author: CANE, C.J.

text:
    Ernie Lessard and Susan Lessard, Petitioners-Appellants, v. Burnett County Board of Adjustment, Respondent-Respondent.
    Court of Appeals

      No. 01-2986.

      Submitted on briefs May 21, 2002.

    Decided June 25, 2002.

    2002 WI App 186
    (Also reported in 649 N.W.2d 728.)

      On behalf of the petitioners-appellants, the cause was submitted on the briefs of William L. Norine of Stephenson & Sanford PLC of Grantsburg.
    On behalf of the respondent-respondent, the cause was submitted on the brief of David L. Grindell of Siren.
    Before Cane, C.J., Hoover, PJ. and Peterson, J.
   CANE, C.J.

¶ 1. Ernie and Susan Lessard appeal a judgment upholding a decision of the Burnett County Board of Adjustment granting the Lessards a conditional use permit to expand their campground from twenty-one to forty-four units, upon the condition that six preexisting sites located near the lake be phased out over five years. The Lessards claim that the board acted without a reasonable basis and contrary to law because: (1) the zoning ordinance does not apply to their preexisting campsites; (2) the zoning ordinance cannot regulate mere increases in use; (3) the zoning ordinance does not apply to discontinued portions of the campground; (4) in order to apply the ordinance, there must be proof of abandonment; and (5) the conditions attached to the permit are unreasonable.

¶ 2. We conclude that the board correctly applied the ordinance to the proposed expansion and did not attempt to regulate a mere increase in a preexisting use. We also reject the alternative argument that the discontinuance provisions of the ordinance do not apply. Proof of intent to abandon is not required, and the conditions attached to the permit have a rational basis. Accordingly, we affirm the judgment.

BACKGROUND

¶ 3. The Lessards own and operate a campground formerly known as the Hi-Haven Resort. It has existed since 1935, predating the Burnett County Zoning Ordinance. Six of Hi-Haven's existing camping sites are located within seventy-five feet of the ordinary high water mark of Yellow Lake. Under the zoning ordinance, Yellow Lake has a setback requirement of not less than seventy-five feet from the ordinary high water mark.

¶ 4. On August 7, 2000, the Lessards applied to the Burnett County zoning administrator for a conditional use permit to add twenty-three RV sites. It is undisputed that for at least the ten years preceding their application, Hi-Haven had been licensed for a maximum of twenty-one sites. The Lessards' application stated that they planned to "[e]xpand existing campground to 44 sites total (existing campground has 21 sites) we would like to add 23 more."

¶ 5. The committee's minutes indicate that the original resort had RV sites "over the years," nine rental cabins and a lodge. The lodge had burned, and only six cabins remained. The Lessards planned to remove the remaining cabins and increase the number of RV sites. A diagram attached to the minutes indicated that a future septic field is planned near future sites thirty-nine through forty-four and "power [will be] supplied to each RV site by N.W. Electric Co."

¶ 6. The zoning committee determined that a permit was necessary for the Lessards' planned addition of twenty-three more RV sites. It issued a permit, upon the condition that the six sites within the seventy-five-foot setback of Yellow Lake be moved over the next five years in order to comply with the zoning ordinance. The Lessards appealed to the board, which affirmed the committee's determination. A board member remarked: "I believe the zoning committee had the authority to grant the [conditional use permit] because we're changing a resort to an RV park [and] also changing the number of campgrounds from 21 to 44."

¶ 7. The Lessards sought certiorari review in the circuit court, arguing that because no structures were involved, the zoning ordinance did not apply. The circuit court disagreed. It found that the County's land use ordinance prohibits all RV parks except those that predate the adoption of the zoning ordinance or those that possess a conditional use permit. The court considered the ordinance section that provided any proposed change in the approved campground shall be presented to the zoning office for approval.

¶ 8. The circuit court concluded that the ordinance applied to the Lessards' proposed expansion of the campground and authorized the County to attach reasonable conditions to a conditional use permit. It determined that the board's desire to eliminate nonconforming uses in a planned manner was consistent with the intent of the ordinance. The court held that the board proceeded under a correct theory of law and that there was no basis for overturning its decision.

BURNETT COUNTY LAND USE ORDINANCE

¶ 9. Under the ordinance, the campground is zoned RR-1, a residential-recreation district. Permitted uses include one-family dwellings, private garages and carports, horticulture and gardening, and essential services, utilities and customary accessory uses. Resorts and trailer parks may be permitted if authorized by a conditional use permit. Burnett County, Wis., Land Use Ord. § 3.2(2)(b)(2). The ordinance authorizes the zoning committee to attach reasonable conditions to the permit. Id. at § 8.1(3).

¶ 10. The zoning ordinance also regulates campgrounds. Id. at § 6.7. It prohibits camping within seventy-five feet of the ordinary high water mark of any navigable water. Id. at § 6.7(l)(g). It also requires that "[a]ny proposed changes in the approved campground be presented to the Zoning Office for approval." Id. at § 6.7(1)(e).

¶ 11. With respect to nonconforming uses, the ordinance provides: "The existing lawful use of a structure or premises which is not in conformance with the provisions of this ordinance may be continued" subject to certain conditions. Id. at § 10.1. One condition provides that if a nonconforming use "is discontinued for twelve (12) consecutive months, any future use of the building and premises shall conform to this ordinance." Id. at § 10.1(2). Another condition provides that no structural addition can exceed fifty percent of the structure's fair market value. Id. at § 10.1(1).

STANDARD OF REVIEW

¶ 12. In an action for certiorari review, our review is the same as in the trial court. City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 102, 604 N.W.2d 870 (Ct. App. 1999). We confine our review to whether: (1) the board kept within its jurisdiction; (2) the board acted according to the law; (3) the action was arbitrary, oppressive or unreasonable; and (4) the evidence presented was such that the board might reasonably make the order or determination in question. Id. at 102-03.

DISCUSSION

1. The Zoning Ordinance's Application to Expanded Use

¶ 13. The Lessards argue that the board cannot point to any language in the ordinance to support its decision. They contend that because the campground is a preexisting use and because they are making no structural additions that exceed fifty percent of the property's current market price, or that violate setback requirements, the ordinance is inapplicable. As a result, they assert that the board acted without reason and contrary to law. We disagree.

¶ 14. It is undisputed that Hi-Haven operates as a nonconforming use that preexisted the ordinance. We conclude that the board recognized the Lessards' right to operate the campground as it had been operated in the past. However, in issuing the conditional use permit, the board sought to regulate the proposed expanded use. In doing so, the board acted rationally and according to law.

¶ 15. The zoning ordinance provides that the "existing use" of premises not in conformance with the ordinance may be continued. An existing nonconforming use is a use of land for a purpose not permitted in the district in which the land is situated. Waukesha County v. Seitz, 140 Wis. 2d 111, 114-15, 409 N.W.2d 403 (Ct. App. 1987). Land use qualifies as nonconforming if there is active and actual use of the land that existed before the commencement of the zoning ordinance and has continued in the same or a related use until the present. Id. at 115.

¶ 16. The County may properly limit its recognition of nonconforming uses to only those in effect at the time the zoning law became effective. "[N]onconform-ing uses are closely limited and are not to be enlarged in derogation of the general scheme" of the ordinance. Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 24, 522 N.W.2d 536 (Ct. App. 1994) (citation omitted).

While a county may not prohibit the continuance of the lawful use of any building or premises for any trade or industry for which such building or premises is used at the time the ordinances take effect, see § 59.69(10), Stats., the statutory authority to regulate nonconforming uses under § 59.69(10) includes the authority to enact ordinances that limit the change or extension of non-conforming uses.

Schroeder v. Dane County Bd. of Adj., 228 Wis. 2d 324, 339, 596 N.W.2d 472 (Ct. App. 1999).

¶ 17. "In general, a nonconforming use is limited to the area it covers at the time of the enactment of the zoning ordinance or restriction and cannot later be expanded to the boundaries of the tract." 8A McQuillan, Municipal CORPORATIONS § 25.208, at 128 (rev. 3d ed. 1994).

Where an extension of a nonconforming use involves a physical extension of the use to land not used for the prohibited purpose prior to the enactment of the restrictive ordinance, the courts have held that the extension violates an ordinance which in general language prohibits the extension of nonconforming uses.

1 AndeRSon's American Law op Zoning § 6.51, at 642 (4th ed. 1995).

¶ 18. In a case prohibiting a mobile home park expansion, the Colorado Supreme Court ruled "the stopping of an expansion of a non-conforming use is not an arbitrary or unreasonable exercise of governmental power." City Of Greeley v. Ells, 527 P.2d 538, 541-42 (Colo. 1974) (citation omitted). We agree that this statement accurately reflects the law. The board's decision to issue the conditional use permit to regulate the Lessards' proposed addition of twenty-three RV sites was rationally based and made according to law.

¶ 19. The Lessards nonetheless claim that they are not expanding the campground but merely resuming former use. They argue that "the resort has had at least 44 units as early as 1935 as profusely demonstrated before the Board of Adjustment and, moreover, this factual contention was never opposed by the County." The Lessards also argue that the County never opposed the proof that "the entire property was used as a campground since 1935, and that many more than 21 sites had been operated." We are not persuaded.

¶ 20. A nonconforming use will not be recognized in the absence of sufficient competent evidence to prove it was lawfully in existence at the time the ordinance was enacted. McQuillin, supra, at § 25.188.50. "The burden of establishing that the use in question is fundamentally the same use and not a new and impermissible one is on the party asserting it." Pewaukee Marina, 187 Wis. 2d at 30 (citation omitted). The allocation of this burden is " 'in accordance with the general policy of zoning to carefully limit the extension and enlargement of nonconforming uses.'" Id.

¶ 21. The Lessards identify no board findings to support their assertion. The testimony before the board as to the dates and number of RV sites licensed or in use before 1987 was vague. The Lessards point to no proofs that the twenty-three additional RV units preexisted the ordinance. Instead, they cite to their own trial court brief and to the circuit court's finding that "Hi-Haven Resort has operated as a camping facility for many years, dating back to the earliest date of 1935."

¶ 22. These record references fall short of meeting the Lessards' burden of demonstrating that the preexisting use involved forty-four units. Because the Lessards identify no proofs and fail to provide appropriate references to the record to support their contentions, their argument fails. See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990).

2. Increase in use

¶ 23. Next, the Lessards correctly argue that mere increases in use due to change in volume or frequency cannot be regulated, citing Pewaukee Marina. Here, however, the board was not attempting to regulate mere increases in the use of the twenty-one sites due to a change in volume or frequency. Rather, the board issued the conditional use permit to regulate the expansion from twenty-one sites to forty-four sites.

¶ 24. While a mere increase in the volume, intensity or frequency of a nonconforming use is not sufficient to invalidate it, if the increase in volume, intensity or frequency of use is coupled with some element of identifiable change or extension, the enlargement will invalidate a legal nonconforming use. Seitz, 140 Wis. 2d at 117. The Lessards' proposed elimination of cabins and the expansion from twenty-one to forty-four RV sites was an identifiable change and extension of the previous use for which it had been licensed. Consequently, the board could properly issue a conditional use permit to regulate the change.

3. Discontinuance

¶ 25. Next, the Lessards challenge the board's alternative basis for their decision that even if Hi-Haven had operated forty-four RV sites in the past, its failure to license more than twenty-one sites demonstrates that their use had been discontinued for more than one year, allowing the County to apply the ordinance. The Lessards claim that to apply the ordinance's "discontinuance" provision, the entire campground and not just a portion of it had to have been discontinued. We are unpersuaded.

¶ 26. "A zoning ordinance or regulation may provide that the use of premises must conform to the ordinance or regulation if a nonconforming use thereof is discontinued for a designated period of time." State ex rel. Peterson v. Burt, 42 Wis. 2d 284, 290, 166 N.W.2d 207 (1969); see also Wis. Stat. § 59.69(10).

¶ 27. The Lessards offer no persuasive authority for their assertion that the discontinuance provision cannot be applied to portions of the campground. By analogy, they cite the "diminishing assets" rule found in Sturgis v. Winnebago Adj. Bd., 141 Wis. 2d 149, 413 N.W.2d 642 (Ct. App. 1987). The Sturgis case, which determined that a conditional use permit was unnecessary to expand a quarrying operation, does not apply. Id. We explained:

Because of this unique nature of mineral extraction, many courts have adopted the "diminishing assets" rule, which we deem applicable here."In a quarrying business the land itself is a mineral or resource. It constitutes a diminishing asset and is consumed in the very process of use. Under such facts the ordinary concept of use, as applied in determining the existence of a nonconforming use, must yield to the realities of the business in question and the nature of its operations. We think that in cases of a diminishing asset the enterprise is 'using' all that land which contains the particular asset and which constitutes an integral part of the operation, notwithstanding the fact that a particular portion may not yet he under actual excavation. It is in the very nature of such business that reserve areas be maintained which are left vacant or devoted to incidental uses until they are needed."

Id. at 153 (quoting Du Page County v. Elmhurst-Chicago Stone Co., 165 N.E.2d 310, 313 (Ill. I960)). "[T]he very nature of the excavating business contemplates the use of land as a whole, not a use limited to a portion of the land already excavated." 1 Anderson, supra, § 6.52, at 647-48. We decline to extend the diminishing assets rule beyond the realm for which it was intended, that of mineral extraction. Because the Lessards' business does not involve mineral extraction, the diminishing assets rule does not apply.

¶ 28. Under the Burnett County Land Use Ordinance, if a use is discontinued for more than twelve months, future use must conform to the ordinance. Id. at § 10.1(2). It is the Lessards' burden to establish the existing actual and active use. See Pewaukee Marina, 187 Wis. 2d at 30. Even if the Lessards had demonstrated that Hi-Haven had operated forty-four RV units in the past, because only twenty-one had been licensed since 1987, the board could reasonably conclude that they had been discontinued and their use could not be resumed without a permit. See Spencer v. Zoning Hear ing Bd., 533 A.2d 497, 500 (Pa. Commw. 1987) (Use of second nonconforming mobile home had been abandoned within the meaning of the ordinance and may not be resumed.).

4. Intent to Abandon

¶ 29. The Lessards claim that even if a portion of the campground had been discontinued, there was no proof of any intent to abandon those sites. They claim that absent proof of intent to abandon the sites, the ordinance's discontinuance provision does not apply. This argument was rejected in Peterson. To apply the "discontinuance" provisions, proof of intent to abandon the nonconforming use is not required. Peterson, 42 Wis. 2d at 290-91; see also Village of Menomonee Falls v. Veierstahler, 183 Wis. 2d 96, 104, 515 N.W.2d 290 (Ct. App. 1994) ("The question of voluntary intent is irrelevant where the cessation of the nonconforming use has endured for the requisite time under the ordinance.").

¶ 30. Under the terms of the ordinance, if a nonconforming use has been discontinued for more than twelve months, proof of intent to abandon the nonconforming use is not required. Peterson, 42 Wis. 2d at 290-91. Here, the campground was licensed for just twenty-one sites for more than ten years preceding the application. Consequently, the board could find that sites in excess of twenty-one had been discontinued within the meaning of the ordinance.

5. Reasonableness of the Conditional Use Permit

¶ 31. Finally, the Lessards complain that attaching the condition that the six sites within the seventy-five-foot setback be eliminated within five years is arbitrary and unreasonable. We disagree. "[T]he spirit of zoning is to restrict a nonconforming use and to eliminate such uses as quickly as possible." Seitz, 140 Wis. 2d at 116. It is up to the Lessards whether to accept the permit with its conditions. The board's decision to permit the proposed expansion upon the condition that the six sites within the setback be eventually eliminated is reasonably related to the legitimate goal to bring the campground into compliance with the land use ordinance.

CONCLUSION

¶ 32. There is no dispute that the campground has operated as a nonconforming use that preexisted the ordinance. The board recognized the Lessards' right to continue to operate the campground as it had been operated in the past. However, for more than ten years preceding the Lesssards' application, the campground was licensed for only twenty-one units. The ordinance applies to any proposed expansion. Also, the board could reasonably find that any units in excess of twenty-one had been discontinued and the resumption of their use required a permit. The conditions attached were reasonable. We conclude the board acted according to law and its determination had a rational basis. The Lessards fail to demonstrate any ground to overturn the board's decision.

By the Court. — Judgment affirmed.

       Although the record reflects that the Lessards changed the name of the campground, the parties' briefs refer to it as Hi-Haven Resort.

       At the December 4 public hearing, the zoning administrator stated that records indicate that from 1987, the campground was licensed for twenty-one sites.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       In their statement of facts, other than their citation to the trial court's findings, conclusion and judgment, the Lessards cite generally to their trial court brief. Their trial court brief cites to the "Memorandum of Ernie and Susan Lessard in the Burnett County Board of Adjustment." The supporting memorandum's statement of facts contains no references to proofs. Citation to a trial court brief fails to comply with Wis. Stat. § 809.19(1)(d), which requires "appropriate references to the record." Id.; see also Calaway v. Brown County, 202 Wis. 2d 736, 750-51, 553 N.W.2d 809 (Ct. App. 1996).

       Arguably, Waukesha County v. Seitz, 140 Wis. 2d 111, 409 N.W.2d 403 (Ct. App. 1987), could be read as authorizing an expanded nonconforming use. See Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 20, 522 N.W.2d 536 (Ct. App. 1994) ("Extension of Seitz's marina pier was simply an improvement of a legal nonconforming use to accommodate increased boater traffic; it did not change the use."). A close reading of Seitz reveals, however, that it did not directly address the issue whether a physical extension or physical enlargement of a nonconforming use invalidates it. Seitz states: "The expansion of a pier ... may ... serve to constitute an illegal expansion of a nonconforming use." Seitz, 140 Wis. 2d at 119. Seitz noted that the issue is expressly controlled by statute and ordinance, "neither of which was alleged or proven in this case." Id. Seitz also noted that the "record is devoid of any allegation or evidence indicating that Seitz's pier expansion has somehow violated these legislative markers." Id. at 121. Therefore, we do not read Seitz as protecting the physical extension of a nonconforming use. A later case that refers to "expansion of a legal nonconforming use" refers to increased volume and frequency. Racine County v. Cape, 2002 WI App 19, 250 Wis. 2d 44, ¶ 14, 639 N.W.2d 782.

       At the December 4, 2000, board meeting, the zoning administrator questioned whether the issue of reasonableness of the conditions was properly before the board. For purposes of judicial economy, we address the issue here.


source: Caselaw Access Project

author: HOOVER, PJ.

license: Public Domain

text:
    Mark R. Kosieradzki, Guardian ad Litem for Kyle Krumm, minor, Warren W. Wood, Guardian ad Litem for Karl Krumm and Alicia Krumm, Joyce Krumm, individually, and Kevin Krumm, individually, Plaintiffs-Respondents, v. Lori Mathys and Society Insurance, a mutual company, Defendants-Appellants, Safeco Insurance Company of Illinois, Defendant, Blue Cross Blue Shield of Minnesota, Blue Plus and State of Wisconsin Department of Health and Family Services, Subrogated-Parties.
    Court of Appeals

      No. 02-0026-FT.

      Submitted on briefs May 2, 2002.

    Decided June 25, 2002.

    2002 WI App 191
    (Also reported in 649 N.W.2d 717.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of James W. Mohr, Jr. and Mohr & Anderson, S.C., of Hartford.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Mark R. Kosieradzki and Kosieradzki Law Firm of Minnetonka, MN.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 9-26-02.

   HOOVER, PJ.

¶ 1. Lori Mathys and Society Insurance appeal a summary judgment holding that Society's "each accident" limit applies in a personal injury case arising from an accident in which Mathys' car struck and injured Kyle Krumm. Mathys and Society argue that the policy's "each person" limit applies because the claims of emotional distress made by Kyle's family members all arise out of Kyle's bodily injury. The Krumms maintain that the "each accident" limit applies because they each suffered emotional distress, which has been recognized as a separate bodily injury. We conclude that Estate of Gocha v. Shimon, 215 Wis. 2d 586, 573 N.W.2d 218 (Ct. App. 1997), controls our decision and that, under the policy, the Krumms' claims are covered by the "each person" limit. Accordingly, we reverse the judgment.

Background

¶ 2. The facts are undisputed. On the morning of May 15, 1998, Mathys drove her vehicle along County Road I in Somerset, Wisconsin. Joyce, Kyle's mother, and Karl, Kyle's twin brother, were seated in the family vehicle in the Krumms' driveway. Kyle attempted to retrieve mail from the mailbox across the road from the Krumms' house. While crossing the road, Kyle was struck by Mathys' car. Joyce and Karl witnessed the accident and its immediate aftermath. Kyle's father, Kevin, and sister, Alicia, were in the house at the time of the accident. Both came to the scene immediately after the accident and also witnessed the aftermath.

¶ 3. As a result of the accident, Kyle suffered a severe traumatic brain injury with central autonomic dysfunction. He remains severely disabled and is dependent upon others for daily living activities.

¶ 4. The Krumms brought this action against Mathys and Society, among others. Joyce, Karl, Kevin and Alicia assert claims for emotional distress. The Society policy sets liability limits at $50,000 for "each person" and $100,000 for "each accident." The insurance policy defines "bodily injury" as "bodily harm, sickness or disease, including death that results." The policy further provides:

The limit of liability shown in the Schedule or in the Declarations for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, and loss of services [including loss of consortium] or [wrongful] death, arising out of "bodily injury" sustained by any one person in any one auto accident.

¶ 5. The parties entered into a settlement agreement that provides that Society will pay its "policy limits." The Krumms sought a declaration that the applicable policy limit is the $100,000 for "each accident." Mathys and Society asked the court to declare that the $50,000 "each person" limitation applies here. Both parties moved for summary judgment. Because the Society policy does not contain exactly the same language as in Gocha, a case Mathys and Society argued was controlling, the trial court decided that the Krumms1 emotional injuries did not trigger the "each person" limit and ordered that the "each accident" limit is applicable. On appeal, the only issue is whether the $100,000 "each accident" limit or the $50,000 "each person" limit applies.

Legal Standards

¶ 6. The review of a summary judgment is de novo, using the same methodology as the trial court. M & I First Nat'l Bank v. Episcopal Homes Mgmt., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). Summary judgment is appropriate where, as here, the record demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wxs. Stat. § 802.08(2).

¶ 7. This case turns on the interpretation of the language in Mathys' insurance policy with Society, which is also a question of law we review de novo. See Danbeck v. American Fam. Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150. An insurance policy is construed to give effect to the parties' intent, expressed in the policy language, which we interpret as a reasonable person in the position of the insured would understand it. Id. We give the words of an insurance policy their common and ordinary meaning. Id. Where the policy language is plain and unambiguous, we enforce it as written, without resort to rules of construction or case law. Id.

Discussion

¶ 8. Mathys and Society argue that the "each person" limit applies because only Kyle suffered "bodily injury" and the other Krumms' emotional distress claims "arise out of' Kyle's injuries. The Krumms, on the other hand, argue that the policy's "each accident" limit applies to their emotional distress claims because (1) their claims are independent and non-derivative; (2) emotional distress is a claim for "bodily injury;" and (3) the insurance policy language here is distinguishable from Gocha. We agree with Mathys and Society.

¶ 9. Richie v. American Fam. Mut. Ins. Co., 140 Wis. 2d 51, 57, 409 N.W.2d 146 (Ct. App. 1987), stands for the principle that "If only one person receives bodily injuries in a collision, the 'each person' limitation applies no matter how many others may derive secondary claims from those injuries."

¶ 10. In Bowen v. Lumbermen's Mut Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), our supreme court later held that emotional distress claims are independent, not derivative. The Krumms argue that, under Bowen, their claims are independent of Kyle's injuries, each of them is a person with a $50,000 limit, and they are subject only to the "each accident" limit. In Gocha, 215 Wis. 2d at 591, we rejected a similar argument based on the independent nature of Bowen emotional distress claims. How the law defines particular claims is immaterial. At issue is how the policy treats them, which is determined by the language of the policy. Id. That is, the language of the policy controls which limits apply because whether a claim is derivative does not affect the applicable limits. Here, as shown below, the policy language ties the Krumms' claims to the "each person" limit.

¶ 11. In Gocha, 215 Wis. 2d at 588-89, we addressed whether "each person" or "each accident" limits applied where the facts were very similar to this case, and we concluded that the "each person" limit applied. Kyle Gocha was riding his bike when he was struck by a vehicle driven by Shimon. Id. at 589. Four members of the Gocha family either witnessed the accident or its immediate aftermath, and they sought damages for emotional distress. Id. The insurance policy in Gocha defined "bodily injury to one person" to include "all injury and damages to others resulting from this bodily injury." Id. The limits of liability section in the Gocha policy stated:

Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. "Bodily injury to one person" includes all injury and damages to others resulting from this bodily injury. Under "Each Accident" is the total amount of coverage, subject to the amount shown under "Each Person", for all damages due to bodily injury to two or more persons in the same action.

Id. We determined that under the terms of the policy, the family's claims were subject to the "each person" limit rather than the "each accident" limit, noting, "But for the bodily injury to Kyle, the Gochas would not have suffered any emotional injuries." Id. at 593. We concluded, "the emotional injuries suffered by the Gochas which resulted from witnessing Kyle's accident trigger the 'each person' limits. Id. The injuries suffered by the Gochas arise out of Kyle's bodily injury, not their own." Id. We also stated that, as defined in the policy," 'bodily injury' is a narrow concept and applies only to the injuries the victim suffered in the accident." Id. at 594.

¶ 12. The Krumms attempt to distinguish Gocha by pointing out differences in the policy language. However, the critical language has the same effect. Both policies limit claims related to the bodily injury of one person to a certain coverage limit.

¶ 13. The Krumms' claims trigger that limit here. The Society policy sets liability limits at $50,000 for "each person" and $100,000 for "each accident." It defines "bodily injury" as "bodily harm, sickness or disease, including death that results." The policy further provides:

The limit of liability shown in the Schedule or in the Declarations for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, and loss of services [including loss of consortium] or [wrongful] death, arising out of the "bodily injury11 sustained by any one person in any one auto accident. (Emphasis added.)

Although the language here refers to all damages arising out of injury to one person and does not specifically mention damage sustained by others, claims for "loss of services or death" necessarily include claims brought by persons other than the one injured in the accident. The policy here limits the recovery for all claims arising out of the injury of one person. Although those claims, such as emotional distress, may be independent and non-derivative and constitute "bodily injury," they arise out of the injury one person sustained.

¶ 14. Here, Kyle sustained the injuries. But for Kyle's injuries, the rest of the Krumms would not have injuries or claims. Therefore, the "each person" limit applies and limits the Krumms' total recovery under the settlement agreement to $50,000. See Gocha, 215 Wis. 2d at 593.

By the Court. — Judgment reversed.

       The plaintiffs in the action are Mark Kosieradzki, guardian ad litem for Kyle Krumm; Warren Wood, guardian ad litem for Karl Krumm and Alicia Krumm; and Joyce Krumm and Kevin Krumm, individually. Their position on appeal is uniform, and we refer to them collectively as the Krumms.
      This is an expedited appeal under Wis. Stat. Rule 809.17. All references are to the 1999-2000 version unless otherwise noted.

       Neither party argues that the policy language here is ambiguous. A policy is not rendered ambiguous simply because one party has offered a "remotely possible second interpretation." United States Fire Ins. Co. v. Ace Baking Co., 164 Wis. 2d 499, 503, 476 N.W.2d 280 (Ct. App. 1991) (citation omitted). We therefore enforce the plain language of the policy by giving it its common and ordinary meaning. See Danbeck v. American Fam. Mut. Ins. Co., 2001 WI 91, ¶ 10, 245 Wis. 2d 186, 629 N.W.2d 150.


author: PETERSON, J.

text:
    Angela Fischer, Plaintiff-Appellant, Kenneth William Lewis and Kimberly K. Dahl, minors, by Guardian ad Litem, Michael P. Wagner, Plaintiffs, State of Wisconsin Medical Assistance Program-Title 19, Involuntary-Plaintiff, v. Wisconsin Patients Compensation Fund, Thomas V. Rankin, M.D., and the Medical Protective Company, Defendants-Respondents
    Court of Appeals

      No. 02-0029.

      Submitted on briefs June 10, 2002.

    Decided June 25, 2002.

    2002 WI App 192
    (Also reported in 650 N.W.2d 75.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Timothy J. Aiken and James C. Gallanis oí Aiken & Scoptur, S.C., Milwaukee.
    On behalf of the defendant-respondent, Wisconsin Patients Compensation Fund, the cause was submitted on the brief of Mark E. Larson of Gutglass, Erickson, Bonville, Seibel & Falkner, S.C., Milwaukee.
    On behalf of the defendants-respondents, Thomas V Rankin, M.D. and The Medical Protective Company, the cause was submitted on the brief of Howard G. McMa

      hon and William R. Wick of Nash, Spindler, Grimstad & McCracken LLP, Manitowoc.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   PETERSON, J.

¶ 1. Angela Fischer appeals a judgment, entered upon a jury's verdict, dismissing her claims against Dr. Thomas Rankin and his insurers. Fischer alleged that Rankin failed to properly obtain Fischer's informed consent prior to performing surgery on her back. Fischer argues that the trial court erred by including a special verdict question inquiring whether Rankin's failure to disclose necessary information about the surgery was a cause of Fischer's injury. In the alternative, Fischer argues that the trial court erred by refusing to change the jury's answer from "No" to "Yes" because there was no credible evidence to sustain the verdict. We disagree and affirm the judgment.

BACKGROUND

¶ 2. Rankin performed a multi-level fusion on Fischer's back to relieve severe pain in her shoulder and arm. Fischer alleged that Rankin failed to properly obtain Fischer's informed consent before performing the surgery because Rankin failed to inform her of other reasonable alternative surgical and medical methods available. She complained that undergoing the surgery caused her injury because the surgery left a scar, she incurred medical expenses and has a reduced range of motion in her neck.

¶ 3. At trial, Dr. George Cybulski testified as Rankin's expert witness. He stated that Rankin should have provided Fischer the option of a single-level fusion as opposed to a multi-level fusion. However, Cybulski explained that neither surgery would have resolved Fischer's symptoms because "the likely situation with Ms. Fischer's C6 nerve root is that she had compression of her nerve root for such a long time that it is permanently damaged; therefore, no amount of surgery would relieve that condition." Cybulski also stated that this information could not have been discovered before surgery.

¶ 4. The case was submitted to the jury. The jury found that Rankin failed to obtain Fischer's informed consent and that a reasonable person, if properly informed, would have refused to consent to the operation. However, the jury found that Rankin's failure to disclose necessary information about the surgery was not a cause of Fischer's injuries.

¶ 5. Fischer filed a motion after verdict seeking to strike the jury's answer to Question 5 because it was unnecessary or, alternatively, to change the answer to Question 5 from "No" to 'Tes." The trial court denied the motion.

DISCUSSION

I. Cause Question

¶ 6. Fischer argues that the trial court erred by including a special verdict question inquiring whether Rankin's failure to disclose necessary information about the surgery was a cause of Fischer's injury. Fischer contends that a cause question is not needed in an informed consent case that involves "an invasion of the body."

¶ 7. "A special verdict must cover material issues of ultimate fact. . . . The form of a special verdict is discretionary with the trial court and this court will not interfere as long as all material issues of fact are covered by appropriate questions." Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 445-46, 280 N.W.2d 156 (1979).

¶ 8. The suggested special verdict for medical informed consent requires the plaintiff to establish that: (1) the patient was not told of risks and alternatives; (2) the patient would have chosen an alternative if he or she had been adequately informed; and (3) the failure to disclose information was a cause of the patient's injuries. See Wis JI — Civil 1023.1. The framework for the special verdict is based on Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995). Prior to Martin, there was no cause question for informed consent cases.

¶ 9. In Martin, the plaintiff ran into the back of a truck while riding her bicycle. She was taken to a hospital with head injuries. The doctor failed to inform the plaintiffs father that a CT scanner was available to diagnose the extent of his daughter's head injuries. Further, the doctor failed to inform the father that if his daughter developed intra-cranial bleeding, there would be a significant delay in the ability to treat her because the hospital did not have a neurosurgeon. Id. at 162.

¶ 10. The supreme court addressed whether the jury was required to determine if Richards's negligence in failing to obtain informed consent was a cause of Martin's injuries:

Having answered in the affirmative the question of whether Mr. Martin would have agreed to the alternate forms of care and treatment had he been informed of their availability, the jury must then be asked, in effect, whether the alternate forms of care and treatment would have made a difference, i.e., whether the same or similar injuries would have resulted even if the injured party availed himself or herself of the alternate treatment.

Id. at 182. The court noted that cause was an essential question, although the parties had waived it in that case. Id. at 183.

¶ 11. Fischer argues that Martin does not apply to cases involving "affirmative violations of bodily integrity." Id. at 175. We disagree. Martin did not limit application of a cause question to cases where the omission was a failure to advise a patient of alternative diagnostic options. The reasoning in Martin is equally appropriate under the present circumstances where Rankin failed to advise of an alternate surgery. As stated in Martin, a physician is required to "disclose information necessary for a reasonable person to make an intelligent decision with respect to the choices of treatment or diagnosis." Id. at 175. This would include alternative surgeries.

¶ 12. The options in the present case were not simply surgery or no surgery. Fischer had a right to accept an alternative surgical procedure as a treatment option. However, Cybulski testified that both options would have achieved the same result. Therefore, it was necessary for the jury to assess whether Rankin's failure to disclose the single-level fusion caused Fischer's injury.

¶ 13. Fischer argues that cases since Martin do not require a separate cause question. Fischer relies on Johnson v. Kokemoor, 199 Wis. 2d 615, 545 N.W.2d 495 (1996), and Schreiber v. Physicians Ins. Co., 223 Wis. 2d 417, 588 N.W.2d 26 (1999).

¶ 14. In Johnson, a cause question was not at issue in the case and therefore was not addressed by the supreme court. Rather, the court considered whether a doctor had sufficient experience with a difficult aneurysm surgery and whether his lack of experience with that type of surgery should have been communicated to the patient. Johnson, 199 Wis. 2d at 623. The court stated that the plaintiff "introduced ample evidence that had a reasonable person in her position been aware of the defendant's relative lack of experience in performing basilar bifurcation aneurysm surgery, that person would not have undergone surgery with him." Id. at 641.

¶ 15. Johnson dealt with a situation that was an all or nothing proposition. The issue was not between two alternative forms of treatment, but rather whether a reasonable person would have undergone the surgery at all with this particular surgeon. Id.

¶ 16. Similarly, in Schreiber, a cause question was not at issue. There, the plaintiff had previously delivered two children by cesarean section but elected a vaginal birth for her third child. During labor, she told her doctor that she had changed her mind and wanted a cesarean section. He did not grant her request, and the baby was born a spastic quadriplegic. The parties stipulated that an earlier cesarean delivery would have resulted in the baby being normal. Schreiber, 223 Wis. 2d at 423.

¶ 17. The supreme court held that a substantial change in circumstances, be it medical or legal, requires a new informed consent discussion. Id. at 437. The court rejected the notion that the onset of a medical procedure forecloses a patient's right to withdraw consent. Id. When consent is withdrawn, the physician is obligated to conduct a new informed consent discussion with the patient. Id. The court affirmed a subjective standard:

In this type of informed consent case where the issue is not whether she was given the pertinent information so that her choice was informed, but rather whether she was given an opportunity to make a choice after having all of the pertinent information, the cause question is transformed into, 'What did the patient himself or herself want?"

Id. at 436. Because causation was stipulated, whether there was a casual link between the plaintiffs claims based on the lack of informed consent and her injuries was never addressed.

¶ 18. We conclude that the trial court properly exercised its discretion by including a special verdict question inquiring whether Rankin's failure to disclose necessary information was a cause of Fischer's injury.

II. Sufficiency of the Evidence

¶ 19. Fischer argues .that the trial court erred by not changing the jury's answer to Question 5 on the special verdict from "No" to "Yes." Fischer contends there was no credible evidence to sustain the verdict. She again argues that, in informed consent cases, causation is established as a matter of law if the jury finds that there was a failure to obtain informed consent and a reasonable person would have declined the surgery.

¶ 20. In considering a motion to change the jury's answer, a trial court must view the evidence in the light most favorable to the verdict and sustain the verdict if it is supported by any credible evidence. Nelson v. Travelers Ins. Co., 80 Wis. 2d 272, 282-83, 259 N.W.2d 48 (1977). The court is not justified in changing the jury's answers if there is any credible evidence to support the verdict. Bennett v. Larsen Co., 118 Wis. 2d 681, 705-06, 348 N.W.2d 540 (1984). The court is guided by the proposition that "[t]he credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment, and where more than one inference can be drawn from the evidence," the court must accept the inference drawn by the jury. Id. at 706. We are guided by these same rules. Nelson, 80 Wis. 2d at 282.

¶ 21. The standard of review in this case is even more stringent because the trial court approved the jury's verdict. We afford special deference to a jury determination when the court approves the jury's findings. Kuklinski v. Rodriguez, 203 Wis. 2d 324, 331, 552 N.W.2d 869 (Ct. App. 1996). We will not overturn the jury's verdict unless "there is such a complete failure of proof that the verdict must be based on speculation." Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979).

¶ 22. Here, Cybulski testified that neither the single-level fusion surgery nor the multi-level fusion surgery would have resolved Fischer's symptoms because the nerve was permanently damaged. In other words, both surgeries would have produced the same result. Cybulski also testified that this information could not be discovered before surgery. Therefore, based on this testimony, it was reasonable for the jury to conclude that Rankin's failure to disclose necessary information about the surgery was not a cause of Fischer's injury.

By the Court. — Judgment affirmed.

       Fischer has not filed a reply brief refuting Rankin's arguments. An argument asserted by a respondent on appeal and not disputed by the appellant in the reply brief is taken as admitted. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994).

       Cybulski's testimony was his videotaped deposition.

       The jury verdict included the following series of questions and answers:
      3. Answer Question 3 regardless of your answers to the previous questions: Was the defendant, Thomas V. Rankin, M.D., negligent in failing to properly obtain informed consent from Angela Fischer?
      ANSWER: Yes
      4. If you have answered Question 3 "Yes', then answer this question: If properly informed, would a reasonable person in Angela Fischer's position have refused to consent to the operation?
      ANSWER: Yes
      5. If you have answered both Questions 3 and 4 "Yes", then answer this question: Was the failure by Dr. Rankin to disclose necessary information about the surgery a cause of injury to Angela Fischer?

        ANSWER: No

       We note that Fischer has provided this court with only a partial transcript of the underlying proceedings. "When an appeal is brought on a partial transcript, our review is necessarily confined to the record before us. Austin v. Ford Motor Co., 86 Wis. 2d 628, 641, 273 N.W.2d 233 (1979). We will assume, in the absence of a transcript, that every fact essential to sustain the trial court's decision is supported by the record. Id.


author: SNYDER, J.

text:
    Village of Slinger, Plaintiff, Dr. Kent Schaefer and Mary Schaefer, Plaintiffs-Appellants, v. City of Hartford, Defendant-Respondent, Town of Hartford, Defendant. [Case No. 01-3016.] Village of Slinger, Dr. Kent Schaefer and Mary Schaefer, Plaintiffs, v. City of Hartford, Defendant-Respondent, Town of Hartford, Defendant-Appellant. [Case No. 01-3281.]
    Court of Appeals

      Nos. 01-3016, 01-3281.

      Submitted on briefs June 13, 2002.

      Decided June 26, 2002.

    2002 WI App 187
    (Also reported in 650 N.W.2d 81.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs oí Michael A.I. Whitcomb, S.C. of Milwaukee. On behalf of the defendant-appellant, the cause was submitted, on the briefs of H. Stanley Riffle and Julie A. Aquavia of Arenz, Molter, Macy & Riffle, S.C. of Waukesha.
    On behalf of the defendant-respondent, the cause was submitted on the brief of John A. St. Peter of Edgarton, St. Peter, Petak, Massey & Bullón of Fond du Lac.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Dr. Kent and Mary Schaefer (the Schaefers) appeal from a summary judgment dismissing their claims against the City of Hartford (City) for lack of standing. The Schaefers argue that they have a legally protectible interest in the rezoning of adjoining property that impairs the quality of residential life and in protecting the Town of Hartford's (Town) right to test the validity of the City's annexation proceedings. We conclude that the Schaefers lack standing to bring this action.

¶ 2. The Town also appeals from an order dismissing its action against the City for failure to comply with notice of claim requirements. We conclude that the Town's subsequent litigation has rendered this issue moot. We therefore affirm the judgment and the order of the circuit court.

FACTS

¶ 3. On December 4, 2000, the City adopted an ordinance annexing 67.7 acres from the Town. The ordinance was the result of a petition for direct annexation by Rubicon Associates, LLC, which proposed high-density residential and multi-family residential development for the area. No electors reside in the annexation area. The ordinance rezoned the annexation area for residential use. The Schaefers own 75.4 acres of land in the Town that abut the entire length of the northern border of the annexation area.

¶ 4. Prior to the adoption of the ordinance, on November 23,1999, the City and the Town entered into an intergovernmental agreement (Agreement). The Agreement provided, in relevant part:

The Town will not challenge any annexation that is in accordance with the terms of this Agreement. Nor will the Town judicially oppose any annexations that are consistent with the terms of this Agreement. The Town also agrees not to foster any private challenges to any annexations that are consistent with the terms of this Agreement, nor financially support anyone who opposes or contests any such annexation. If the Town is impleded [sic] in an annexation lawsuit by a party other than the City, the Town will immediately stipulate that it does not oppose the contested annexation. The Town will also cooperate with the City on the dismissal of the Town as a party to the relevant lawsuit.

The Agreement runs from January 1, 2000, through December 31, 2020.

¶ 5. This declaratory judgment action was filed by the Schaefers and the Village of Slinger against the City and the Town on February 23, 2001; the Schaefers and the Village sought judgment declaring both the City annexation ordinance and the Agreement void. The Town then cross-claimed against the City, asking the circuit court to declare the Agreement void.

¶ 6. The City and the Schaefers filed cross-motions for summary judgment. On October 17, 2001, the circuit court granted the City summary judgment against the Schaefers and dismissed the claim for lack of standing. The circuit court also dismissed the Village's claim against the City challenging the Agreement but allowed its challenge of the annexation ordinance under the "Rule of Reason." Additionally, the circuit court dismissed without prejudice the Town's cross-claim against the City for the Town's failure to comply with the notice of claim requirements of Wis. Stat. § 893.80 (1999-2000).

DISCUSSION

¶ 7. The Schaefers argue that the circuit court erroneously dismissed this action for lack of standing. The Schaefers claim they have a legally protectible interest in the rezoning of adjoining property that impairs the quality of residential life. The Schaefers also argue that they have a legally protectible interest in asserting and protecting the Town's right to test the validity of the City's annexation proceedings.

¶ 8. Whether a party has standing to seek declaratory relief is a question of law we review de novo. Town of Eagle v. Christensen, 191 Wis. 2d 301, 315, 529 N.W.2d 245 (Ct. App. 1995). Despite this de novo review, we agree with the circuit court's reasoning in concluding that the Schaefers lack standing to bring this action for declaratory relief.

¶ 9. In order to maintain a declaratory judgment action under Wis. Stat. § 806.04, a justiciable controversy must exist, that is:

(1)A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy — that is to say, a legally protectible interest.
(4) The issue involved in the controversy must be ripe for judicial determination.

City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 228, 332 N.W.2d 782 (1983) (citation omitted). It is the third element of justiciability at issue in this case; the legal interest requirement has often been expressed in terms of standing. Id. In order to have standing to sue, a party must have a personal stake in the outcome, id., and must be directly affected by the issues in controversy, Ramme v. City of Madison, 37 Wis. 2d 102, 116, 154 N.W.2d 296 (1967). The taxpayer must have sustained, or will sustain, some pecuniary loss before he or she has standing. Kaiser v. City of Mauston, 99 Wis. 2d 345, 360, 299 N.W.2d 259 (Ct. App. 1980), overruled on other grounds hy DNR v. City of Waukesha, 184 Wis. 2d 178, 515 N.W.2d 888 (1994).

¶ 10. A taxpayer does not have standing to challenge an ordinance merely because he or she disagrees with the legislative body. Id. A declaratory judgment will not determine hypothetical or future rights. City of Janesville v. Rock County, 107 Wis. 2d 187, 199, 319 N.W.2d 891 (Ct. App. 1982).

¶ 11. It has been held that a taxpayer can invoke equity to enforce the right of a public corporation where there is a danger of substantial injury that will affect the taxpayer to some extent. Vill. of Brown Deer v. City of Milwaukee, 274 Wis. 50, 68, 79 N.W.2d 340 (1956). The Village of Brown Deer court held that a taxpayer may successfully invoke a court's equity jurisdiction by alleging the danger that the municipality will suffer substantial injury that will to some extent affect the taxpayer. Id. In Kaiser, a taxpayer was held to have standing based upon allegations that the city had illegally spent funds and said expenditures injured the taxpayer. Kaiser, 99 Wis. 2d at 360-61.

¶ 12. Nowhere in the complaint do the Schaefers allege that they have sustained or will sustain some pecuniary loss because of the annexation or that the annexation poses a substantial injury to their interests. There is nothing in the record upon which to base an inference that the Schaefers would be adversely affected by the annexation. The law requires at least an allegation of pecuniary loss or injury. Id. at 360. The Schaefers have alleged neither.

¶ 13. When the legislature created the annexation statute of Wis. Stat. § 66.0233, it chose only to establish a town's right to challenge an annexation ordinance, not to extend that same right to adjoining property owners. Prior to the enactment of the annexation statute in 1933, neither a town in which the annexed territory was located, nor its citizens, other than those t residing or owning property within the limits of the territory being annexed, had a legal interest in the annexation. Town of Madison v. City of Madison, 269 Wis. 609, 614, 70 N.W.2d 249 (1955); see also Town of Kronenwetter v. Knoedler, 177 Wis. 74, 76, 187 N.W. 688 (1922) (the only persons interested in annexation were residents and taxpayers of annexing village, petitioners for annexation and owners of land in the annexed territory). Until that point, the law essentially excluded any individuals other than those residing within the annexed township from objecting; indeed, the law even prohibited townships whose territory was being annexed from being heard. See Town of Madison, 269 Wis. at 614. The current statute expressly recognizes the Town's ability to be heard.

In a proceeding in which territory may be attached to or detached from a town, the town is an interested party, and the town board may institute, maintain or defend an action brought to test the validity of the proceedings, and may intervene or be impleaded in the action.

¶ 14. The legislature is presumed to know the status of existing law, State v. Frankwick, 229 Wis. 2d 406, 412, 599 N.W.2d 893 (Ct. App. 1999), and to have chosen its words carefully, Ball v. District No. 4, Area Board of Vocational, Technical & Adult Education, 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984). We must assume that if the legislature had intended to expand that right to individuals such as the Schaefers, who do not even live in any of the territories affected, it would have so provided in the legislation. It did not.

¶ 15. Statutes authorizing attack upon annexations by private persons are usually interpreted as to préclude attack on annexations by persons having only remote interests; consequently, persons not residing in the area being annexed are generally denied standing to protest the annexation. 1 Chester James Antieau, Municipal Corporation Law § 1A.31 (1996).

¶ 16. From the tenor of the record as a whole, the heart of the Schaefers' argument is that the proposed development within the annexation territory may affect the value and use of their property. In essence, the Schaefers' complaint is with the development, not the annexation, of their neighbor's property.

¶ 17. While adjoining landowners are affected by a neighbor's land use, land use is in no way dependent upon annexation. The Schaefers assert that they have an interest in protecting their estate from the development of adjoining property that would diminish the value of that estate, the quality of their life and the community in which it is situated. The Schaefers have not cited any authority that allows a neighbor to oppose the development of adjoining property simply because it will affect property values. As the circuit court noted, the Schaefers can advance this argument in a public zoning hearing but they have no rights in the adjoining property that are affected by the annexation itself.

¶ 18. Nor do the Schaefers have any standing whatsoever with respect to the Agreement. The Agreement between the City and the Town is a matter dealt with in contract law. The general rule in contract law is that only a party to a contract may enforce or challenge it. See Sussex Tool & Supply, Inc. v. Mainline Sewer and Water, Inc., 231 Wis. 2d 404, 409, 605 N.W.2d 620 (Ct. App. 1999). The exception to this rule is when a contract is made for the benefit of a third party. Id. No argument has been raised that the Schaefers are a third-party beneficiary to this Agreement.

¶ 19. The Town argues that the circuit court erroneously dismissed its action for lack of compliance with notice of claim requirements; the Town claims that the notice of claim provisions of Wis. Stat. § 893.80 do not apply to this action. We conclude that this issue has been mooted by subsequent litigation and we need not address it.

¶ 20. After the Town's cross-claim was dismissed by the circuit court in this action, the Town filed its notice of claim and then filed a separate lawsuit against the City. In this subsequent lawsuit, the Town challenged the validity of the Agreement. Ultimately the circuit court in that action agreed with the Town and declared the Agreement void as a matter of law.

¶ 21. We have examined the cross-claim filed by the Town in this action to determine whether this subsequent litigation has rendered this appellate issue moot. We conclude that the cross-claim is targeted exclusively and entirely at the Agreement and makes no allegations concerning the legality or validity of the annexation. The subsequent litigation declaring the Agreement void has mooted this issue.

CONCLUSION

¶ 22. The Schaefers lack standing to bring this declaratory judgment action because they have not alleged that the annexation will cause them injury or pecuniary loss. In addition, the Town's subsequent litigation has rendered its appellate issue moot. We therefore affirm the judgment and the order of the circuit court.

By the Court. — Judgment and order affirmed.

       The Village did not appeal the dismissal of its challenge to the Agreement and is therefore not a party to this appeal.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       WISCONSIN Stat. § 66.0233, previously Wis. Stat. § 66.029 (1997-98), states:


author: ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Edward W. Johnson, Jr., Defendant-Appellant.
    Court of Appeals

      No. 01-0382-CR.

      Submitted on briefs December 7, 2001.

      Decided June 27, 2002.

    2002 WI App 166
    (Also reported in 649 N.W.2d 284.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert T. Ruth of Ruth Law Office of Madison.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sandra L. Nowack, assistant attorney general.
    Before Roggensack, Deininger and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. Edward Johnson contends that the circuit court's order requiring him to pay restitution pursuant to Wis. Stat. § 973.20 (1997-98) should be reversed on several grounds and that the court erred in refusing to permit the discovery he requested. We conclude that the circuit court's restitution order should not be vacated as untimely because there was a valid reason for holding the restitution proceedings outside of the statutory time period and because there was no prejudice to Johnson. We further conclude that the circuit court had authority under § 973.20 to require Johnson to reimburse the victim's stepfather for the expenses he incurred installing a home security system, but not for his lost wages.. Finally, we conclude that the circuit court properly denied Johnson's request for discovery of the victim's counseling records. Accordingly, the order of the circuit court is affirmed in part and reversed in part.

BACKGROUND

¶ 2. On October 13, 1998, Johnson was convicted of one count of false imprisonment and one count of disorderly conduct. Johnson, who was seventeen years old when the criminal conduct occurred, participated in forcing two younger girls into a car, refusing to release them and, over the course of several hours, harassing and mistreating the girls. One of the victims, J.M.K., lived only five or six houses from Johnson's parents' house.

¶ 3. At the sentencing hearing, in an effort to avoid a jail term, both Johnson and his counsel expressly assented to paying "the expenses that have been incurred thus far" as restitution. At that time, J.M.K.'s stepfather, WL., had completed a restitution form that claimed the following expenses incurred through July 10, 1998: two days missed work for W.L. ($277.50), J.M.K.'s damaged clothing ($64.96), three trips to Jefferson ($38.40), a security system ($1,005) and ongoing counseling (then estimated at $690), for a total to that date of $2,075.86.

¶ 4. Ultimately, the court sentenced Johnson to twelve months in jail on the false imprisonment conviction and three years of probation for the disorderly conduct conviction. The court ordered restitution as a condition of probation, but because victim expenses were ongoing, the court directed the Department of Corrections (DOC) to compute the final amount of restitution and to identify to whom the money should be paid, at a later date. The court provided that Johnson would have the right to return to court for a hearing on restitution when the final figures were known.

¶ 5. DOC filed a request for a restitution hearing on May 15, 2000. The hearing was held on September 21, 2000. The primary issues were: (1) whether the request for restitution was timely under Wis. Stat. § 973.20(13)(c)l and (2) whether the circuit court had authority under § 973.20 to order restitution for certain losses incurred and expenses paid by J.M.K.'s stepfather.

¶ 6. The court's final restitution order required Johnson to pay a total of $1,816.96 to J.M.K.'s mother and stepfather, on behalf of J.M.K. The specific items included in the restitution order were: (1) clothing ($64.96); (2) mileage for traveling to four court appearances ($52); (3) counseling and medication co-payments ($140); (4) a home security system ($1,005); and (5) J.M.K.'s stepfather's lost wages due to attending court proceedings on four days ($555). Johnson appeals.

DISCUSSION

Standard of Review.

¶ 7. The scope of a circuit court's authority to order particular conditions of probation, including restitution, presents a question of statutory interpretation that we review de novo. State v. Baker, 2001 WI App 100, ¶ 4, 243 Wis. 2d 77, 626 N.W.2d 862. Circuit courts have discretion in deciding on the amount of restitution and in determining whether the defendant's criminal activity was a substantial factor in causing any expenses for which restitution is claimed. State v. Canady, 2000 WI App 87, ¶¶ 6, 12, 234 Wis. 2d 261, 610 N.W.2d 147; State v. Behnke, 203 Wis. 2d 43, 57-58, 553 N.W.2d 265, 272 (Ct. App. 1996). When we review a circuit court's exercise of discretion, we examine the record to determine whether the circuit court logically interpreted the facts, applied the proper legal standard and used a demonstrated, rational process to reach a conclusion that a reasonable judge could reach. Crawford County v. Masel, 2000 WI App 172, ¶ 5, 238 Wis. 2d 380, 617 N.W.2d 188.

Timeliness.

¶ 8. When a circuit court orders restitution but does not determine the amount of restitution at sentencing, Wis. Stat. § 973.20(13)(c) sets forth a list of procedures that the court may use to finalize the amount due. See State v. Evans, 2000 WI App 178, ¶ 14, 238 Wis. 2d 411, 617 N.W.2d 220. Each of the options set forth in § 973.20(13)(c) includes a time frame for finalizing the restitution order. However, we have previously held that the time expectations found in § 973.20(13)(c) are directory, not mandatory. State v. Perry, 181 Wis. 2d 43, 56-57, 510 N.W.2d 722, 726-27 (Ct. App. 1993). Accordingly, restitution orders from proceedings held outside of the statutory time period for valid reasons may be upheld, provided that doing so will not result in prejudice to the defendant. Id.

¶ 9. In this case, Johnson contends that the circuit court's initial restitution order was made pursuant to Wis. Stat. § 973.20(13)(c)l and therefore, DOC was required to file a proposed final order with the court within ninety days of the November 17, 1998 sentencing hearing. Because the proposed order was not filed until May 15, 2000, Johnson asserts that the restitution order should be vacated. The State makes no attempt to argue that the restitution proceedings were timely under § 973.20(13)(c), but instead it argues that circumstances present in this case show that the order should not be vacated. We agree with the State.

¶ 10. In regard to whether there is a valid reason for the delay, we conclude that there is. First, Johnson agreed at sentencing that restitution was appropriate, and his counsel expressly acquiesced in the circuit court's decision to postpone a final decision on restitution because expenses were still accumulating. Second, while Johnson complains that a proposed final order had not been submitted even ninety days after J.M.K. submitted her "final" claims for counseling and medication costs, he ignores the fact that J.M.K. was only one of the victims that the circuit court was asked to consider for purposes of restitution. The original sentencing hearing encompassed consolidated cases, and the May 15th hearing request included proposed restitution orders for J.M.K. and for the victim in the consolidated case. Significantly, DOC's request stated that the victim in the consolidated case "continues in counseling and has ongoing medication costs as a result of the offense." Third, Johnson never raised a timeliness objection to the manner in which the probation agent collected information and arranged for a final hearing until he raised the issue by an oral motion on the day of the restitution hearing. In light of the factors that a sentencing court must consider when ordering restitution, see Wis. Stat. § 973.20(13)(a), we conclude that it was not reversible error to delay restitution proceedings when the victim in a consolidated case was still accumulating compensable costs. See Perry, 181 Wis. 2d at 56-57, 510 N.W.2d at 726-27 (concluding that the circuit court had a valid reason for delaying restitution proceedings when it waited for the conclusion of a co-defendant's trial; proceeding in that fashion allowed the court to consider the defendants' restitution obligations in a consolidated fashion).

¶ 11. On the issue of prejudice, Johnson argues that due to his limited ability to pay, the delay in finalizing his restitution obligation caused him to be behind in his payments and therefore, he will be hard-pressed to fulfill his restitution obligation before the expiration of his probation. He further argues that the circuit court expressly recognized that his limited ability to pay would require that he pay over the entire course of his probation period. We are not persuaded that Johnson was prejudiced by the delay.

¶ 12. First, Johnson's ability to pay was not raised in the circuit court. At the restitution hearing, Johnson's attorney stated, "We have not challenged and. I do not intend to challenge the question of ability to pay during the period of probation." Consistent with that statement, Johnson presented no testimony concerning his ability to pay. Accordingly, he has waived this issue. See State v. Schmaling, 198 Wis. 2d 756, 762, 543 N.W.2d 555, 558 (Ct. App. 1995).

¶ 13. Second, we disagree with Johnson's characterization of the circuit court's statements regarding ability to pay. The final amount of restitution ordered was less than the amount the circuit court was contemplating at sentencing. In particular, the circuit court assumed at the time of sentencing that Johnson would be liable for the portion of the victims' medical expenses that were covered by insurance. The court stated that it anticipated that these amounts would run into the "thousands of dollars." As it turns out, the insurers never appeared to collect any amounts they paid, and the bulk of the items included in the final restitution order for J.M.K. were items that J.M.K.'s stepfather had listed on the original victim restitution form that had been filled out prior to the 1998 sentencing hearing. Given the total amount of restitution ultimately ordered by the court and considering the time that remained on Johnson's term of probation after the May 15th proposed order was submitted, we are not persuaded that the delay in the restitution proceedings prejudiced Johnson's ability to pay.

¶ 14. Because there was a valid reason for exceeding the statutory time period set forth in Wis. Stat. § 973.20(13)(c) and because no prejudice resulted from the delay in the restitution proceedings, we conclude that the circuit court's restitution order should not be vacated as untimely. We further conclude that requiring Johnson to comply with the terms of the order will further the primary purpose of § 973.20, which is to facilitate providing complete restitution for the victim of a crime. See State v. Krohn, 2002 WI App 96, ¶¶ 11, 13, 252 Wis. 2d 757, 643 N.W.2d 874; Canady, 2000 WT App 87 at ¶ 8.

Restitution to a Child Victim's Stepparent.

¶ 15. Johnson challenges the circuit court's authority to order him to pay restitution to J.M.K.'s family for (1) the amount J.M.K.'s stepfather paid for a home security system and (2) J.M.K.'s stepfather's wages that were lost due to the time spent attending court proceedings with J.M.K. According to Johnson, a stepparent is not a victim within the meaning of Wis. Stat. § 973.20, and the challenged items are not otherwise compensable under § 973.20.

Wisconsin Stat. § 973.20(lr) directs, in relevant part:

When imposing sentence or ordering probation for any crime for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing. . . unless the court finds substantial reason not to do so and states the reason on the record. Restitution ordered under this section is a condition of probation, extended supervision or parole served by the defendant for a crime for which the defendant was convicted.

¶ 16. We have held that Wis. Stat. § 973.20(lr) creates a presumption that restitution will be ordered in criminal cases and that the restitution statute should be interpreted broadly to allow victims of crime to recover their losses. Canady, 2000 WI App 87 at ¶¶ 7-8. The circuit court's authority to order restitution extends to certain types of lost income and reasonable out-of-pocket expenses resulting from cooperating in the investigation and prosecution of the crime, as well as to "all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing." Section 973.20(5). Additionally, before a circuit court orders restitution, there must be a showing that the defendant's criminal activity was a substantial factor in causing the claimed losses. Canady, 2000 WI App 87 at ¶ 9.

¶ 17. The restitution statute does not define the term "victim." However, in a case decided after the briefing in this case was completed, we held that " 'victim' in Wis. Stat. § 973.20(lr) is most reasonably interpreted using the definition in Wis. Stat. § 950.02(4)(a)," which is a related statute. State v. Gribble, 2001 WI App 227, ¶¶ 70-71, 248 Wis. 2d 409, 636 N.W.2d 488. When the person against whom a crime was committed is a child, § 950.02(4)(a)2 provides that "victim" also includes a "parent, guardian or legal custodian of the child."

¶ 18. Perhaps anticipating the result reached in Gribble where expenses incurred by an aunt of the victim were held not recoverable as restitution, Johnson argues that J.M.K.'s stepfather is not included among the family members who are considered victims under Wis. Stat. § 950.02(4)(a)2 because he is not a natural parent, a guardian or a legal custodian of J.M.K. The State contends that we should interpret Wis. Stat. § 973.20(lr) broadly enough to include a stepparent as a victim.

¶ 19. It is uncontested that W.L. is not the guardian or legal custodian of J.M.K. However, "parent" is not defined in ch. 950. Therefore, it could be interpreted to include both a natural parent and a stepparent. In attempting to determine legislative intent, we note that in other sections of the statutes in which the legislature meant to include a stepparent as it described those who have a relationship to a child, it clearly did so by listing both parents and stepparents. See, e.g., Wis. Stat. § 767.245(1) (relating to those persons who may petition for visitation rights with a child); Wis. Stat. § 48.02(15) (listing both parents and stepparents as a child's "relatives"); Wis. Stat. § 880.155 (addressing visitation by a grandparent or stepparent); Wis. Stat. § 948.01(3) (defining persons responsible for a child's welfare). We have identified no occasions where the legislature has indicated directly or indirectly that it meant "parent" to include both natural parents and stepparents. Therefore, we conclude that the legislature did not intend to include both natural parents and stepparents within the class of persons identified as a "parent" in Wis. Stat. § 950.02(4)(a)2. Accordingly, we conclude that W.L. is not entitled to be paid restitution as a "victim" because of § 950.02(4)(a)2.

¶ 20. However, that does not end our inquiry because Wis. Stat. § 973.20(5)(d) also permits a circuit court to order restitution that reimburses an "other person" who has compensated a victim for a loss. Johnson does not contest that W.L. may qualify for restitution as an "other person" under § 973.20(5)(d). Instead, he contends that because J.M.K.'s stepfather paid for the security system without trying to collect its cost from J.M.K. or her mother, he has not "compensated a victim for a loss" within the meaning of § 973.20(5)(d). We are not persuaded by Johnson's argument.

¶ 21. At the restitution hearing, J.M.K.'s stepfather testified that he purchased the home security system shortly after Johnson's mistreatment of J.M.K. to help her feel more secure. J.M.K. testified that Johnson was still coming around the neighborhood after the incident, even though he no longer lived with his parents. She also testified that she continued to be afraid of Johnson and that she feared that he might harm her at some point in the future. Additionally, Johnson had threatened that he would "get even" with J.M.K. if she ever told anyone about the incident. From this testimony, the circuit court reasonably could have inferred that J.M.K. had lost her sense of security within her home due to Johnson's criminal acts. Accordingly, we conclude that there was sufficient testimony to establish a causal connection between Johnson's criminal conduct and the need for the security system that WL. purchased to try to restore J.M.K.'s lost sense of security. Therefore, we conclude that the circuit court acted within its discretion in characterizing the cost of the security system as an item of J.M.K.'s special damages in this case, and we further conclude that W.L. compensated J.M.K. by paying for the system. See Behnke, 203 Wis. 2d at 60-61, 553 N.W.2d at 273 (upholding circuit court's restitution order under Wis. Stat. § 973.20 (1993-94) for a new dead bolt lock for the victim's residence because "any specific expenditure by the victim paid out because of the crime" is a "special damage"; defendant had imprisoned, battered and sexually assaulted the victim in a place other than the victim's residence, but defendant knew where the victim lived).

¶ 22. However, Johnson's contest over the $555 that WL. lost in wages for the days he took off from work to accompany J.M.K. to court appearances stands on different footing than does the security system due to the statutory provisions that specifically identify who may collect lost wages as restitution. Wisconsin Stat. § 973.20(5)(b) allows a "person against whom a crime . . . was committed" to recover such lost wages as restitution. WL. is not such a person, and there is no comparable provision that applies to a child-victim's stepparent. Further, because J.M.K.'s stepfather's lost wages were his own, we agree with Johnson that J.M.K.'s stepfather has not compensated any victim for those lost wages within the meaning of § 973.20(5)(d).

¶ 23. The circuit court held that WL.'s lost wages were tantamount to a victim's lost wages or property due to the operation of Wisconsin's marital property laws. The State mentions, but does not develop this argument on appeal. Additionally, because there is no language in the restitution statute or in Wis. Stat. § 950.02(4)(a) suggesting that restitution be permitted through such an indirect route, we conclude that the restitution statute intended to limit the recovery of lost wages for attending court proceedings to the persons identified in Wis. Stat. § 973.20(5) (b).

¶ 24. The State next argues that judicial estoppel prevents Johnson from contesting the restitution order because he agreed to pay restitution for all the items initially requested by W.L. prior to July 10, 1998. The State points out that WL.'s initial request contained the same categories of expenditures as were included in the final order and that the initial request totaled $2,075.86, rather than the $1,816.96 of the final restitution order. We decline to apply judicial estoppel to Johnson's challenge to the restitution order. We note that Johnson received jail time as well as the probation he asked for when he offered to pay restitution that included those items listed on the restitution form W.L. completed. Thus, the circuit court did not completely adopt Johnson's position. See State v. Petty, 201 Wis. 2d 337, 348, 548 N.W.2d 817, 821 (1996) ("[T]he party to be estopped must have convinced the first court to adopt its position." (citation omitted)).

¶ 25. As a final argument, the State contends that even if W.L.'s wages are not recoverable under Wis. Stat. § 973.20, the circuit court could have properly-required repayment of the lost wages as a condition of probation under Wis. Stat. § 973.09(1)(a). As authority for this argument, the State cites State v. Heyn, 155 Wis. 2d 621, 456 N.W.2d 157 (1990). In Heyn, the supreme court concluded that the restitution provisions of § 973.09(1)(b) (1985-86) do not restrict the broad authority of the circuit court to condition probation on the satisfaction of any requirement which is reasonable and appropriate under § 973.09(l)(a) (1985-86).

¶ 26. While we do not dispute the State's reading of Heyn, we note that the published cases demonstrate that, depending on the posture of the case, courts have treated requests to re-characterize restitution as a reasonable and appropriate condition of probation in different ways. See, e.g., State v. Ortiz, 2001 WI App 215, ¶ 26, 247 Wis. 2d 836, 634 N.W.2d 860; State v. Beiersdorf, 208 Wis. 2d 492, 500-03, 561 N.W.2d 749, 753-54 (Ct. App. 1997). Because the record in this case is clear that the circuit court ordered Johnson to pay the lost wages as restitution and because Johnson challenged the order under the restitution statute before the circuit court, we decline the State's invitation to re-characterize the order as a reasonable and appropriate condition of probation. See Ortiz, 2001 WI App 215 at ¶ 26. Accordingly, we conclude that the circuit court erroneously exercised its discretion in requiring Johnson to repay J.M.K.'s stepfather's lost wages as restitution.

Discovery Request.

¶ 27. Johnson's final issue concerns the circuit court's denial of his request for discovery pursuant to Wis. Stat. § 973.20(14) (d), which provides that discovery is not available in restitution proceedings "except for good cause shown." We have not identified the standard of review that is applicable to this question because the parties have not done so and our resolution of the issue would be the same whether we applied de novo review or a more deferential standard.

¶ 28. Johnson requested all documentation, assessments, records, evaluations, reports and information related to all of J.M.K.'s counseling services, which she received approximately twice per month for about a year and one-half and for which services Johnson was requested to pay only $140. He also sought the names of all persons or agencies who have, at any time, evaluated, treated or counseled J.M.K. on any mental health matter irrespective of whether the treatment was related to this case. The circuit court concluded that Johnson had not met his burden of showing good cause because he had no evidence that the counseling was for anything other than the effects of the crime on J.M.K.

¶ 29. Beginning with State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and comparing it to Wis. Stat. § 973.20(14)(d), Johnson argues that it was possible that J.M.K. had a pre-existing condition and that some portion of the counseling and medication expenses may not have been sufficiently related to Johnson's criminal conduct. As an initial matter, our decision in Shiffra must be understood in the context of a sexual assault case where it was Shiffra's position that the medical records may have contained exculpatory information. The records at issue have no bearing on whether Johnson committed the crimes of which he was convicted.

¶ 30. Additionally, Wis. Stat. § 973.20(14)(d) presumes no discovery will be permitted unless the defendant shows "good cause." "Good cause" is not a defined term, but it does indicate an affirmative obligation on Johnson's part. However, Johnson took no steps to show good cause. For example, he made no effort to substantiate his speculation that the counseling sessions were excessive for the mistreatment he accorded J.M.K. Furthermore, each session cost about $115, and J.M.K. received counseling for about a year and one-half, twice per month. Johnson's speculation that the $140 he was asked to pay was excessive flies in the face of common sense, given the number of visits and the cost of each visit. Accordingly, we conclude the circuit court did not err in concluding that Johnson failed to show good cause to be provided with the discovery he sought.

CONCLUSION

¶ 31. We conclude that the circuit court's restitution order should not be vacated as untimely because there was a valid reason for holding the restitution proceedings outside of the statutory time period and because there was no prejudice to Johnson. We further conclude that the circuit court had authority under Wis. Stat. § 973.20 to require Johnson to reimburse the victim's stepfather for the expenses he incurred installing a home security system, but not for his lost wages. Finally, we conclude that the circuit court properly denied Johnson's request for discovery of the victim's counseling records. Accordingly, the order of the circuit court is affirmed in part and reversed in part.

By the Court. — Order affirmed in part and reversed in part.

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

       Wisconsin Stat. § 973.20(13)(c) provides, in relevant part:
      If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. In other cases, the court may do any of the following:
      1. Order restitution of amounts not in dispute as part of the sentence or probation order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter, and mail or deliver copies of the proposed order to the victim, district attorney, defendant and defense counsel.

       Johnson ultimately reached a settlement concerning restitution to the victim in the consolidated case. However, the settlement did not occur until after the proposed restitution orders were filed on May 15, 2000. Johnson's counsel was clear in arguing his oral motion before the circuit court that he did not challenge any delay that occurred between the May 15th request and the date of the actual restitution hearing.

       Johnson's counsel also acknowledged at the final restitution hearing that Johnson's probation officer had been requiring Johnson to make payments of $50 per month prior to that hearing.

       On appeal, Johnson does not contest the circuit court's finding that the criminal activity was a substantial factor in causing the expenditures.

       During the course of Johnson's and his companion's mistreatment of J.M.K., he locked her in the car trunk and drove' erratically, swerving and making abrupt stops, causing her to be tossed around inside the trunk. When he let her out of the trunk, he threw her shoes in a lake and ordered her to find the shoes, while hitting her with stones and gravel. J.M.K. was slapped across the face, pulled to her feet by her hair and forced to place her lips to Johnson's clothed buttocks.
      After these acts, J.M.K. suffered from flashbacks, lost sixteen pounds and withdrew from school and social activities. She was afraid to go out of the house, would not stand near windows in her own home and cried herself to sleep.

        Compare State v. Behnke, 203 Wis. 2d 43, 60-61, 553 N.W.2d 265, 273 (Ct. App. 1996), with State v. Heyn, 155 Wis. 2d 621, 456 N.W.2d 157 (1990) (affirming the circuit court's discretionary decision to require reimbursement for the cost of a home security system as a reasonable and appropriate condition of probation under Wis. Stat. § 973.09(l)(a) (1985-86)).

       Additionally, J.M.K. was questioned extensively by Johnson's counsel at a later hearing, and she explained her fear of Johnson and that all the counseling sessions focused only on the effects of his criminal conduct on her mental health.