [Fearing's] agent, if he or she deems it appropriate."

¶2. Fearing contends on appeal that the trial court did not have the statutory authority to order the term of jail confinement to be served without good time nor the authority to authorize the probation agent to impose the stayed three-months jail time at his or her discretion. We conclude Fearing was not entitled to good time during the term of jail confinement imposed as a condition of probation, and, therefore, the court did not err in directing that he receive no good time. However, we agree with Fearing that the court does not have the statutory authority to delegate to the probation agent the discretion to impose the three months of jail time that the court stayed. We therefore affirm in part, reverse in part, and remand.

DISCUSSION

Waiver

¶ 3. We address first the State's argument that Fearing was required to bring a motion in the trial court to modify the conditions of probation on the grounds he now asserts on appeal, and that his failure to do so should result in a dismissal. The State contends case law establishes that, in order to obtain review of a sentence as a matter of right, a defendant must first move for modification in the trial court. The State acknowledges that generally probation is not considered a sentence, but rather an alternative to sentencing. See State v. Horn, 226 Wis. 2d 637, 647, 594 N.W.2d 772 (1999). However, the State contends, because both a sentence and probation are possible dispositions imposed by a trial court after a criminal conviction, the same policy applies in both situations: the trial court should have the opportunity to correct errors before the issue is raised on appeal.

¶ 4. The first of the cases the State cites, Sears v. State, 94 Wis. 2d 128, 140, 287 N.W.2d 785 (1980), is based on the court-established rule thát in order to obtain review of a sentence, the defendant must first bring a motion in the trial court absent compelling circumstances. The other cases the State cites are based on Wis. Stat. § 973.19, enacted by S. Ct. Order, 123 Wis. 2d xiv (1986). See State v. Meyer, 150 Wis. 2d 603, 605-09, 442 N.W.2d 483 (Ct. App. 1989); State v. Barksdale, 160 Wis. 2d 284, 291, 466 N.W.2d 198 (Ct. App. 1991), review denied; State v. Norwood, 161 Wis. 2d 676, 680-81, 468 N.W.2d 741 (Ct. App. 1991), review denied; and State v. Chambers, 173 Wis. 2d 237, 261, 496 N.W.2d 191 (Ct. App. 1992). Section § 973.19 provides:

Motion to modify sentence. (l)(a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts -under s. 809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.
(b) A person who has requested transcripts under s. 809.30 (2) may move for modification of a sentence or fine under s. 809.30 (2) (h).
(2) Within 90 days after a motion under sub. (1) (a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.
(3) If an order determining a motion under sub. (1) (a) is not entered timely under sub. (2), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.
(4) An appeal from an order determining a motion under sub. (1) (a) is governed by the procedure for civil appeals.
(5) By filing a motion under sub. (1) (a) the defendant waives his or her right to file an appeal or postconviction motion under s. 809.30 (2).

This statute sets out two alternative means to challenge a sentence, both requiring that a motion first be brought in the trial court. See Norwood, 161 Wis. 2d at 681.

¶ 5. Fearing responds that Wis. Stat. § 973.19 by its terms does not apply to his challenge because he has not been "sentenced to imprisonment or the intensive sanctions program." Section 973.19(l)(a). He also contends this court may elect to decide this appeal even if he has waived his right to review, and he urges us to do so.

¶ 6. As the State recognizes, generally probation is not considered a sentence, and the imposition of incarceration as a condition of probation is likewise not a sentence. See Horn, 226 Wis. 2d at 647;Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974). While "sentence" may also be used in a more general sense, to include probation, it "is a legal term and should be given its legal meaning when used in the statutes and the law unless there are strong indications the term was used in a general sense." Prue, 63 Wis. 2d at 116. See also State v. Mentzel, 218 Wis. 2d 734, 740, 581 N.W.2d 581 (Ct. App. 1998) (meaning of the term "sentence" depends on the particular statute involved and the setting to which the statute applies). Beyond citing cases applying WlS. Stat. § 973.19, all of which appear to involve sentences as a term of imprisonment, the State does not develop the argument that this statute applies when the challenge concerns jail confinement ordered as a condition of probation when no sentence has been imposed. Because the State has not developed the argument that the legislature intended a person "sentenced to imprisonment" under § 973.19 to include a person confined to jail as a condition of probation when no sentence has been imposed, we do not further consider this statute as a ground for the State's waiver argument.

¶ 7. Even if we assume, without deciding, that the court-established rule applied in Sears on which the State also appears to rely is sufficiently broad to encompass challenges to jail confinement imposed as a condition of probation, the rule has an exception for "compelling circumstance." Sears, 94 Wis. 2d at 140. We conclude there are compelling reasons to review Fearing's challenge to the court's order regarding jail confinement as a condition of probation. Both issues he raises are legal issues and do not depend on disputed facts or on the trial court's exercise of its discretion, both raise significant questions on the scope of the authority of the trial court in imposing jail confinement as a condition of probation. Most importantly, as we explain more fully below, we are persuaded that the trial court erred in delegating to the probation agent the discretion to determine the length of the term of jail confinement.

Good Time

¶ 8. Fearing contends that under Wis. Stat. § 302.43 he is entitled to earn good time while confined in jail as a condition of probation. Section 302.43 provides:

Good time. Every inmate of a county jail is eligible to earn good time in the amount of one-fourth of his or her term for good behavior if sentenced to at least 4 days, but fractions of a day shall be ignored. An inmate shall be givén credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). An inmate who violates any law or any regulation of the jail, or neglects or refuses to perform any duty lawfully required of him or her, may be deprived by the sheriff of good time under this section, except that the sheriff shall not deprive the inmate of more than 2 days good time for any one offense without the approval of the court. An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall be deprived of the number of days of good time specified in the court order prepared under s. 807.15 (3).

Wisconsin Stat. § 973.155(l)(a) addresses sentence credit for "actual days spent in custody" and includes credit while the offender is awaiting trial, being tried, and awaiting imposition of sentence after trial. Section 973.155(4) provides:

(4) The credit provided in sub. (1) shall include earned good time for those inmates subject to s. 302.43, 303.07 (3) or 303.19 (3) serving sentences of one year or less and confined in a county jail, house of correction or county reforestation camp.

¶ 9. According to Fearing, since these statutes entitle him to earn good time while confined in the county jail, and since no statute authorizes the court to deprive him of the statutory right to earn good time, the court erred in doing so.

¶ 10. We disagree with the premise of Fearing's argument — that WlS. Stat. §§ 302.43 and 973.155 entitle an offender to earn good time for jail confinement imposed as a condition of probation. In Prue, 63 Wis. 2d at 112, the court interpreted the predecessor to § 302.43, Wis. Stat. § 53.43 (1973), as not applying to persons confined in jail as a condition of probation. The court first considered WlS. Stat. § 973.09(1) (1973) authorizing the court to place a convicted defendant on probation for a stated period after either withholding or imposing sentence and staying its execution, and § 973.09(4) (1973) authorizing the court to require "as a condition of probation that the probationer be confined . . . during such . . . term of probation as the court specifies, but not to exceed one year." Prue, 63 Wis. 2d at 112-13. The court observed that § 973.09(4) (1973) did not use the term "sentenced" but rather "confined"; that § 973.09(1) (1973) made clear distinctions between a sentence and probation; and that § 973.09(4) (1973) did not mention good time or refer to § 53.43 (1973). See Prue, 63 Wis. 2d at 112-14. The court also considered the legislative history of § 53.43 (1973) and policy arguments. See id. at 113-14.

¶ 11. Fearing attempts to distinguish Prue based on this statement: "Probation is an alternative to a sentence; and the fact that a condition of confinement in the county jail is similar to the confinement of a sentence under the Huber law does not make a probation a sentence." Id. at 114. Fearing suggests that because he, unlike the defendant in Prue, has Huber privileges during his confinement in jail, the distinction the court in Prue made between being sentenced to jail and being confined to jail as a condition of probation is no longer applicable. We reject this argument because the Prue court did not base the distinction on the lack of Huber privileges at that time for defendants confined to jail as a condition of probation, but on the statutory analysis we have recounted above.

¶ 12. Fearing also points to cases decided after Prue holding that the imposition of probation constitutes the imposition of a sentence in certain other contexts. See State v. Booth, 142 Wis. 2d 232, 235, 418 N.W.2d 20 (Ct. App. 1987) (imposition of probation constitutes sentencing for purposes of determining which standard to apply to consideration of guilty plea withdrawal motion); State v. Thompson, 208 Wis. 2d 253, 254, 559 N.W.2d 917 (Ct. App. 1997) (under Wis. Stat. § 9Í73.15(2) imposed and stayed sentence accompanied by probation is sentence to which new sentence could be made consecutive); State v. Mentzel, 218 Wis. 2d 734, 743-44, 581 N.W.2d 581 (Ct. App. 1998) (defendant placed on probation, with court withholding a sentence, is "in custody under sentence of a court" within the meaning of Wis. Stat. § 974.06(1)). However, each of these cases concern legal standards or statutes that were not involved in Prue and are not involved in this case. They therefore are simply examples of the Prue court's statement that the particular statutory language must be examined to determine what meaning the legislature intended the term "sentence" to have, and of our statement in Mentzel that "the meaning of the term 'sentence' depends on the particular statute involved and the setting to which the statute applies." Mentzel, 218 Wis. 2d at 740.

¶ 13. We conclude that Prue controls the issue of good time here. There has been no change in the language of Wis. Stat. § 973.09(1) and (4) that the court relied on in its analysis. Although Wis. Stat. § 53.43 (1973) has been renumbered to Wis. STAT. § 302.43, the pertinent language is the same. The legislature has chosen not to alter the language in § 53.43 (1973) after the Prue court construed it as not applying to a person confined to jail as a condition of probation, but instead has carried it forward in § 302.43. See Roberta Jo W. v. Leroy W., 218 Wis. 2d 225, 233, 578 N.W.2d 185 (1998) (legislature's failure to modify statutory language after court's construction is an indication of legislative approval of the construction).

Length of Jail Confinement

¶ 14. Fearing contends there is no statutory authority for the Department of Corrections (DOC) to decide the length of his jail confinement as a condition of probation, and that it would be a violation of the separation of powers doctrine were DOC to do so. We agree with Fearing on his statutory argument and therefore do not address the separation of powers issue.

¶ 15. The roles of the court and of DOC with respect to probation are specifically prescribed by statute. As we have already mentioned, WlS. STAT. § 973.09(l)(a) authorizes the court to order probation as a disposition after a criminal conviction and to impose conditions of probation:

(l)(a) Except as provided in par. (c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate.

Under § 973.09(4), the court is authorized to require jail confinement as a condition of probation, to grant certain privileges during that confinement, and to delegate specific decisions to the sheriff:

(4) The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year. The court may grant the privilege of leaving the county jail, Huber facility, work camp or tribal jail during the hours or periods of employment or other activity under s. 303.08 (1) (a) to (e) while confined under this subsection. The court may specify the necessary and reasonable hours or periods during which the probationer may leave the jail, Huber facility, work camp or tribal jail or the court may delegate that authority to the sheriff.

In addition, the court is given the authority to "extend probation for a stated period or modify the terms and conditions thereof," prior to the expiration of the probation period, "for cause and by order." Section 973.09(3).

¶ 16. Once the court imposes probation, the defendant is in the custody of the DOC and is "subject ... to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision." Wis. Stat. § 973.10(1). DOC is also authorized to order a probationer to perform community service, in certain prescribed circumstances, see Wis. STAT. § 973.09(7m), and to initiate a proceeding before the Division of Hearings and Appeals to revoke probation if a probationer violates the conditions of probation. See § 973.10(2).

¶ 17. Nowhere in this statutory scheme is DOC given the authority to impose or modify a condition of probation, nor, more specifically, is it given the authority to decide to impose jail confinement as a condition of probation or the length of that confinement. Rather, the confinement in jail is for "such period ... as the court prescribes, but not to exceed one year." WlS. STAT. § 973.09(4) (emphasis added).

¶ 18. The State contends that the court has broad authority to impose any condition of probation that "appear[s] to be reasonable and appropriate," Wis. STAT. § 973.09(1), and that authorizing the probation agent to determine whether Fearing will be confined in jail for a second three-month period is a reasonable and appropriate condition. However, the State cites no cases upholding the court's authority to delegate to DOC the authority to impose conditions of probation. Moreover, under the State's reasoning, the court has the authority to delegate to the probation agent any decision that the court has the statutory authority to make, which would include whether to impose jail confinement at all as a condition of probation. This is inconsistent with the detailed delineation of the powers of the court and the powers of DOC regarding probation.

¶ 19. Contrary to the State's assertion, DOC's authority to administer probation is not the same as the authority to impose conditions of probation. Indeed, Wis. Stat. §973.10(1) specifically states that once probation is imposed by the court, the defendant is subject to the control of DOC "under conditions set by the court and rules and regulations established by the department. . . ." (Emphasis added.) Horn does not suggest otherwise, as the State contends.

¶ 20. In Horn, the court held that DOC's power to initiate probation revocation in an administrative proceeding was not unconstitutional as a violation of the separation of powers, after first concluding that probation and probation revocation are within shared powers and that administrative revocation does not unduly burden or substantially interfere with the judiciary's function to impose a criminal disposition. See Horn, 226 Wis. 2d at 648-50. While the issue decided in Horn was one of constitutional doctrine and not statutory interpretation, the court's discussion of the roles of the three branches of government with respect to probation has some bearing on this case. In summarizing the judicial role with respect to probation, the court stated: "In fact, like sentencing, the legislature has specifically granted the judiciary the authority to impose probation as an alternative to sentencing. Without such statutory authority, a court could not place a defendant on probation." Id. at 648 (citations omitted). In deciding that probation and probation revocation were within shared powers, the court stated, "[l]ike sentencing, the legislature has constitutional authority to offer probation as an alternative to sentencing, the judiciary has authority to impose probation, and the executive branch has the authority to administer probation." Id. Throughout the decision, the judiciary's function is described as "imposing criminal penalties." See, e.g., id. at 650.

¶ 21. Nothing in Horn suggests that any branch other than the judiciary has the statutory authority to impose criminal penalties, including probation. And Horn emphasizes the statutory source of the judiciary's authority to impose probation. Certainly, conditions of probation, and, most certainly, the condition of jail confinement and the length of that confinement, are a component of the criminal penalty of probation. The legislature has given authority to the judiciary to impose those conditions and it has not given that authority to DOC.

¶ 22. We conclude that the trial court exceeded its statutory authority in authorizing the probation agent to decide whether to require Fearing to serve the stayed three months in jail as a condition of probation, after serving the first three months. We therefore reverse this portion of the court's disposition and remand for further proceedings consistent with this decision.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The start date for serving the term of jail confinement was stayed by the trial court pending this appeal.

       In Hayes v. State, 46 Wis. 2d 93, 101, 175 N.W.2d 625 (1970), overruled on other grounds, the court adopted the rule that a trial court had the power to change or modify a sentence after the execution of the judgment had commenced and the term ended. It imposed the same time limit for bringing a motion to modify a sentence as the statutory time limit for a postconviction motion for a new trial — one year from the date of sentencing; but, because the criminal code changed beginning July 1, 1970, the time limit was changed to ninety days. See id.
        at 106. In Farley v. State, 50 Wis. 2d 113, 115, 183 N.W.2d 33 (1971), the court held that the postconviction motion to modify a sentence permitted under Hayes was a requirement for appellate review of a sentence, absent compelling circumstances. Hayes and Farley were relied on in Gaddis v. State, 63 Wis. 2d 120, 129, 216 N.W.2d 527 (1974), which, in turn, was relied on by the court in Sears v. State, 94 Wis. 2d 128, 140, 287 N.W.2d 785 (1980).

       We confine our discussion on waiver to the cases and statutes relied on by the State in its argument.

       In Prue v. State, 63 Wis. 2d 109, 110-11, 216 N.W.2d 43 (1974), the defendant was sentenced to two years in prison, execution of that sentence was stayed and he was placed on probation for one year with the condition he would spend the first six months in the comity reforestation camp. Under WlS. STAT. § 56.07(9) (1973), persons "sentenced to such camp for less than one year or in lieu of a county jail sentence shall be subject to the same diminution of time as is provided in s. 53.43."

       The court observed that a court has the authority to order good time when it imposes confinement in jail as a condition of probation, and that it may change the terms of probation under WIS. Stat. § 973.09(3) (1973). See Prue, 63 Wis. 2d at 114. This flexibility, the court stated, was important in order that probation be an effective tool for rehabilitation. See id.

       Wisconsin Stat. §973.09(4) (1973) has since been amended to authorize the court to grant Huber privileges. Section 973.09(4) (1997-98).


author: PETERSON, J. CANE, C.J.

text:
    Lee Rasmussen, Plaintiff-Appellant, v. Blue Cross/Blue Shield United of Wisconsin, Inc., Defendant-Respondent.
    Court of Appeals

      No. 00-1241-FT.

      Submitted on briefs August 30, 2000.

    Decided September 26, 2000.

    2000 WI App 220
    (Also reported in 619 N.W.2d 147.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mitchell Hagopian, of Coalition of Wisconsin Aging Groups Elder Law Center, Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Deborah J. Powers, Milwaukee.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.

      Petition to review denied.

   PETERSON, J.

¶ 1. Lee Rasmussen appeals a judgment dismissing his breach of contract action against Blue Cross & Blue Shield United of Wisconsin. We hold that the date proof of loss is required to be furnished pursuant to Wis. Stat. § 63l.83(l)(b) is determined by whether the time extension provision of the insurance policy applies. Because Rasmussen failed to file his claim within the statutory time limits, we affirm the judgment.

BACKGROUND

¶ 2. Rasmussen owned a Blue Cross Medicare supplemental health insurance policy. From January of 1995 to October 1,1995, Rasmussen was a patient at the Golden Age Nursing and Rehabilitation Center. He received Medicare benefits for the first 100 days, until May 1,1995.

¶ 3. Rasmussen submitted proof of loss claims to Blue Cross for services rendered at Golden Age after the Medicare benefits expired, namely from May 1, 1995 through October 1,1995. Rasmussen's insurance policy required submitting proof of loss within ninety days of receiving medical services, unless it was not reasonably possible to file within that time, in which case proof of loss could be submitted within fifteen months of receiving services. It is undisputed that Rasmussen submitted a proof of loss to Blue Cross within the ninety-day requirement. For reasons unrelated to this appeal, Blue Cross denied his claims.

¶ 4. Rasmussen filed suit on June 30,1999, alleging breach of contract. Blue Cross filed a motion to dismiss pursuant to Wis. Stat. § 631.83(l)(b), arguing that the action was time barred. The circuit court determined that Rasmussen had three years plus ninety days to file suit and that the statute of limitations had run on July 31, 1998. The circuit court granted Blue Cross's motion.

STANDARD OF REVIEW

¶ 5. This appeal requires an analysis of statutory language and contract language. Interpreting the statute of limitations presents a question of law that is reviewed independently of the circuit court. See Al Ghashiyah v. Prudential Ins. Co., 198 Wis. 2d 699, 702, 543 N.W.2d 538 (Ct. App. 1995). The meaning of an unambiguous contract is a question of law that we also review independently. See INA v. DEC Int'l, Inc., 220 Wis. 2d 840, 845, 586 N.W.2d 691 (Ct. App. 1998). We determine, as a matter of law, whether an ambiguity exists in a contract. See id.

DISCUSSION

¶ 6. The sole issue on appeal is what date proof of loss is required to be furnished. Rasmussen argues that Blue Cross's policy permits proof of loss to be filed as late as fifteen months from the time medical services are first rendered, thus allowing him to commence an action against Blue Cross three years and fifteen months after the medical services had been rendered by Golden Age. We disagree.

¶ 7. Wisconsin Stat. § 631.83(l)(b) provides that "[a]n action on disability insurance coverage must be commenced within three years from the time written proof of loss is required to be furnished." To determine the date proof of loss is required to be furnished, we examine the health insurance policy. Article X.A.3 provides:

3. Proof of loss
Whether YOU submit a claim to US, or the provider of service submits it to US on YOUR behalf, WE must receive proof of the CHARGES for the services YOU received, within 90 days after the earlier of:
a: YOUR admission to the HOSPITAL or SKILLED NURSING FACILITY; or
b: the date YOU first receive MEDICAL SERVICE or MEDICAL SUPPLIES AND SERVICES.
WE will still process YOUR claim if:
a: it wasn't reasonably possible for YOU to give US proof of loss within 90 days; and
b: YOU give US proof as soon as YOU reasonably can, but not more than 15 months after YOU receive care.
Claims which are sent to US more than 15 months after YOU receive care will not be processed or paid.

This provision clearly states that a policyholder is required to provide proof of loss within ninety days. The fifteen-month period only applies if it is not reasonably possible for the policyholder to provide proof of loss within the ninety-day limit.

¶ 8. Rasmussen argues that the date proof of loss is required to be furnished is the last date under the policy. The statutory limit for commencing a cause of action is three years from the date proof of loss is required. Because proof of loss may not be required to be filed until as long as fifteen months after receipt of services, Rasmussen asserts that the three-year statute of limitations pursuant to Wis. Stat. § 631.83(l)(b) cannot begin running until that fifteen-month period expires. We are not persuaded.

¶ 9. If Rasmussen's interpretation applied, he would have had three years plus fifteen months to commence an action, or until July 31,1999. Here, however, there is no dispute that the ninety-day time limit to file proof of loss applied, not the fifteen-month proof of loss exception. Rasmussen's required date to provide proof of loss was ninety days from the first day he received medical services, or July 31,1995. Rasmussen submitted proof of loss within ninety days, and the statute of limitations began to run on the ninetieth day, expiring three years later on July 31,1998. As a result, Rasmussen's action against Blue Cross was untimely and is thus barred by Wis. Stat. § 631.83(l)(b).

¶ 10. Rasmussen alternatively argues that art. XI.E.2 is ambiguous and should be construed against Blue Cross. That article states:

YOU may not sue US more than 3 years after YOU were required to file written proof of loss. Since YOU have 90 days to file proof of loss, this means that if YOU sue US, YOU must do so within 39 months of the first date of service on which legal action is based.

Rasmussen contends that this provision has the effect of limiting the commencement of legal action that was brought within the fifteen-month proof of loss provision to only two years from the date proof of loss was required to be furnished, thus violating Wis. Stat. § 631.83(l)(b) and (3). Again, we are not persuaded.

¶ 11. Simply put, Rasmussen is not subject to the fifteen-month proof of loss provision. Article XI.E.2 applies only to the ninety-day proof of loss requirement. The language in the policy provision, "[sjince YOU have 90 days to file proof of loss," does not contemplate limiting the commencement of a legal action that was brought within the fifteen-month proof of loss provision. It simply does not address what the limitation on the commencement of legal action is when the fifteen-month proof of loss provision does apply. That this provision addresses only the ninety-day proof of loss requirement does not make the policy ambiguous.

¶ 12. Because Rasmussen was subject to the ninety-day requirement to give notice of proof of loss, the statute of limitations began to run at the end of the ninety days. When the statute expired on July 31, 1998, Rasmussen was barred from commencing the action against Blue Cross.

By the Court. — Judgment affirmed.

CANE, C.J.

¶ 13. (dissenting). I respectfully dissent. Everyone agrees that this case ultimately depends on the date "proof of loss is required to be furnished" under Wis. Stat. § 631.83(l)(b). Additionally, everyone agrees that if the fifteen-month limit applies, the action was timely filed. Blue Cross contends that because in this instance Rasmussen was required to file his proof of loss within ninety days of receiving medical services, the action had to be filed within three years and ninety days of receiving medical care. However, Rasmussen correctly observes that the insurance policy also permits a proof of loss to be filed as late as fifteen months after the date of receiving medical service when it is not reasonably possible to file it within ninety days of receiving medical care.

¶ 14. The policy in relevant part provides:

WE will still process YOUR claim if:
a: it wasn't reasonably possible for YOU to give US proof of loss within 90 days; and
b: YOU give US proof as soon as YOU reasonably can, but not more than 15 months after YOU receive care.
Claims which are sent to US more than 15 months after YOU receive care will not be processed or paid.

¶ 15. In the event of ambiguity or obscurity, the language of an insurance policy should be construed against the insurance company that drafted the policy. See Maas v. Ziegler, 172 Wis. 2d 70, 79, 492 N.W.2d 621 (1992). In this case, the litigants have advanced two reasonable interpretations regarding when the insured is required to file the proof of loss. Blue Cross reasons that under the policy, the proof of loss must be filed within ninety days of receiving medical care unless it was not reasonably possible to give the proof of loss within that time period. It concludes that because Rasmussen has filed the proof of loss within ninety days, the exception does not apply and therefore the ninety-day period was the required time for the proof of loss to be filed. On the other hand, Rasmussen reasons that we should look only to the outer limit for when an insured is required to file the proof of loss. He contends that the fifteen-month period is not an exception, but rather a provision in the policy simply allowing an insured to file the proof of loss within fifteen months of receiving medical care.

¶ 16. Additionally, any provision tending to limit the insurance company's liability should be construed most strongly against the insurance company. See INA v. Universal Mtg. Corp., 82 Wis. 2d 170, 178, 262 N.W.2d 92 (1978). Furthermore, while interpretation of a statute of limitations should not unduly prolong the time period during which a suit may be commenced, the interpretation should also be sensitive to protecting access to the courts. See Korth v. American Fam. Ins. Co., 115 Wis. 2d 326, 333, 340 N.W.2d 494 (1983).

¶ 17. Blue Cross's interpretation has the effect of limiting its potential liability for claims by reducing twelve months from the time some policyholders have to commence suit. On the other hand, if Rasmussen's interpretation is correct, all policyholders would be treated equally and would have three years and fifteen months after receiving medical care to file their action. Even though Rasmussen filed his proof of loss within ninety days, I would agree with him that the date the proof of loss was actually filed is irrelevant.

¶ 18. I would conclude that for purposes of determining when "proof of loss is required to be furnished" under Wis. STAT. § 631.83(l)(b), the last date that proof of loss could be filed under the policy is the appropriate date. Thus, the three-year time limit under § 631.83(l)(b) would not begin running until that fifteen-month period expires. Consequently, I would conclude that the action was timely filed.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise noted.

       Wisconsin Stat. § 631.83(3) reads as follows:
      Prohibited Clauses of Policies. No insurance policy may:
      (a) Shorten periods of limitation. Limit the time for beginning an action on the policy to a time less than that authorized by the statutes;

        (b) Limit jurisdiction. Prescribe in what court action may be brought thereon; or
      (c) Proscribe action. Provide that no action may be brought.