author: ROGGENSACK, J.

text:
    Prent Corporation, Plaintiff-Respondent, v. Martek Holdings, Inc., d/b/a Mascon, a foreign corporation, Defendant-Appellant. [Case No. 98-3552] GOEX Corporation, Plaintiff-Respondent, v. Martek Holdings, Inc., d/b/a Mascon, a foreign corporation, Defendant-Appellant. [Case No. 98-3553]
    Court of Appeals

      Nos. 98-3552, 98-3553.

      Submitted on briefs April 14, 2000.

    Decided August 31, 2000.

    2000 WI App 194
    (Also reported in 618 N.W.2d 201.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Mark A. Schroeder and
      Christopher A. Davies of Consigny, Andrews, Hemming & Grant, S.C. of Janesville.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James A. Carney of Nowlan & Mouat LLP of Janesville.
    Before Eich, Roggensack and Deininger, JJ.
   ROGGENSACK, J.

¶ 1. Prent Corporation and GOEX Corporation (collectively the Buyers) contracted with Martek Holdings, Inc. (d/b/a MASCON) to provide customized software systems. When MASCON failed to provide operational systems, the Buyers sued. After a trial to the court, they were awarded damages for breach of contract and negligent misrepresentation. Because we conclude that the findings and conclusions of the circuit court fully support the Buyers' breach of contract claims, we affirm those portions of the judgments. However, because we also conclude that the economic loss doctrine precludes the Buyers' claims for negligent misrepresentation, we reverse the circuit court as to those claims.

BACKGROUND

¶ 2. In December of 1995, the Buyers contracted with MASCON, a Delaware corporation, for the provision of customized software programs to use for manufacturing management. In addition to describing the features, or modules, of the software MASCON would provide, the contracts also allocated certain risks, made an express warranty, disavowed all implied warranties and limited the remedies and the damages available to the Buyers. Prent agreed to pay $104,240 for the package of software and training, and GOEX agreed to pay $48,498 for a similar package. The contracts stated that they were governed by the laws of the State of Delaware.

¶ 3. It is undisputed that there were difficulties with the operation of the software systems from the beginning. MASCON repeatedly tried to make the systems function. However, after thirteen months of MASCON's efforts, the Buyers gave thirty-day notice that MASCON must get the systems up and running correctly or they would consider MASCON in breach of the contracts and proceed accordingly.

¶ 4. When that thirty-day deadline was reached and the software still did not perform as had been represented, the Buyers sued to recover their losses. They sued MLASCON under six theories: breach of contract, breach of express warranty, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, intentional misrepresentation and negligent misrepresentation. On MASCON's motion for summary judgment, the circuit court dismissed the claims for breach of both implied warranties.

¶ 5. The remaining four claims were tried to the court. At the conclusion of trial, the circuit court also dismissed the breach of express warranty claim based on a failure of proof because MASCON had continued to try to fix the software until the Buyers refused its efforts. It also dismissed the claim for intentional misrepresentation because it concluded that the Buyers had not proven the element of intent. The circuit court's dismissal of those four claims has not been appealed.

¶ 6. The circuit court also concluded that breach of contract and negligent misrepresentation had been proved. In regard to the breach of contract claim, it found that, although no completion time was stated in the contract, after thirteen months when the Buyers gave a thirty-day notice to MASCON to have the software operational, a reasonable time had passed within which to have performed the contracts, and MASCON had failed to perform. In regard to the negligent misrepresentation claim, the court found that MASCON made untrue representations about the software that were an "inducement to get into the contract."

¶ 7. By way of damages, the court awarded breach of contract damages of $18,533.75 to GOEX and $58,300.22 to Prent. These damages represented the amounts that each company actually had paid to MAS-CON for software and training. While concluding that the specific terms of the contracts prevented the award of consequential damages, the court determined that consequential damages had been proven which it could assess for the negligent misrepresentation claim. It then awarded $15,860.28 to GOEX and $34,507.20 to Prent as compensation for the wages of the Buyers' employees who spent time trying to fix the software and were thereby prevented from doing other work for their employers.

¶ 8. On motions after verdict, counsel for MAS-CON argued, as he had at trial, that the circuit court should force the Buyers to elect between breach of contract damages and misrepresentation damages because the misrepresentation was relevant only to set aside the contract. Therefore, it was inconsistent to prevail on both a breach of contract claim and a misrepresentation claim. In response, the Buyers' counsel cited Head & Seemann, Inc. v. Gregg, 104 Wis. 2d 156, 311 N.W.2d 667 (Ct. App. 1981) and Tuchalski v. Moczynski, 152 Wis. 2d 517, 449 N.W.2d 292 (Ct. App. 1989), for the proposition that election of remedies is not necessary unless the awards of damages are dupli-cative or inconsistent, and these damages were neither. The circuit court agreed with the Buyers, and MASCON appeals.

DISCUSSION

Standard of Review.

¶ 9. We will not reverse factual findings made by the circuit court unless they are clearly erroneous. See Wis. Stat. §805.17(2) (1997-98); Benn v. Benn, 230 Wis. 2d 301, 307, 602 N.W.2d 65, 68 (Ct. App. 1999). However, whether the facts as found by the circuit court constitute a breach of contract under a written document is a question of law that we review de novo. See Edwards v. Petrone, 160 Wis. 2d 255, 258, 465 N.W.2d 847, 848 (Ct. App. 1990).

¶ 10. Whether the loss suffered by a commercial purchaser of a product is solely an economic loss is a question of law. See Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 402, 573 N.W.2d 842, 845 (1998). Additionally, whether the economic loss doctrine should be applied to the facts as found by the circuit court is a question of law that we determine independently. See Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 915, 437 N.W.2d 213, 215 (1989).

Breach of Contract.

¶ 11. MASCON argues that a breach of contract was not proved because the circuit court erred when it found that MASCON had not completed the installation of an operable software package in fourteen months. While MASCON does not dispute that fourteen months was a reasonable time in which to have fully implemented the software initially agreed to, MASCON maintains that the Buyers continuously changed what they wanted and that was the reason for the delay in installation.

¶ 12. The parties contracted to have Delaware law control the interpretation of their contracts. Wisconsin permits such an election. See Bush v. National Sch. Studios, Inc., 139 Wis. 2d 635, 642, 407 N.W.2d 883, 886 (1987). Therefore, we look to Delaware law in interpreting the contracts. When there is no date certain stated for performance of a contract, it must be performed within a reasonable time. See Martin v. Star Publ'g Co., 126 A.2d 238, 244 (Del. 1956); Salisbury v. Credit Serv., Inc., 199 A. 674, 683 (Del. Super. Ct. 1937). What constitutes a reasonable time for performance within the facts of a given case is a question of fact. See Virginia Kid Co. v. New Castle Leather Co., 89 A. 367, 368 (Del. Super. Ct. 1913).

¶ 13. The circuit court made specific findings in regard to areas where there was non-performance of the contract. It first noted that the features of the software package the Buyers wanted did change during the fourteen months at issue, and therefore, some of the delay was due to their requests for modifications of the initial contract. However, it also found that parts of the basic software package initially contracted for had not been completed. For example, it found that such basic functions as the expansion of the field from ten characters to twenty-two characters had not been done and the accounting module was not functional because the numbers in the accounting package did not compute mathematically. It characterized them as "gibberish." The circuit court also found that the thirty-day notice to complete the installation of the software was reasonable, after the Buyers had already given MASCON thirteen months to do the job, and that the basic software package was not functional at the end of the fourteen-month period. Based on these findings and others of a similar nature relating to the failure of the software systems to operate correctly, it concluded MASCON had breached its contracts with the Buyers.

¶ 14. The factual findings of the circuit court have ample support in the record and are not clearly erroneous. Additionally, those findings fully support its conclusion that MASCON did not perform the contracts in a reasonable time, and therefore, it was in breach of its contracts. While MASCON contends it did not breach the contracts, it does not dispute the damages the circuit court awarded as damages for the breaches. Therefore, we affirm the decision of the circuit court in all respects in regard to breaches of the contracts and the damages awarded for those breaches.

Negligent Misrepresentation.

¶ 15. MASCON spends the majority of its brief arguing that the circuit court should have forced the Buyers to elect their remedies in either contract or tort. The Buyers, on the other hand, contend that election of remedies has no application here because the remedies provided by the circuit court under contract and tort theories were neither duplicative nor inconsistent. We agree with MASCON that the circuit court erred in awarding consequential damages for negligent misrepresentation; however, we do so because those claims are precluded by the economic loss doctrine.

¶ 16. The economic loss doctrine is a judicially created doctrine that precludes a commercial purchaser of a product from suing in negligence or strict liability to recover from the product's manufacturer a loss that is solely economic. See Sunnyslope, 148 Wis. 2d at 921, 437 N.W.2d at 217-18. The commercial purchaser's only remedies are in contract, the law of warranties and the Uniform Commercial Code. See id. at 920-21, 437 N.W.2d at 217. Economic loss has been defined as that loss "in a product's value which occurs because the product is inferior in quality and does not work for the general purposes for which it was manufactured and sold." Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 246, 593 N.W.2d 445, 451 (1999) (citation omitted). Economic loss has also been defined as "damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits . ..." State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis. 2d 305, 314, 592 N.W.2d 201, 205 (1999) (citation omitted).

¶ 17. An economic loss may be either direct or consequential. A direct economic loss is a loss in the value of the product itself. See id. (citing Daanen, 216 Wis. 2d at 401, 573 N.W.2d at 845 (further citations omitted)). Other economic losses that are caused because the product is either defective or does not operate as represented are consequential economic losses. See Wausau Tile, 226 Wis. 2d at 246, 593 N.W.2d at 451. However, economic losses do not include property damage to property other than the defective product or a system in which it is incorporated, nor do economic losses include damage arising from personal injury caused by the product. See Daanen, 216 Wis. 2d at 402, 573 N.W.2d at 845; Cincinnati Ins. Co. v. AM Int'l, Inc., 224 Wis. 2d 456, 461, 591 N.W.2d 869, 871 (Ct. App. 1999).

¶ 18. The economic loss doctrine is bottomed on three policies. First, it preserves the fundamental distinction between tort and contract law, thereby permitting the parties to bargain for their obligations to one another rather than having those obligations established under tort law, which assigns obligations based on social policy choices. As the supreme court has explained, "whether a product meets a certain level of performance or a purchaser's expectations is not a matter of societal interest." State Farm, 225 Wis. 2d at 321, 592 N.W.2d at 207. Second, the economic loss doctrine protects the parties' freedom to allocate economic risks that may arise out of their dealings as they see fit. And third, it encourages the purchaser of a product, who is the party in the best position to assess the resulting economic risk if the product purchased is not as represented, to allocate or insure against that risk. See Wausau Tile, 226 Wis. 2d at 247, 593 N.W.2d at 451 (citing Daanen, 216 Wis. 2d at 403, 573 N.W.2d at 846).

¶ 19. In determining whether the economic loss doctrine should be applied, a court must examine the nature of the damages complained of, the risk that caused them to arise and how that risk impacts on the policies underlying the doctrine. See State Farm, 225 Wis. 2d at 327, 592 N.W.2d at 210. Here, the court found that the damages awarded for the claims of negligent misrepresentation arose as a result of paying the Buyers' employees' wages while they worked on the software project. They did not arise from damage to property other than the software itself or from personal injury. Their nature is that of a purely economic loss. Therefore, under the economic loss doctrine, they are consequential damages that resulted because the software did not function as the Buyers expected that it would. See Wausau Tile, 226 Wis. 2d at 246, 593 N.W.2d at 451.

¶ 20. In regard to the risk that caused the damages, the circuit court found that MASCON made untrue factual statements by representing that the base program had been effectively utilized by other corporations and that it could be modified to meet the needs of the Buyers. The court also found that there were problems with the base program from the beginning. The court then concluded that "this is a negligent misrepresentation which goes outside of the contract. It's inducement to get into the contract, so there are consequential damages." These findings show that the court found the software did not meet the Buyers' expectations because MASCON negligently represented what the software could do. Therefore, the risk that caused the Buyers' losses was sales representations that negligently represented the product's capabilities.

¶ 21. The laws of contract and of warranty, as well as the Uniform Commercial Code, are designed to protect the expectancy interest of the parties to private, bargained-for commercial agreements. See Sunnyslope, 148 Wis. 2d at 920-21, 437 N.W.2d at 217. The Buyers' relationship with MASCON was a purely contractual relationship. The Buyers could have bargained for provisions that permitted recovery for consequential damages, if the software did not perform as MASCON represented it would. Furthermore, the Buyers could have assessed the risk that MASCON had puffed up the capabilities of its product by asking for references to past users of it and speaking with them. And, it was the Buyers who were going to suffer the loss if the software did not meet their expectations; therefore, they were in the best position to assess the magnitude of that risk and allocate it appropriately in their contracts with MASCON. Accordingly, we conclude that the economic loss doctrine applies to these purely economic losses and that claims for negligent representation are not available. Additionally, even though the circuit court found MASCON's negligent misrepresentations about the product induced the Buyers to enter into the contracts, that finding does not prevent the application of the economic loss doctrine because it is no different than most negligent misrepresentations that result in a contract where a buyer's expectations are not met.

¶ 22. One Wisconsin case has held that a claim of misrepresentation prevented the application of the economic loss doctrine: Douglas-Hanson Co., Inc. v. BF Goodrich Co., 229 Wis. 2d 132, 598 N.W.2d 262 (Ct. App. 1999), aff'd by an equally divided court, 2000 WI 22, 233 Wis. 2d 276, 607 N.W.2d 621. In Douglas-Hanson, we did permit a claim for damages for intentional misrepresentation that had caused the plaintiff to purchase equipment costing more than $1,000,000 in order to be able to enter into a service contract with the defendant. There, Goodrich intentionally misrepresented to Douglas-Hanson that it had a "commercially viable adhesive product" which it needed Douglas-Hanson's services in order to "cure" before Goodrich could sell it. Goodrich knew that Douglas-Hanson would be required to make a substantial capital investment in equipment in order to enter into the service contract with it. However, after Douglas-Hanson had purchased and installed the necessary equipment, Goodrich sent only a few rolls of adhesive for curing, then discontinued the product because it concluded it was not commercially viable.

¶23. When Douglas-Hanson sued Goodrich, it did so under theories of breach of contract and intentional misrepresentation. At trial, Douglas-Hanson elected to pursue the intentional misrepresentation claim, wherein it was awarded $1,832,134 as compensatory damages and $1,000,000 as punitive damages. On appeal, Goodrich contended that all of the damages arose out of the failed contract to provide adhesive to Douglas-Hanson for processing, and therefore, the tort claim was barred by the economic loss doctrine. We disagreed, concluding that an intentional misrepresentation claim could be maintained, in part because Douglas-Hanson could not assess Goodrich's representation that it had a commercially viable product because of the confidential nature Goodrich ascribed to information relating to the adhesive and in part because the misrepresentation was intentionally made with the knowledge of the extensive capital outlay it would cause Douglas-Hanson.

¶ 24. In the case at hand, we conclude that Douglas-Hanson provides no basis for avoiding the economic loss doctrine. We note that Douglas-Hanson was not a buyer of a product, as Prent and GOEX are. Instead, Douglas-Hanson contracted to provide a service. No Wisconsin appellate case has addressed whether the economic loss doctrine applies to service contracts. And, because it was not an issue in contention, we did not address that question in our decision in Douglas-Hanson either. Additionally, we were very careful to limit the available claim to intentional misrepresentation. We noted that intentionally lying to induce another to enter into a contract places the seller in the best position to assess the risk, not the buyer. See id. at 145, 598 N.W.2d at 269. Here, the circuit court found that the Buyers had not met their burdens of proof in regard to their claims for intentional misrepresentation. Therefore, Douglas-Hanson does not affect our conclusion that the economic loss doctrine bars recovery for negligent misrepresentation to a commercial buyer of a product, and accordingly, we reverse the award of damages that the circuit court made for those claims.

CONCLUSION

¶ 25. Because we conclude that the findings and conclusions of the circuit court fully support the Buyers' breach of contract claims, we affirm those portions of the judgments. However, because we also conclude that the economic loss doctrine precludes the Buyers' claims for negligent misrepresentation, we reverse the circuit court as to those claims.

By the Court. — Judgments affirmed in part; reversed in part.

       The agreement of the parties precluded the collection of consequential damages as a breach of contract remedy: "IN NO EVENT SHALL MASCON BE LIABLE FOR ANY DAMAGES CAUSED BY THE SYSTEM, WHETHER DIRECT OR INDIRECT, SPECIAL, OR CONSEQUENTIAL

       We note the amount of the GOEX judgment is $34,406.62, exclusive of costs, which is $8.59 more than its components for breach of contract and misrepresentation. However, the Buyers do not address this issue, so we shall ignore it as well. See Waushara County v. Graf, 166 Wis. 2d 442, 453-54, 480 N.W.2d 16, 20 (1992).

       The amounts awarded for negligent misrepresentation reflect a finding of thirty percent contributory negligence by the Buyers.

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

       Neither party argued the economic loss doctrine to this court or to the circuit court. We would have preferred that they had, as we are always assisted in our decisions by the efforts of counsel. However, the question of whether the economic loss doctrine applies to the facts as found is a question of law, and therefore, it is a decision we make without deference to the circuit court. See Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 915, 437 N.W.2d 213, 215 (1989). Accordingly, we examine its application to the facts as found by the circuit court.

       Recently the supreme court has applied the economic loss doctrine to bar the recovery of economic losses in certain consumer transactions as well. See State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis. 2d 305, 348, 592 N.W.2d 201, 219 (1999); General Cas. Co. of Wisconsin v. Ford Motor Co., 225 Wis. 2d 353, 361, 592 N.W.2d 198, 201 (1999).

       Although the parties chose Delaware law to govern the interpretation of their contracts, we have concluded that Wisconsin law is the correct law to be applied to our determination of whether the economic loss doctrine applies here because the Buyers have made tort claims under Wisconsin law. Therefore, it is Wisconsin's economic loss doctrine that determines whether those claims are precluded. However, we note that Delaware employs the economic loss doctrine in similar situations too. See Council of Dorset Condominium Apartments v. Dorset Apartments, No. 90C-10-269, 1992 WL 240444, at *2 (Del. Super. Ct. Aug. 26, 1992); Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992).

       There is no dispute about the amount of damages awarded; rather, the dispute centers on whether even one dollar of damages could be awarded for negligent misrepresentation.

       In contract parlance, they would be consequential damages as well. See Pierce v. International Ins. Co. of Illinois, 671 A.2d 1361, 1367 (Del. 1996); Reimer v. Badger Wholesale Co., Inc., 147 Wis. 2d 389, 395, 433 N.W.2d 592, 594 (Ct. App. 1988). And, as the parties agree, consequential contract damages are unavailable under the contracts between the Buyers, who are commercial purchasers of products, and MASCON.

       Examples of the problems found by the circuit court were: The Buyers paid to have a format that permitted twenty-two characters, which was never provided, the accounting module never worked and "the cash is gibberish."

        See Timothy L. Bertschy, Negligent Performance of Service Contracts and the Economic Loss Doctrine, 17 J. Marshall L. Rev. 249 (1984).


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jason J. Trawitzki, Defendant-Appellant.

    Court of Appeals

      No. 99-2234-CR.

      Submitted on briefs June 23, 2000.

    Decided August 31, 2000.

    2000 WI App 205
    (Also reported in 618 N.W.2d 884.)

      On behalf of the defendant-appellant, the cause, was submitted on the briefs of Donald T. Lang, assistant state public defender, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, P.J., Vergeront and Deininger, JJ.

      Petition to review granted.

   DEININGER, J.

¶ 1. Jason Trawitzki appeals a judgment convicting him of one count of burglary, ten counts of theft and five counts of concealing stolen property. He also appeals an order denying his motion for postconviction relief. Trawitzki contends that the theft and concealment charges brought against him were multiplicitous, and thus in violation of the Double Jeopardy Clause. He also contends that his counsel was ineffective for failing to impeach certain of the State's witnesses. We reject Trawitzki's arguments and affirm the appealed judgment and order.

BACKGROUND

¶ 2. Trawitzki, along with several friends, accompanied Kristy Lehman, a runaway, to her home in Watertown. Before leaving the Lehman home, members of the group took at least ten firearms belonging to Kristy's father and loaded them into the trunk of Trawitzki's friend's car. The group then drove to the home of one of the participants and placed all the guns in the basement. The next morning, several of the guns were removed from the basement and hidden near a bridge. Trawitzki acknowledged being present during the activities at the Lehman house, but denied carrying any of the guns out of the residence. He also denied seeing or assisting in the hiding of the guns.

¶ 3. The State charged Trawitzki with burglary while armed, the thefts of the ten firearms and the concealment of five of them, all as a party to the crimes, which were also alleged to have been committed in association with a criminal gang. See Wis. Stat. §939.625 (1997-98). During Trawitzki's jury trial, three of the co-perpetrators testified for the State. It was established that each of them was then in jail or prison because of their involvement with the burglary and thefts at the Lehman residence. The jury found Trawitzki guilty of one count of burglary, ten counts of theft of a firearm, and five counts of concealing a stolen firearm, all as a party to the crimes and in association with a criminal gang. The trial court denied his post-conviction motion alleging ineffective assistance of counsel. Trawitzld appeals his convictions and the order denying relief from them.

ANALYSIS

¶ 4. "Multiplicity" is the term used to describe the charging of a single criminal offense in more than one count. See Harrell v. State, 88 Wis. 2d 546, 555, 277 N.W.2d 462 (Ct. App. 1979). Multiplicitous charges violate the double jeopardy provisions of the Wisconsin and United States Constitutions. See State v. Rabe, 96 Wis. 2d 48, 61, 291 N.W.2d 809 (1980). Trawitzki asserts that the multiple theft and concealment charges for which he was prosecuted, convicted and punished, violate the constitutional prohibition against double jeopardy. This is a question of law, which we decide de novo. See State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992).

¶ 5. As we have recently explained, the prohibition against "multiple punishments" serves to protect the legislature's authority to prescribe the limits of punishment for criminal offenses from encroachment by the executive branch in bringing charges, or by the judiciary in imposing sentences:

The United States Supreme Court has identified three protections afforded by the double jeopardy provision: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." United States v. Wilson, 420 U.S. 332, 343 (1975) (citations omitted). In cases implicating the protection against multiple punishments, the question is whether the punishments are for the "same offense." The answer depends on the intent of the legislature in drafting the criminal statutes under which the defendant is convicted. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366 (1983).

State v. Church, 223 Wis. 2d 641, 649, 589 N.W.2d 638 (Ct. App. 1998), review granted, 225 Wis. 2d 487, 594 N.W.2d 382 (Wis. Apr. 27, 1999) (No. 97-3140-CR), review dismissed, 2000 WI 90, 236 Wis. 2d 755, 613 N.W.2d 848 (Wis. July 11, 2000).

¶ 6. Thus, although Trawitzki invokes the protection of the federal and state constitutions, the issue before us must be resolved as a question of statutory interpretation. If the legislature, in enacting Wis. STAT. § 943.20(3)(d)5, intended that a defendant may be separately and cumulatively punished for each firearm he or she steals or conceals, then Trawitzki's convictions are not multiplicitous. If, on the other hand, the legislature intended the imposition of only one punishment for a single episode of firearms theft or concealment, regardless of the number of weapons that are taken or hidden, then Trawitzki's multiple convictions are constitutionally barred. See Sauceda, 168 Wis. 2d at 492.

¶ 7. In short, the question before us is " 'what is the allowable unit of prosecution'" intended by the legislature for the crime of theft of a firearm? See Blenski v. State, 73 Wis. 2d 685, 694, 245 N.W.2d 906 (1976) (citation omitted). To answer it, we employ the two-prong test the Wisconsin Supreme Court has adopted to evaluate whether charges are multiplicitous. First, a court must determine whether the offenses are "identical in law and in fact." If identical in both law and fact, the charges are multiplicitous. Second, if the offenses are not the same in law or fact, the court must determine whether the legislature nevertheless intended the multiple offenses to be brought as one count. See State v. Anderson, 219 Wis. 2d 739, 747, 580 N.W.2d 329 (1998).

¶ 8. There is no dispute that the ten theft counts are identical in law, as are the five concealment counts. All of the charges arise under the same statutory provisions, Wis. Stat. § 943.20(l)(a) and (3)(d)5, which provide in relevant part:

(1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):
(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of such property.
(3) PENALTIES. Whoever violates sub. (1):
(d) If the value of the property does not exceed $2,500 and any of the following circumstances exist, is guilty of a Class D felony:
5. The property is a firearm.

¶ 9. Trawitzki argues that the multiple counts are also identical in fact because the theft charges arise out of a single act of taking, and the concealing counts likewise involve but one act of concealment. We disagree. To obtain the separate convictions for each firearm, the State had to prove that each item stolen or concealed was indeed a "firearm." See Wis JI — Criminal 1441B (1999). And, for each count, the State had to prove that the elements of theft were present with respect to each individual firearm (asportation or concealment, lack of the owner's consent, the defendant's knowledge thereof, and intent to permanently deprive the owner of possession). See WlS JI — Criminal 1441 (1999).

¶ 10. Multiple offenses are not the same in fact if the facts on which they are based are "either separated in time or of a significantly different nature." State v. Anderson, 219 Wis. 2d 739, 749, 580 N.W.2d 329 (1998). We are satisfied that each of the allegedly mul-tiplicitous charges are based on sufficiently different facts — the individual identity and characteristics of each firearm — to render each separate charge different in fact from the others. Furthermore, the firearms taken and concealed were unique and divisible, thus differentiating their thefts from, for example, the theft of several gallons of gasoline or a handful of jelly beans. As the State notes, Trawitzki and his friends could easily have elected to take any number less than all ten of the guns, just as they elected to hide only five of them. In short, the taking of each firearm represented a separate volitional act on the part of the burglars. See id.

¶ 11. Although we have concluded that the multiple charges at issue were not identical in fact, our inquiry is not ended. We must now presume the legislature to have intended to allow multiple punishments for the taking of more than one firearm in a single episode of theft, but we must look further to ascertain whether there are any indications of legislative intent to the contrary. See Anderson, 219 Wis. 2d at 751. For this part of the analysis, we are to consider four factors: "(1) the language of the statute; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct." State v. Hubbard, 206 Wis. 2d 651, 659, 558 N.W.2d 126 (Ct. App. 1996) (citing State v. Grayson, 172 Wis. 2d 156, 160, 493 N.W.2d 23 (1992); and State v. Tappa, 127 Wis. 2d 155, 165, 378 N.W.2d 883 (1985)).

¶ 12. The plain language of the statute supports the presumption that the legislature intended to allow multiple punishments in circumstances such as those presently under review. It chose to use the singular term "a firearm," rather than specifying that a theft of "firearms," or even "one or more firearms," constitutes a Class D felony. Trawitzki, however, points to WlS. Stat. § 990.001(1), which provides that "unless construction in accordance with a rule would produce a result inconsistent with the manifest intent of the legislature . . . [t]he singular includes the plural, and the plural includes the singular."

¶ 13. We agree that this statutory construction rule permits a prosecutor to aggregate the thefts of several firearms into a single felony charge under WlS. Stat. § 943.20(3)(d)5, but we reject the notion that it provides a basis for concluding that the legislature has required a prosecutor to do so. In order to rebut the presumption in favor of multiple charging under which our present inquiry proceeds, a "clear indication to the contrary" is required. See Anderson, 219 Wis. 2d at 751 (citing Missouri v. Hunter, 459 U.S. 359, 367 (1983)). Nothing in the language of the statute indicates that the legislature intended that a prosecutor must combine the thefts of several firearms during a single episode into a single felony charge under § 943.20(3)(d)5, and WlS. STAT. § 990.001(1) falls far short of providing a "clear indication to the contrary."

¶ 14. The history of Wis. Stat. § 943.20 offers little insight as to what the legislature intended regarding the allowable unit of prosecution when a number of firearms are stolen or concealed in a single episode of theft. The felony penalty for theft of a firearm was added to the theft statute by Laws of 1977, ch. 255, a single-subject act which created § 943.20(3)(d)5 and made no other changes to the theft statute or any other criminal statutes relating to firearms. If anything, the act's "relating clause," supports the presumption that the legislature intended to permit the prosecution of a separate felony for each firearm taken in a single episode of theft: "AN ACT ... relating to making theft of a firearm a felony." But even if the history of the statute lends little support to the State's position, as Trawitzki argues, it also provides no indication whatsoever that the legislature's intent was to prohibit multiple charges when several firearms are stolen in a single episode of theft.

¶ 15. The final two factors we are to review, the nature of the proscribed conduct and the appropriateness of multiple punishments for that conduct, are closely related. Trawitzki points to what he terms the absurdity of allowing multiple punishments on the present facts by noting that, under another , subparagraph of the statute, the theft of property that "is a domestic animal" is also made a felony. Hence, in an example Trawitzki posits, the theft of a truckload of 500 chickens might subject the perpetrator to 5000 years in prison (500 times a 10-year-term of imprisonment for each bird). He argues that the felony penalty provisions at issue focus "not on the amount, number, or value of the items taken, but on the nature of the property involved or the circumstances surrounding the taking." We agree with this proposition, but not with the conclusion Trawitzki would have us draw from it.

¶ 16. We agree that the legislature in enacting the felony penalty for theft of a firearm was concerned with the nature of the stolen item, but we deem it neither absurd nor inappropriate that a separate or additional penalty may be sought for each firearm taken in an episode of theft. As the State points out, it is reasonable to assume that, while other aspects of the theft statute focus on the harm or loss to the victim, the legislature sought by enacting Wis. Stat. § 943.20(3)(d)5 to address a separate societal concern, the proliferation of guns among criminals. And, since the theft of each individual firearm potentially places another weapon in the hands of a criminal for use in another crime, it is not inappropriate to separately penalize the taking or concealment of each one. (We leave for another day the consideration of the appropriateness of exposing a thief convicted of stealing 500 chickens to 5000 years of imprisonment.)

¶ 17. In summary, none of the Grayson factors produce any indication, let alone a "clear indication," see Anderson, 219 Wis. 2d at 751, that the legislature intended only a single prosecution for the taking or concealment of several guns in a single episode of theft. We thus hold that the presumption in favor of the allowance of multiple prosecutions is not overcome, and Trawitzki's convictions for ten counts of theft and five counts of concealing stolen property do not violate the Double Jeopardy Clauses of the federal and state constitutions.

¶ 18. The remaining issue is whether Trawitzki was denied effective assistance of counsel because of his attorney's failure to impeach certain state witnesses. Although the jury was informed that each witness was incarcerated for his or her involvement in the Lehman burglary and thefts, Trawitzki argues that his attorney was ineffective because he failed to elicit the number of times each witness had been convicted of a crime. We conclude, however, that counsel was not ineffective because the failure to elicit the number of convictions for each witness did not prejudice Trawitzki.

¶ 19. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that his trial counsel's performance was deficient and that this performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether trial counsel's actions constitute ineffective assistance presents a mixed question of law and fact. See State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). We will not reverse the trial court's factual findings regarding counsel's actions at trial unless those findings are clearly erroneous. See id. at 634. Whether trial counsel's performance was deficient and whether that behavior prejudiced the defense, however, are questions of law which we review de novo. See id.

¶ 20. In analyzing an ineffective assistance claim, this court may choose to address either the "deficient performance" component or the "prejudice" component first. See Strickland, 466 U.S. at 697. If we determine that the defendant has made an inadequate showing on either component, we need not address the other. See id. We turn first to the issue of prejudice. To prove prejudice, Trawitzki must show that trial counsel's errors had an actual, adverse effect on the defense. See id. at 693. He must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Specifically, Trawitzki must convince us that the failure to elicit the number of convictions of the witnesses deprived him of a "fair trial, a trial whose result is reliable." Id. at 687.

¶ 21. Trawitzki contends that the trial ultimately rested on how the jury perceived the credibility of the State's witnesses balanced against his own credibility. Therefore, Trawitzki argues that failing to impeach the State's witnesses by eliciting the number of convictions was prejudicial. Each of the witnesses admitted to being a participant in the burglary and thefts of the firearms. The only thing the jury was not told was the number of convictions each witness had garnered. Defense counsel testified that he did not elicit the number of convictions from each witness for tactical reasons. He felt that bringing out this information would only harm his client because the jury would associate the criminal activities of his co-conspirators with Trawitzki's own guilt — "[I]t seemed to me that would be just inviting people to point out the fact they did these — other people had been convicted of these crimes, we should convict Mr. Trawitzki as well."

¶ 22. Because the jury knew that the three witnesses were incarcerated for their involvement in the Lehman burglary and thefts, jurors already had a basis to question the credibility of their testimony. Evidence that a witness has been convicted of a crime is admissible for the purpose of attacking the witness's credibility by an adverse inference regarding the witness's character for truthfulness. See State v. Smith, 203 Wis. 2d 288, 294, 553 N.W.2d 824 (Ct. App. 1996). Even though the number of convictions each witness had may have added incrementally to the adverse inference, we deem it unlikely that the additional information would have materially influenced the jurors' credibility assessments. That is, we are not persuaded that there is a reasonable probability that the results of Trawitzki's trial would have been different if his counsel had established that the three co-perpetrators who testified against Trawitzki had been convicted of multiple crimes.

CONCLUSION

¶ 23. For the reasons discussed above, we affirm the appealed judgment and order.

By the Court. — Judgment and order affirmed.

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

         See U.S. Const, amend. V; Wis. CONST, art. I, § 8, cl. (1).

       Evidence adduced at the postconviction hearing indicates that Kristy Lehman had three convictions, all apparently relating to the Lehman burglary and thefts; that another witness, Jason Glascock, had eight, five of which apparently related to the Lehman burglary and three for offenses committed four days later; and that the third witness, Christopher Schoch, had fourteen convictions, twelve of which apparently arose out of the Lehman incident, and two that were unrelated to it.


author: VERGERONT, J.

text:
    Board of Regents of the University of Wisconsin, Plaintiff-Respondent, v. Dane County Board of Adjustment, Defendant, Town Board of Montrose, Laura Dulski, and Bill Warner, Intervenors-Appellants.

    Court of Appeals

      No. 99-2662.

      Submitted on briefs May 19, 2000.

    Decided August 31, 2000.

    2000 WI App 211
    (Also reported in 618 N.W.2d 537.)

      On behalf of the intervenors-appellants, the cause was submitted on the briefs oí Laura Dulski and James D. Cooley of Belleville.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and F. Thomas Creeron III, assistant attorney general.
    Before Vergeront, Roggensack and Deininger, JJ.

      Petition to review denied.

   VERGERONT, J.

¶ 1. This appeal concerns the interpretation of "governmental use," a conditional use in the A-l Agriculture District Exclusive under the Dane County Zoning Ordinance. The Dane County Board of Adjustment (BOA) determined that a tower for a University of Wisconsin-Madison student-run radio station was not a governmental use because the testimony failed to show that operation of such a radio station by the University of Wisconsin "is an integral part of its educational mission." The circuit court reversed that determination and the Town of Mont-rose, Laura Dulski, and Bill Warner appeal that determination. They contend the BOA correctly applied the law, the record supports its decision, and the circuit court erred in substituting its interpretation of the law and facts for that of the BOA.

¶ 2. We affirm the circuit court's order reversing the BOA's decision, although we do so on different grounds. We conclude that the BOA erred in its interpretation of "governmental use," and that, applying the correct standard to the undisputed facts in this case, the proposed tower is a governmental use.

BACKGROUND

¶ 3. Mario Gobel, a landowner in the Town of Montrose, applied for a conditional use permit (CUP) for the construction of a radio tower on his property, with the intent of leasing his land to the Board of Regents of the University of Wisconsin (Board of Regents) to erect the tower and operate a student-run radio station. The property is zoned A-l Agriculture District Exclusive (A-l Exclusive). Gobel designated his application as one for "governmental use," a conditional use in the A-l Exclusive District. See Dane County, Wis, Ordinances § 10.123(3)(c). The Dane County Zoning and Natural Resources (ZNR) Committee scheduled a public hearing on the application. The threshold issue arose whether the proposed radio tower was a "governmental use" within the meaning of the ordinance. The zoning administrator opined in a memo to the committee that the proposed tower was a governmental use. The ZNR Committee adopted that view and voted to grant the conditional use permit.

¶ 4. The Town of Montrose, Dulski, and Warner (collectively Montrose) appealed to the BOA the zoning administrator's determination that the proposed tower was a governmental use, contending that his decision was based on an incorrect theory of law and was arbitrary. The issue before the BOA was limited to the zoning administrator's interpretation of "governmental use" and did not include the ZNR's decision to grant a conditional use permit.

¶ 5. The following information concerning the proposed tower was provided by counsel for the Board of Regents, Professor James Hoyt of the UW-Madison School of Journalism and Mass Communication, and David Black, General Manager of WSUM (the UW-Madison student radio station) and a graduate student in Journalism and Mass Communication. The Board of Regents will own the tower and hold the Federal Communications Commission (FCC) license. The tower will be funded with student fees. Gobel will continue to own the land and farm other portions. The University of Wisconsin has twelve radio stations functioning now on various campuses and only Parkside Campus and Madison do not have a radio station. The stations vary, with some being more student-operated than others; some are public radio and some are not.

¶ 6. The operation of WSUM will be under the administration of Professor Hoyt and Black. Professor Hoyt is a member of the board of directors of the station and is the liaison to the Board of Regents. It is his responsibility to see that the station operates consistent with the educational mission of the University of Wisconsin. The station's mission statement filed with the FCC provides:

(1) The primary mission of the station will be to act in a service and outreach capacity for the students of the University of Wisconsin-Madison and people of Madison and surrounding communities. (2) The secondary mission of the station will be to provide an educational environment and valuable hands-on experience for student [sic] aspiring to a career in or with a genuine interest in broadcast communication or a related field. At this time, the University plans to use the station as a teaching and learning tool for students expressing interest in communications and broadcast experience. Interested students will have significant educational benefits from exposure to the station's operations. (3) The station will also provide an alternative source of music entertainment to the campus and community. The University has identified a need for an alternative source of music entertainment in the area and believes this programming will serve an unserved need in the campus and surrounding community.

¶ 7. UW-Madison students may initiate independent study projects at the station with individual faculty members who will supervise them, set the requirements for the project, and grade them. Professor Hoyt and other professors teaching courses in broadcast news and management, in the School of Journalism and other departments, will use the station as a laboratory for the students in their courses.

¶ 8. After hearing this testimony, hearing other persons speak both in support of and against Mont-rose's appeal, receiving briefs and other submissions, and discussing their views, the BOA voted 3-1 to reverse the zoning administrator's determination on governmental use. The brief written report of the BOA's decision makes a finding that "testimony failed to show operation of a student radio station by the University of Wisconsin is an integral part of its educational mission." Although the report did not expressly so state, the majority of the BOA implicitly adopted the standard proposed by the assistant corporation counsel on behalf of the zoning administrator — that the proposed tower is a governmental use if it is an integral part of the educational mission of the university. The majority decided the facts did not meet this standard.

¶ 9. The Board of Regents filed a complaint in circuit court seeking certiorari review of the BOA's interpretation of "governmental use." The Town of Montrose, Dulski, and Warner moved to intervene, and their motion was granted. The BOA chose not to participate. The circuit court decided the BOA exceeded its jurisdiction and there was not substantial evidence in the record to support its decision. The court concluded there was "overwhelming evidence" the station was "an integral part of the University in its educational system," and, therefore, a governmental use.

DISCUSSION

Standard of Review

¶ 10. On certiorari review, the appellate court reviews the decision of the board, not the decision of the circuit court. See Clark v. Waupaca County BOA, 186 Wis. 2d 300, 303, 519 N.W.2d 782 (Ct. App. 1994). We, like the circuit court, limit our certiorari review to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might make the decision it did. See id. at 304. On this appeal, we address only the Board of Regents' challenge to the BOA's decision under the second criteria — that it made errors of law in interpreting and applying the term "governmental use."

¶ 11. The interpretation of an ordinance is a question of law, which is generally subject to de novo review. See Marris v. City of Cedarburg, 176 Wis. 2d 14, 32, 498 N.W.2d 842 (1993). However, the reviewing court may accord deference to the interpretation adopted by a board or agency. See id. at 33. In the context of state boards and state agencies, two degrees of deference to the administrative tribunal's legal determinations have been established — due weight and great weight, each with its own set of criteria. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 284-87, 548 N.W.2d 57 (1996). Therefore, the first issue we must resolve is whether to accord deference to the BOA's interpretation of "governmental use," and, if so, how much.

¶ 12. Montrose contends we must presume the decision is correct citing, among other cases, Miswald v. Waukesha Co. BOA, 202 Wis. 2d 401, 550 N.W.2d 434 (Ct. App. 1996), review denied. However, that case concerned a decision on whether a variance should be granted, not an interpretation of an ordinance, which is a question of law that courts ordinarily review de novo. See Marris, 176 Wis. 2d at 32. We find more on point two decisions in which the supreme court decided that de novo review of a local board's interpretation of an ordinance was appropriate because the decision was likely to have state-wide impact, given that the language at issue appeared in the ordinances of many counties. See Weber v. Town of Saukville, 209 Wis. 2d 214, 223-24, 562 N.W.2d 412 (1997); Morris, 176 Wis. 2d at 33. The rationale in these decisions is that one county agency's interpretation of the language in a single case should not be controlling or persuasive for the many other counties that have ordinances with the same or similar language. See Morris, 176 Wis. 2d at 33.

¶ 13. The Morris /Weber rationale is applicable here because the A-l Exclusive classification is based on Wis. Stat. § 91.71-75 (1997-98) which establishes "the minimum requirements for zoning ordinances designating certain lands for exclusively agricultural use. . . ." Wis. Stat. § 91.71. That statute specifically addresses conditional uses in such districts:

(5) Special exceptions and conditional uses are limited to those agricultural-related, religious, other utility [other than those addressed in Wis. Stat. § 91.71(4)], institutional or governmental uses that are consistent with agricultural use and are found to be necessary in light of the alternative locations available for such uses. The department [of Agriculture, Trade, and Consumer Protection] shall be notified of the approval of any special exceptions and conditional uses in areas zoned for exclusive agricultural use.

Section 91.75(5) (emphasis added). Because an interpretation of "governmental use" in Dane County, Wis., Ordinances § 10.123(3)(c) may have an impact on zoning ordinances in other counties that have A-l Exclusive Districts, we conclude that de novo review is appropriate.

Interpretation of "Governmental Use"

¶ 14. We interpret ordinances using the rules of construction that we apply to statutes. See Marris, 176 Wis. 2d at 32. We begin with the language of the ordinance, and, if it is plain, we apply the meaning to the facts at hand; if it is ambiguous, we consider such things beyond the language as scope, history, context, subject matter, and object of the ordinance. See Schroeder v. Dane County BOA, 228 Wis. 2d 324, 333, 596 N.W.2d 472 (Ct. App. 1999), review denied.

¶ 15. At the time of this CUP application and the zoning administrator's opinion that the proposed tower was a governmental use, the Dane County Ordinances contained this definition of "governmental use":

(23h) Governmental uses shall include, but not be limited to, parks, playgrounds, schools, hospitals, police and fire stations, solid waste disposal sites and recreational areas.

Dane County, Wis., Ordinances § 10.01(23h) (1997). We conclude that the definition does not plainly identify what uses are "governmental uses" beyond those specified; therefore, it is ambiguous. Accordingly, we will look to extrinsic aids as appropriate in deciding upon the correct interpretation.

¶ 16. The Board of Regents contends any activity a unit of government has the statutory authority to engage in is a "governmental use." It emphasizes that the list of uses in Dane County, Wis., Ordinances § 10.01(23h) is one example only and is expressly nonexclusive. Montrose contends any governmental use not listed must belong to the same class as the specific examples pursuant to the doctrine of ejusdem generis. Under that rule, where a general term is preceded or followed by a series of specific terms that have a common element, the general term is viewed as being limited to items of the same type or nature as those specifically enumerated. See State v. Campbell, 102 Wis. 2d 243, 246-47, 306 N.W.2d 272 (Ct. App. 1981). Montrose contends the commonality among those listed is that each is a "traditional government function or obligation" and a "service we as citizens expect government to provide," and a student-run radio station does not share those commonalities because it is an "inessential amenity."

¶ 17. As a starting point in our analysis, we observe that conditional uses are often not defined with specificity because their purpose is to "confer a degree of flexibility in the land use regulations. . . . '[I]f the purposes of zoning are to be accomplished, the master zoning restrictions or standards must be definite while the provisions pertaining to a conditional use ... must of necessity be broad and permit an exercise of discretion.' " Weber, 209 Wis. 2d at 225-26 (citations omitted). Montrose's interpretation of governmental use is narrow — intentionally so, Montrose explains, because such narrowness is necessary to preserve the agricultural character of A-l Exclusive Districts. However, it is not necessary to narrow the definition of "governmental use" in order to ensure that the requirements of Wis. Stat. §§ 91.71-91.80 are met, because that purpose is accomplished by the standards imposed for all conditional uses in A-l Exclusive Districts. In keeping with the requirements in Wis. STAT. § 91.75(5) that specified conditional uses, which include "governmental uses," are to be "consistent with agricultural use and . . . necessary in light of the alternative locations available for such uses," Dane County, Wis., Ordinances § 10.123(3)(a) provides:

(a) Standards applicable to conditional uses in the A-l Exclusive Agriculture District. The Department of Agriculture, Trade and Consumer Protection shall be notified of the approval of any conditional use permit. In passing applications for conditional use permits the committee shall consider the following relevant factors:
1. Standards applicable to conditional uses in the A-l Agriculture District (Exclusive). Consumer Protection shall be notified of the approval of any conditional use permit. In passing applications for conditional use permits the committee shall consider the following relevant factors:
a. The statement of purposes of the zoning ordinance and the A-l District.
b. The potential for conflict with agricultural use.
c. The need of the proposed use for a location in an agricultural area.
d. The availability of alternative locations.
e. Compatibility with existing or permitted use on adjacent lands.
f. The productivity of the lands involved.
g. The location of the proposed use so as to reduce to a minimum the amount of productive agricultural land converted.
h. The need for public services created by the proposed used.
i. The availability of adequate public services and the ability of affected local units of government to provide them without an unreasonable burden.
j. The effect of the proposed use on water or air pollution, soil erosion and rare or irreplaceable natural resources.

¶ 18. Montrose's position that the proposed tower is not in keeping with the statutory requirements for A-l Exclusive Districts because of its size, obtrusiveness, lights, and other features is properly presented in the CUP process and does not necessitate interpreting the term "governmental use" narrowly. Moreover, "governmental use" is a conditional use in most of the other zoning districts under the Dane County Ordinance. Nothing in the language of Dane County, Wis., Ordinances §§ 10.01(23h) (1997) and 10.123, or any other section of the ordinance brought to our attention, suggests the term is to be interpreted differently in the A-l Exclusive District than in the other districts.

¶ 19. We also do not agree with Montrose that application of the doctrine ejusdem generis provides a satisfactory resolution. The elements Montrose derives from the list of specific governmental uses — obligations of government, necessary services or functions, and traditionally provided by government — are not common to all the listed uses. Hospitals, for example, are most often non-governmental, and although counties and cities may establish hospitals, see, e.g., Wis. Stat. §§ 66.47, 51.09, they are not required to do so. Parks and recreational areas, to take two more examples, appear to be amenities rather than necessities, and towns and villages are authorized to maintain parks, but are not required to do so. See WlS. STAT. § 27.13.

¶ 20. Even if we take "traditionally provided by government" as the touchstone for "governmental use," significant questions of interpretation remain. The State of Wisconsin has provided a university education since 1848, which certainly makes university education a service "traditionally provided by government." Recognizing this, Montrose proposes we focus not on the broad service of university education but the particular service involved in this CUP — a student-run radio tower — and ask whether it is an obligation of the University of Wisconsin, necessary to its educational mission, and a service or function the University of Wisconsin has traditionally provided. We reject this approach because these requirements are unrelated to the purposes of zoning. See Wis. Stat. § 59.69(1); Dane County, Wis., Ordinances § 10.22. Under this approach, a traditional and necessary service or function that a governmental unit is obligated to provide may be considered for a conditional use, whereas a new or authorized, but not required, function or service with less impact on land use may not be considered for a conditional use.

¶ 21. Governmental units have wide discretion in how they carry out their statutory duties, a governmental unit often provides improvements or innovations in services and functions, and government is often authorized to provide what may be considered "amenities" as well as what is considered "necessary." Once a governmental unit has decided to provide a service or function that it is authorized to provide, we see no benefit from the perspective of the regulation of land use in having zoning officials or boards decide whether that service or function is a traditional one for government or necessary for the governmental unit to carry out its statutory duty: the land use concerns may be addressed in the process established for granting or denying a conditional use permit.

¶ 22. Montrose also contends the radio tower is a proprietary rather than a governmental use. However, the government/proprietary distinction discussed in the treatises Montrose cites in its brief arises in the context of deciding whether a governmental unit is immune from local zoning ordinances; this is an issue only when legislative intent is unclear as to whether the zoning ordinances apply to the governmental units. See, e.g., 4 Edward H. Ziegler, Rathkopf's The Law of Zoning and Planning § 53.02-.05 (4th ed. 1996). In this case, there is no dispute whether the zoning ordinance applies to the governmental unit: under Wis. Stat. § 13.48(13), the State and its agencies are subject to applicable municipal zoning ordinances. The issue before us is how to interpret the term "governmental use" in the zoning ordinance that applies to the Board of Regents, and we see no need to resort to case law developed in a different context. If the proposed tower is a governmental use, the Board of Regents is not thereby immune from zoning restrictions: the requirements for a conditional use then apply to it.

¶ 23. For similar reasons, we decline Montrose's invitation to look to the "balancing of interest" test employed by some jurisdictions to resolve intergovernmental zoning disputes when there is no clear expression of legislative intent concerning whether states and state agencies are subject to local zoning ordinances. Montrose proposes this as helpful in identifying the pertinent policy concerns involved in this appeal. However, because of WlS. Stat. § 13.48(13) there is no need to resort to such a test, and the rules of statutory construction that apply to construing ordinances are sufficient to construe and apply the ordinance provisions at issue.

¶ 24. We conclude that the correct interpretation of "governmental use" in Dane County, Wis., Ordinances §§ 10.01(23h) (1997) and 10.123(3)(c) is any service, function, or facility that a governmental unit is authorized by statute to provide (assuming the governmental unit is otherwise subject to the zoning ordinance). This interpretation leaves to governmental units the decision how best to carry out their statutory obligations and how best to use their statutory powers, gives zoning authorities the flexibility that is generally desirable with conditional uses, and does not interfere with the standards for granting or denying conditional use permits in A-l Exclusive Districts that is mandated by WlS. Stat. § 91.75 and reflected in § 10.123(3)(a)l.

¶25. Montrose next contends that, even if we interpret "governmental use" in this way, we must nevertheless exclude "communication towers," because these are specifically defined and regulated, see Dane County, Wis., Ordinances §§ 10.01(78m) and 10.194, and specifically allowed as conditional uses in certain other districts, but not in A-l Exclusive. Moreover, asserts Montrose, in all but one of these other districts both governmental uses and communication towers are conditional uses, showing that the former does not include the latter. Montrose also points out that when the specific definition and regulation of communication towers were added to the ordinance, communication towers were added as a conditional use in the M-l Industrial District and changed from a permitted to a conditional use in the CO-1 Conservancy District, but were not added to the A-l Exclusive District. See Ord. Amend., No. 57 (1996-97). According to Montrose, this is additional proof that the intent was to exclude all communication towers from A-l Exclusive Districts.

¶ 26. We do not agree with Montrose that other sections of the ordinance, or the history of the amendments concerning communication towers, show an intent to exclude communication towers from the definition of governmental uses. Rather, where governmental uses and communication towers are both listed as conditional uses, private developers of communication towers may apply for conditional use permits. However, where communication towers are not listed as a conditional use but governmental uses are, then only a governmental unit may apply for a conditional use permit for a communication tower. Cf. Madison Landfills, Inc. v. Dane County, 183 Wis. 2d 282, 292-93, 515 N.W.2d 322 (Ct. App. 1994) (there, in the context of a holding not applicable here, we recognized that, since governmental uses and sanitary landfills are listed as separate conditional uses in A-2 districts, see Dane COUNTY, Wis., ORDINANCES § 10.126(3)(j) and (h), both governmental and non-governmental landfills may be conditional uses in those districts; but only the former may be a conditional use in A-l Exclusive Districts, because sanitary landfills are not separately listed as a conditional use). Had the drafters of the ordinance or the amendment wanted to exclude "communication towers" from the definition of "governmental uses" in Dane County, Wis., Ordinances § 10.01(23h) (1997), or from Dane County, Wis., Ordinances § 10.123(3)(c), they could have done so. Compare Dane County, Wis., Ordinances § 10.145(3)(a) (allowing as a conditional use in Exposition District "governmental uses other than governmental offices").

¶ 27. Having decided upon a definition of governmental use, we next consider whether the proposed tower comes within that definition based upon the evidence presented to the BOA. Because the evidence essential to the application of the standard is not in dispute, there is no need to remand to the BOA, and we decide this question as a matter of law.

¶ 28. The Board of Regents is an administrative agency within the executive branch of state government, see Wis. Stat. §§ 15.01(9), 15.91, and is responsible for the governance of the University of Wisconsin system, see Wis. Stat. § 36.09(1). The mission of the system is:

(2) [T]o develop human resources, to discover and disseminate knowledge, to extend knowledge and its application beyond the boundaries of its campuses and to serve and stimulate society by developing in students heightened intellectual, cultural and humane sensitivities, scientific, professional and technological expertise and a sense of purpose. Inherent in this broad mission are methods of instruction, research, extended training and public service designed to educate people and improve the human condition. Basic to every purpose of the system is the search for truth.

Wis. Stat. § 36.01(2). The Board of Regents is charged with "determin[ing] the educational programs to be offered in the system," and "establish[ing] policies to guide program activities to ensure that they will be compatible with the missions of the institutions of the system." Section 36.09(l)(c), (d). The Board of Regents is authorized to possess and lease property with certain exceptions not applicable here. See Wis. Stat. §36.11(1).

¶ 29. The undisputed evidence presented to the BOA is that, whatever the origins of the effort to establish a student-run radio station, the Board of Regents has chosen to acquire an FCC license in its name, lease the land in its name, and allocate funds to construct and maintain the proposed tower. The other campuses in the system have similar stations, except Madison and Parkside. The station will be run by university students, with oversight by faculty, will be available to university students generally, and will offer independent study opportunities for students as well as laboratory experiences in certain courses offered by the university. We conclude as a matter of law that the proposed tower constitutes a "governmental use" within the meaning of Dane County, Wis., Ordinances §§ 10.01(23h) (1997) and 10.123(3)(c) and, therefore, may be a conditional use in the A-l Exclusive District.

¶ 30. Accordingly, we affirm the circuit court's order reversing the decision of the BOA and ordering the BOA to reinstate the zoning administrator's decision that the proposed radio tower is a governmental use.

By the Court. — Judgment affirmed.

APPENDIX

Dane County, Wis., Ordinances § 10.123(1)-(3).(1999) provides:

A-l Agriculture District (Exclusive), (intro.) This district is in effect in those towns which make the election under sub. (l)(c) below. (Footnote omitted.)
(l)(a) Statement of purpose. The purposes of the A-l Exclusive Agriculture are to: preserve productive agricultural land for food and fiber production; preserve productive farms by preventing land use conflicts between incompatible uses and controlling public service costs; maintain a viable agricultural base to support agricultural processing and service industries; prevent conflicts between incompatible uses; reduce costs for providing services to scattered nonfarm uses; pace and shape urban growth; implement the provisions of the county agricultural plan when adopted and periodically revised; and comply with the provisions of the Farmland Preservation Law to permit eligible landowners to receive tax credits under section 71.09(11) of the Wisconsin Statutes.
(b) Lands to be included within the A-l Exclusive Agriculture. This district is generally intended to apply to lands in productive farm operations including: lands historically exhibiting good crop yields or capable of such yields; lands which have been demonstrated to be productive for dairying, livestock raising and grazing; other lands which are integral parts of such farm operations; land used for the production of specialty crops such as mint, sod, fruits and vegetables; and lands which are capable of productive use through economically feasible improvements such as irrigation.
(c)Applicability. This section shall apply only to those towns which have filed a resolution with the county clerk indicating the election of the town to come under provisions of this district. Towns which have filed resolutions indicating acceptance of the exclusive agriculture district prior to the date of this amendment shall continue to be under the provision of this section.
(2) Permitted uses, (a) Agricultural uses, (b) Residence for farm owner/operator. Substantial income must be derived from the farm operation.
(bm) Residences for owners of at least 35 acres of land who were approved by the Dane County Zoning & Natural Resources Committee under the site approval process between November 1, 1992 and April 14, 1994 shall be considered a permitted use.
(c) Secondary farm residences which are occupied by a person who, or a family at least one member of which, earns a substantial part of his or her livelihood from farm operations on the farm.
(d) Rental of existing or secondary residences no longer utilized in the operation of the farm.
(e) Day care for not more than 8 children.
(f) Utility services as defined in section 10.01(81) and small scale electric generating stations not requiring approval under section 196.941 of the Wis. Stats.
(g) Road side stands.
(h) Structures and improvements that are consistent with agricultural uses.
(i) Home occupations as defined in section 10.01(25) of this ordinance.
(3) Conditional uses in the A-l Exclusive Agriculture District, (a) Standards applicable to conditional uses in the A-l Exclusive Agriculture District. The Department of Agriculture, Trade and Consumer Protection shall be notified of the approval of any conditional use permit. In passing applications for conditional use permits the committee shall consider the following relevant factors:
1. Standards applicable to conditional uses in the A-l Agriculture District (Exclusive). Consumer Protection shall be notified of the approval of any conditional use permit. In passing applications for conditional use permits the committee shall consider the following relevant factors:
a. The statement of purposes of the zoning ordinance and the A-l District.
b. The potential for conflict with agricultural use.
c. The need of the proposed use for a location in an agricultural area.
d. The availability of alternative locations.
e. Compatibility with existing or permitted use on adjacent lands.
f. The productivity of the lands involved.
g. The location of the proposed use so as to reduce to a minimum the amount of productive agricultural land converted.
h. The need for public services created by the proposed used.
i. The availability of adequate public services and the ability of affected local units of government to provide them without an unreasonable burden.
j. The-effect of the proposed use on water or air pollution, soil erosion and rare or irreplaceable natural resources.
(b) Single family dwellings or mobile homes occupied by parents or children of the farm operator and including dependency living arrangements. Said residences shall be subject to the requirements specified in s. 10.123(2)(b).
(c) Governmental uses.
(d) Religious uses.
(e) Separation of farm dwellings and related structures which existed prior to the effective date of this ordinance and which remain after farm consolidation.
(f) Limited family businesses subject to s. 10.192.
(g) Schools.
(h) Horse boarding stables, riding stables, hay and sleigh rides.
(i) Mineral extraction operations. Mineral extraction operations require a description of the operation, a site plan and a reclamation plan and are otherwise subject to section 10.191.
(j) Sale of agricultural and dairy products not produced on the premises and incidental sale of pop and candy.
(k) Asphalt plants or ready-mix concrete plants for production of material to be used in construction or maintenance of public roads, to be limited in time to project duration.
(L) Farm family business for retail sales of bridles, saddles, grooming supplies and related items at a horse boarding or riding stable facility. Said use shall be limited to a maximum of 150 sq. ft. of floor space.
(m) The seasonal storage of recreational equipment and motor vehicles owned by private individuals other than those residing on the premises, such storage to be in existing accessory farm buildings. The storage of a dealer's inventory or the construction of any new buildings for storage shall be considered a commercial use and subject to the provisions of this ordinance.

       The appendices of both parties to this appeal contain documents concerning the application for the conditional use permit (CUP) and the proceedings before the Zoning and Natural Resources (ZNR) Committee that were not contained in the certified record of the proceedings before the Board of Adjustment (BOA) filed with the circuit court. The Board of Regents moved the circuit court for a supplementation of the record to include these and other documents, but the circuit court did not grant that request. (The court did, however, allow supplementation of certain other documents that had been presented at the hearing before the BOA but not included in the certified record.) Both parties in the trial court attached to their briefs various documents that were not part of the certified record, and those are part of the appellate record. We have taken some of the facts in the background section from these documents because they are necessary to a complete understanding of the appeal and they are not disputed by the parties. However, in our analysis of the decision of the BOA, we consider only those documents contained in the certified record of the proceeding before the BOA.

         See Appendix for Dane County, Wis, Ordinances § 10.123 (1999). All references to the Dane County, Wis, Ordinances are to the 1999 version unless otherwise noted.

       Wisconsin Stat. § 59.694(4) (1997-98) and Dane County, Wis., Ordinances § 10.26(3) authorize appeals to the BOA by any person aggrieved by any decision of the zoning administrator; the BOA is authorized to hear and decide appeals where it is alleged there is error in any decision by an administrative official in the enforcement of a zoning ordinance. See § 59.694(7)(a); § 10.26(6)(a). An appeal of the grant or denial of a conditional use permit is to the county board. See DANE COUNTY, WlS., ORDINANCES § 10.255(2)(j). Apparently the Town of Montrose appealed the ZNR's decision to the Dane County Board of Supervisors and that appeal has been stayed pending resolution of the appeal to the BOA on the interpretation of "governmental use."

       The assistant corporation counsel adopted this standard from language in a New York case that decided whether a new broadcasting facility and tower to replace an existing one should be allowed as an "accessory use" of Fordham University. See New York Botanical Garden v. Board of Standards and Appeals, 694 N.E.2d 424, 427 (N.Y. 1998). The assistant corporation counsel provided a copy of that case to the BOA, and the transcript of the discussions leading up to the BOA's decision show a concern with how the facts in the New York case compared to the evidence presented to the BOA in this case.

       If we accord due deference, we accept the board or agency's interpretation as long as another interpretation is not more reasonable; if we accord great deference, we accept the board or agency's interpretation as long as it is reasonable, even if another interpretation is more reasonable. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 284-87, 548 N.W.2d 57 (1996).

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

       Effective March 4, 1998, this sentence was added to the definition: "For purposes of this chapter, a school is not a governmental use." At the same time, schools were expressly removed from the definition of "religious use," Dane County, Wis., Ordinances § 10.01(51a), and a definition of "schools" was added that provided: "Schools means any private, public or religious school but does not include either truck driving schools or construction equipment operator schools unless expressly stated otherwise in this chapter." Section 10.01(55m). The explanation for these changes was that "schools, whether church-related or government related or private, are generally conditional uses in the same districts: this amendment only removes an artificial distinction. . . . No substantive change is intended." Ord. Amend. No. 16 (1997-98). The distinction was considered artificial because the type of school had no relation to its land use impact. See Memo from Mark Roffers, RE: Staff Description of Ordinance Amendment #16, 1997-98 (Oct. 21, 1997). Accordingly, "schools" replaced "private schools" as a separate conditional use in A-l Exclusive, see DANE COUNTY, WlS., ORDINANCES § 10.123(3)(g), and a number of others districts. These amendments have no bearing on our analysis because they occurred after the application for the CUP for the proposed tower and do not shed any light on the issue before us on this appeal.

       The Board of Regents informs us that it does not rely on the analysis of accessory use in New York Botanical Garden, 694 N.E.2d at 427, from which the assistant corporation counsel derived the standard it advocated before the BOA, see footnote 4, but relies only on the finding by the zoning body's determination in that case that "radio stations and their attendant towers are clearly incidental to and customarily found on college campuses ... all over the United Sates" and are also "customarily found in connection with an educational institution." Id. at 428. Montrose disputes the applicability of New York Botanical Garden for any purpose. We agree with both parties that the analysis in that case does not assist in interpreting "governmental use" in the Dane County Ordinances, and we further conclude that findings based on evidence in that case are not relevant to whether, on certiorari review, we affirm or reverse the decision of the BOA.

       Wisconsin Stat. § 59.69(1) provides:
      Planning and zoning authority. (1) PURPOSE. It is the purpose of this section to promote the public health, safety, convenience and general welfare; to encourage planned and orderly land use development; to protect property values and the property tax base; to permit the careful planning and efficient maintenance of highway systems; to ensure adequate highway, utility, health, educational and recreational facilities; to recognize the needs of agriculture, forestry, industry and business in future growth; to encourage uses of land and other natural resources which are in accordance with their character and adaptability; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to encourage the protection of groundwater resources; to preserve wetlands; to conserve soil, water and forest resources; to protect the beauty and amenities of landscape and man-made developments; to provide healthy surroundings for family life; and to promote the efficient and economical use of public funds. To accomplish this purpose the board may plan for the physical development and zoning of territory within the county as set forth in this section and shall incorporate therein the master plan adopted under s. 62.23 (2) or (3) and the official map of any city or village in the county adopted under s. 62.23 (6).

       Dane County, Wis., Ordinances § 10.22 provides:
      Interpretation and Application. In interpreting and applying the provisions of this ordinance they shall be held to be minimum requirements for the promotion of health, safety, convenience, morals, comfort and general welfare. It is not intended by this ordinance to interfere with or abrogate or annul any easements, covenants or similar agreements between parties, nor is it intended by this ordinance to repeal, abrogate, annul or in any way impair or interfere with any existing provisions of law or ordinance, or any rules, regulations or permits previously issued or adopted, or which may be issued or adopted according to law relating to use, occupancy, location or height of the buildings or premises; provided, however, that when this ordinance imposes a greater restriction upon the use, occupancy, location or height of buildings or premises than imposed by such existing provisions of law or ordinance, or by such rules, regulations or permits, the provisions of this ordinance shall control.

       In Green County v. Monroe, 3 Wis. 2d. 196, 87 N.W.2d 827 (1958), which Montrose cites in support of applying the governmental/proprietary distinction, the issue was whether a city's zoning ordinance applied to a county, such that the city could prohibit the construction of a county jail. The court concluded that "[t]he general words of the statutes conferring zoning powers on cities cannot be construed to include the state, or in this instance the county, when in conflict with special statutes governing the location and construction of a county jail." Id. at 202. In the course of its decision, the court quoted a treatise that summarized the majority rule that, unless a different intent is clear, " 'states, municipalities, the Federal Government and other public subdivisions, are not to be bound by the requirements of a zoning ordinance, especially where the ... buildings are used for 'Governmental' and not merely for 'Proprietary' uses.'" Id. at 199 (emphasis added) (citations omitted). The "governmental/ proprietary distinction" was not discussed by the court beyond the citation to the treatise.

         See Dane County, Wis., Ordinances § 10.12(3)(b); Dane County, Wis., Ordinances § 10.13(2)(j); Dane County, Wis., Ordinances § 10.14(2)(j); Dane County, Wis., Ordinances § 10.15(2)(k); Dane County, Wis., Ordinances § 10.155(2) (b).

       See Dane County, Wis., Ordinances § 10.12(3)(b); Dane County, Wis., Ordinances § I0.13(2)(j); Dane County, Wis., Ordinances § 10.14(2)(j); Dane County, Wis., Ordinances § 10.15 (2)(k).


author: PER CURIAM,

text:
    Donald Rumage, Plaintiff-Appellant, v. Robert M. Gullberg, Janet Gullberg, Advantage Bank F.S.B., and The Bank of Elmwood, Defendants-Respondents.

    Supreme Court

      No. 98-1276.

      Filed October 19,2000.

    2000 WI 112
    (Also reported in 617 N.W.2d 849.)

      See original opinion published in 235 Wis. 2d 279.

   PER CURIAM,

¶ 1. (on motion for reconsideration). Plaintiff-Appellant Donald Rumage moves for reconsideration of our decision in Rumage v. Gullberg, 2000 WI 53, 235 Wis. 2d 279, 611 N.W.2d 458, on grounds that the court overlooked a controlling fact appearing in the record. Rumage argues that Reinier Kemeling sold his residential property in a voluntary private sale, during a mortgage foreclosure redemption period, in contemplation of an imminent sheriffs sale. He argues that a sale under these circumstances was a sale under "compulsion," not an arms-length transaction under no compulsion that produces fair market value.

¶ 2. After careful consideration, we conclude that appellant's argument is without merit in this case. In ¶ 45 of the court's opinion we state: "Judge Simanek found no evidence of collusion or fraud between Kemel-ing and Burmeister." This sentence is herewith amended to read: "Judge Simanek found no evidence of compulsion, collusion or fraud between Kemeling and Burmeister." The record does not demonstrate that the circuit court's finding was clearly erroneous.

¶ 3. The motion for reconsideration is denied without costs.