author: WEDEMEYER, P.J.

text:
    Lake Bluff Housing Partners, Plaintiff-Appellant, v. City of South Milwaukee, Defendant-Respondent.
    Court of Appeals

      No. 00-1958.

      Submitted on briefs April 3, 2001.

    Decided June 12, 2001.

    2001 WI App 150
    (Also reported in 632 N.W.2d 485.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Fox, O'Neill & Shannon, S.C. by Bruce C. O'Neill and Diane Slomowitz, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Joseph G. Murphy, South Milwaukee.

      Before Wedemeyer, P.J., Fine and Curley, JJ.

      Petition to review denied.

   WEDEMEYER, P.J.

¶ 1. Lake Bluff Housing Partners appeals from a judgment entered in favor of the City of South Milwaukee, ordering Lake Bluff to raze and remove two apartment buildings located on the shoreline in South Milwaukee. Lake Bluff claims the trial court erred when it found that there were no compelling equitable reasons to allow the Lake Bluff buildings to remain on the property. Because the trial court balanced all of the equitable considerations under Forest County v. Goode, 219 Wis. 2d 654, 681-85, 579 N.W.2d 715 (1998), there was no erroneous exercise of discretion. We therefore affirm.

I. BACKGROUND

¶ 2. This case has been in litigation for over six years, including two appeals to this court and one to the Wisconsin Supreme Court. A complete history of the facts may be found in the earlier appeals. See Lake Bluff Housing Partners v. City of South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995) (Lake Bluff II), rev'g 188 Wis. 2d 230, 525 N.W.2d 59 (Ct. App. 1994); see also Lake Bluff Housing Partners v. City of South Milwaukee, 222 Wis. 2d 222, 588 N.W.2d 45 (Ct. App. 1998) (Lake Bluff III). We offer a brief summary of the pertinent facts.

¶ 3. Lake Bluff purchased the property in question in December 1992. At that time, the parcel was zoned C-2, which allowed the property to be used for multi-family buildings. Before any building permits were issued, however, South Milwaukee rezoned the property to R-A, which would have allowed only single family residences to be built on the property. Lake Bluff sued, claiming that it had vested rights in the prior zoning classification because it had purchased the property when it was classified C-2, and because it had submitted its requests for building permits while the property was classified C-2. The trial court agreed that Lake Bluff had vested rights and, on April 29, 1994, the trial court issued a writ of mandamus directing South Milwaukee's building inspector to issue the permits necessary for the construction of two multi-family apartment buildings. South Milwaukee issued the permits, pursuant to the trial court order.

¶ 4. The City of South Milwaukee ("City") filed a notice of appeal, asking this court to quash the writ. We affirmed the trial court's decision, agreeing that Lake Bluff had vested rights. Lake Bluff Housing v. South Milwaukee, 188 Wis. 2d 230, 233, 525 N.W.2d 59 (Ct. App. 1994) (Lake Bluff I). Our supreme court, however, accepted the City's petition for review and, on November 20,1995, it reversed our decision, ordering the writ of mandamus to be quashed. Lake Bluff II, 197 Wis. 2d at 182. The supreme court held that because Lake Bluff "never submitted an application for a building permit conforming to the zoning and building code requirements in effect at the time of the application," it did not obtain any vested rights. Id.

¶ 5. While this matter was being appealed, Lake Bluff decided to finish construction on the project. Lake Bluffs decision was based on several factors, including its belief that it would lose substantial tax credits if the buildings were not completed by December 1994, and the fact that it believed it would win on appeal. The buildings were completed and occupancy permits were issued in August and September 1995.

¶ 6. When the supreme court remanded the matter with instructions to quash the writ, Lake Bluff filed a declaratory judgment action seeking to enjoin the City from revoking the building and occupancy permits, and from issuing any orders to raze the buildings. Lake Bluff argued that the City's failure to seek a stay during the pendency of the appeal should estop the City from revoking the permits or razing the buildings. The City filed a counterclaim against Lake Bluff, asking the court to declare that the City could lawfully revoke the building and occupancy permits and could require Lake Bluff to remove the buildings located on the property so as to conform to the present R-A single-family zoning. The parties filed motions seeking summary judgment. The trial court agreed with Lake Bluff.

¶ 7. The City appealed to this court, and we reversed the trial court's decision. We held that " 'a building permit grants no right to an unlawful use,'" Lake Bluff III, 222 Wis. 2d at 227 (quoting Lake Bluff II, 197 Wis. 2d at 180), and the City's failure to seek a stay pending appeal does not bar it from enforcing its zoning requirements, id. at 229-30. This court pointed out that Lake Bluff "gambled on a favorable outcome" when it decided to proceed with its construction, id. at 228, and that "those who build in violation of lawful zoning regulations have no refuge from the requirements of [Wis. Stat. §62.23(8)[] . . . merely because construction is completed before lawfulness of the regulations is determined." Id. We stated that to rule otherwise "would encourage construction in violation of zoning codes." Id. at 229. We held that the City was not estopped from revoking the building permits and ordering the property razed. We remanded, however, to the trial court to engage in a Goode analysis of whether "there are compelling equitable reasons" which would make this one of "those rare cases" where the requested order of abatement should not be issued, Goode, 219 Wis. 2d at 684; Lake Bluff III, 222 Wis. 2d at 232.

¶ 8. On remand, the trial court engaged in the equitable analysis, and concluded that this was not one of the rare cases to not issue an order of abatement because there were no compelling equitable reasons requiring such an outcome. Accordingly, on June 6, 2000, the trial court issued a judgment ordering Lake Bluff to "raze and remove the two apartment buildings." Lake Bluff now appeals from that judgment.

II. DISCUSSION

¶ 9. Under our remand, we directed the trial court to weigh the equitable considerations discussed in Goode. Goode provided that: "[T]he circuit court, sitting in equity, should weigh heavily the factors considered by boards of adjustment in determining unnecessary hardship, as well as traditional equitable considerations. Equitable defenses, such as laches, estoppel, or unclean hands should also be weighed in appropriate cases." Id., 219 Wis. 2d at 681-82 (citation and footnotes omitted).

¶ 10. Lake Bluff claims the trial court erred on remand, citing three reasons why the abatement order should not have been issued: (1) the City had unclean hands; (2) abatement would cause unnecessary hardship; and (3) equity favored allowing the buildings to remain. Determining the equities of the situation presents an issue that is left to the discretion of the trial court. Id. at 670. Thus, our review is limited to whether or not the trial court erroneously exercised its discretion when it balanced the totality of the circumstances in this case. Id. We conclude that the trial court did not erroneously exercise its discretion. In examining the trial court's decision, we will uphold any findings of fact that are not clearly erroneous. WlS. Stat. § 805.17(2). We will also determine whether the trial court applied the pertinent law in addressing the equities of the situation. We address each of Lake Bluff s claims in turn.

A. Clean Hands.

¶ 11. Lake Bluff claims that the trial court failed to independently review its assertion that the City acted with unclean hands. Instead, Lake Bluff asserts that the trial court simply referred to and adopted facts set forth in the earlier appellate decisions. Lake Bluff contends that the trial court erroneously exercised its discretion when it did not conclude that the City acted with unclean hands. We are not persuaded.

¶ 12. Lake Bluff claims that the City had unclean hands because it failed to respond to Lake Bluffs inquiries about the plans submitted for approval, and because the City enacted a building moratorium in 1993 while it was considering a request to rezone the property. The trial court addressed both concerns in its twenty-seven page written opinion.

¶ 13. The trial court first set forth the pertinent law, citing Security Pacific National Bank v. Ginkowski, 140 Wis. 2d 332, 410 N.W.2d 589 (Ct. App. 1987):

For relief to be denied a plaintiff in equity under the "clean hands" doctrine, it must be shown that the alleged conduct constituting "unclean hands" caused the harm from which the plaintiff seeks relief. . . . "[I]t must clearly appear that the things from which the plaintiff seeks relief are the fruit of its own wrongful or unlawful course of conduct."

Id. at 339 (citations omitted). The trial court found that the " 'conduct constituting unclean hands' . . . was not the building moratorium or the failure to respond to Lake Bluffs inquiries. Rather, it was Lake Bluffs decision to build in the face of South Milwaukee's challenge to the legality of the project." The trial court further found that although the City did contribute to making the Lake Bluff buildings nonconforming by changing the zoning classification and by challenging the legality of the project, neither action was "wrongful or unlawful . . . conduct." The trial court was correct. Under the circumstances presented here, the City is afforded the discretion to change a zoning classification, and is permitted to challenge the legality of Lake Bluffs project. Neither action makes the City's hands unclean.

¶ 14. The trial court's decision was based in part upon Lake Bluffs own actions. The trial court found that Lake Bluffs decision to build the apartment buildings on the R-A zoned property was "a business decision," based primarily on "potential financial gain." The trial court found that there "were signs along the way which warned Lake Bluff of the magnitude of the risk it was taking." These signs included the City's appeal, the language in the building permits indicating the permits were issued solely to comply with the trial court's order, the language in the occupancy permits stating that the permits were "subject to revocation," Judge Ralph Adam Fine's dissent in Lake Bluff I, and the supreme court's decision to grant the City's petition for review. The trial court found, as a result, that the harm was caused by Lake Bluff s business decision to proceed with construction before the final legality was determined. In essence, the trial court concluded that Lake Bluff was the party with unclean hands. The trial court's findings were not clearly erroneous, and its decision was reasonable.

B. Unnecessary Hardship.

¶ 15. Lake Bluff also claims that the trial court's decision to order the buildings razed was erroneous because such action would cause "unnecessary hardship." We disagree.

¶ 16. The trial court addressed the "unnecessary hardship" factor in its written decision, citing State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), which sets forth the standard applied to that term. In that case, the supreme court found that an unnecessary hardship exists when "no reasonable use of the property [exists] without a variance." Id. at 413. The court explained that: "the proper test is not whether a variance would maximize the economic value of the property, but whether a feasible use is possible without the variance." Id.

¶ 17. Here, the trial court found that a reasonable use for the property in compliance with the R-A zoning was possible. The City submitted evidence that the property could be divided into ten separate parcels for construction of single-family residences. Lake Bluff argues that the City's plan to build ten single-family homes on this piece of property was unreasonable and they would never provide the economic value that the apartment buildings would provide.

¶ 18. The standard, however, is not whether a variance would provide the greatest economic value, but whether any reasonable use for the property exists which would comply with the zoning classification. The trial court found in the City's favor on this issue, and there is evidence in the record to support that decision.

C. General Equities.

¶ 19. Lake Bluff also contends that the trial court erroneously exercised its discretion for several additional reasons, which we group together in a category of "general equities." First, Lake Bluff argues that the trial court ignored the devastating financial impact it would incur if the buildings were destroyed. We disagree.

¶ 20. Lake Bluff argues that its multi-million dollar investment in the property should outweigh the other factors, and that the trial court's disregard of this factor is wrong. Lake Bluff indicates that it invested $4.2 million into the property and to raze the buildings will cost an additional $350,000. Lake Bluff suggests that this factor alone is sufficient to outweigh all the other equitable factors. The trial court disagreed and so do we.

¶ 21. Lake Bluffs financial investment is a factor to consider under Goode. The trial court considered the factor, and found that Lake Bluffs financial investment was an economic factor which favored Lake Bluff. However, the trial court found that this factor alone was insufficient to justify equitable relief and, under the totality of the circumstances, this factor does not outweigh the other equitable factors favoring the City. The trial court reasoned that a party should not be able to "buy a variance" by making financial expenditures. Lake Bluff could have reduced its financial exposure if it would have delayed construction until the litigation in this case was completed. Lake Bluff gambled on a favorable outcome and lost. The trial court determined that Lake Bluffs business choice to proceed with construction, despite the City's appeal, resulted in the self-created financial exposure. The trial court's decision was reasonable.

¶ 22. Second, Lake Bluff claims the trial court failed to adequately consider the interests of the tenants living in the building. Contrary to Lake Bluffs claim, the trial court did properly consider the tenants' interests. In addressing this factor, the trial court found that although the situation of the tenants cannot be ignored, Lake Bluff may not convey a tenancy interest for the use of an apartment in a single-family area. The trial court also found that the tenants moved into the apartments knowing about the "rezoning litigation." Further, the trial court's order provided that the tenants would be permitted to finish out their leases before moving. The trial court properly considered this factor and reached a reasonable compromise so as to limit the harshness of the situation on Lake Bluff's tenants.

¶ 23. Third, Lake Bluff refers to WHEDA's (Wisconsin Housing and Economic Development Authority) involvement in support of its claim that there is an interest in providing affordable housing in South Milwaukee. The trial court addressed this factor, and concluded that WHEDA's involvement in this project is strong evidence of the state's interest in providing affordable housing at the property; nonetheless, WHEDA's approval is premised on compliance with local codes. The trial court reasoned that because Lake Bluff did not comply with the local codes, WHEDA's award of credits would be withdrawn and, therefore, would not favor granting a variance.

¶ 24. Lake Bluff also suggests that WHEDA's award of credits was a large factor in its inability to forego building until the legality of the issue had been resolved. Lake Bluff argues that WHEDA's tax credit award would disappear if Lake Bluff failed to complete construction of the project by December 1994. In other words, Lake Bluff could not wait until the litigation was resolved. It had to build immediately or lose the tax credits. The trial court addressed this factor, noting that the December 1994 deadline was not met. Occupancy permits were not issued until August and September 1995. Thus, Lake Bluffs contention that construction had to begin because the project needed to be completed by December 1994 was not correct. Lake Bluff failed to meet the deadline, and still secured tax credits for the project. Accordingly, this factor does not favor Lake Bluff.

¶ 25. Finally, the trial court considered a myriad of other equitable factors. First, it considered whether Lake Bluffs violations were minor; it found that they were not. Second, the trial court addressed whether the City's gain outweighed Lake Bluffs loss; it found that it did. In making this determination, the trial court reasoned that municipalities have the power to adopt comprehensive zoning ordinances, see generally State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451 (1923), and that zoning may be the most essential function performed by local government in that it permits the municipality to protect its citizens' quality of life, Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting). We endorse this proposition.

¶ 26. Third, the trial court addressed whether an abatement order would result in non-economic gain to the City; it found that it would. The trial court pointed out that compliance with the zoning classification on the property would result in less crowding, more open area and green space, and greater access to air and light. The vigilant protection of our shorelands is also a substantial interest, and it is advanced by the trial court's ruling. Goode, 219 Wis. 2d at 685. The City has a legitimate interest in enforcing its valid zoning laws.

¶ 27. The trial court's written decision provides an extensive and thorough consideration of all the appropriate factors. It considered the totality of the circumstances when it weighed the equities. It balanced the business judgment risk undertaken by Lake Bluff against the City's interest in enforcing zoning laws. The decision reflects a comprehensive, reasonable decision.

¶ 28. The trial court further considered what remedy would be appropriate. The trial court acknowledged that removal of the buildings constituted the most drastic option and, therefore, considered whether some other remedy might suffice. The trial court addressed whether the buildings could be modified in some fashion so as to comply with the R-A zoning classification. It found that this was not possible. Next, the trial court considered imposing a fine in lieu of removing the buildings. The trial court found that levying a fine against Lake Bluff for the zoning violation would ignore the interest the public has in enforcing the zoning laws. The trial court reasoned that the interest would be "compromised if the payment of a fine can be a substitute for compliance with the zoning," and would constitute a "purchase" of a variance, against which Goode explicitly warned. Id. at 680. Accordingly, the trial court concluded that the only remedy available was an abatement order. The trial court's findings are not clearly erroneous and its ruling is reasonable.

III. CONCLUSION

¶ 29. In sum, we conclude that the trial court properly engaged in the equitable analysis under Goode. Its written decision addresses all the pertinent factors. The trial court also emphasized that it is only in a "rare case" when "compelling equitable reasons" exist that the requested order of abatement should not be issued. The municipalities, and the citizens who reside there, have a right to enforce their zoning laws. Although this case presented an unfortunate financial conundrum for Lake Bluff, ultimately it was Lake Bluffs own business decision, driven by the potential for financial gain, which resulted in proceeding with construction despite the uncertainty of the outcome, causing the ultimate financial loss. Under the totality of the circumstances presented, this is not one of those rare cases where equity overcomes the City's legal right and duty to secure compliance with its zoning classification.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 62.23(8) provides that buildings erected in violation of the applicable zoning regulations are subject to ”abate[ment] and remov[al]."

       Lake Bluff argues that there is evidence in the record which contradicts the trial court's finding that single-family residences are a reasonable alternative use for the property. Such evidence, however, does not alter our conclusion that the trial court's factual findings are not clearly erroneous because there is evidence in the record to support the findings. Mere disagreement with the trial court's findings is not a basis for error.

       In a related argument, Lake Bluff suggests that an abatement order cannot be issued without joining the tenants and mortgagee as necessary parties under Wis. Stat. § 906.04(11). Lake Bluffs suggestion, however, is untimely. Lake Bluff made this argument for the first time during a hearing on the form of the judgment in May 2000. Claims that a necessary party have not been joined are required to be made by responsive pleading, if one is required, or by motion. WlS. Stat. § 802.06(2). This procedure was not followed. Moreover, the City asserts that the mortgagee and the tenants were aware of this action as evidenced in part by the tenants' participation in the hearing. Lake Bluffs reply brief does not refute the City's assertion and, therefore, it is admitted. Charolais Breeding Ranches, Ltd. v. FPC Securities, 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Consequently, even though not joined, these parties were aware of, and participated in, the proceedings. The trial court's abatement order was properly issued.

       Moreover, this court ruled that WHEDA's involvement does not entitle Lake Bluff to special treatment. Lake Bluff III, 222 Wis. 2d at 231 n.3.


source: Caselaw Access Project

author: NETTESHEIM J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Alfredo Ramirez, Defendant-Appellant.

    Court of Appeals

      No. 00-2605-CR.

      Submitted on briefs May 11, 2001.

    Decided June 13, 2001.

    2001 WI App 158
    (Also reported in 633 N.W.2d 656.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Elizabeth Cavendish-Sosinski of Pewaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and William C. Wolford, assistant attorney general.
    Before Brown, P.J., Nettesheim and Anderson, JJ.

      Petition to review denied.

   NETTESHEIM J.

¶ 1. Alfredo Ramirez appeals from a judgment of conviction for misappropriating the personal identifying information of another pursuant to Wis. Stat. § 943.201(2) (1999-2000). This offense is sometimes referred to as theft of identity. Ramirez contends that the statute as applied in this case represents an ex post facto law in violation of article I, section 12 of the Wisconsin Constitution. Like the trial court, we hold that the statute creates a "continuing offense" under Toussie v. United States, 397 U.S. 112 (1970), and John v. State, 96 Wis. 2d 183, 291 N.W.2d 502 (1980). Therefore, the application of the statute did not violate Ramirez's ex post facto constitutional protection.

FACTS AND PROCEDURAL HISTORY

¶2. The facts are brief and undisputed. At all times relevant to this case, Ramirez was an illegal resident of the United States and did not have a social security number. On September 2, 1997, Ramirez obtained employment at Trek Bike in Walworth county. On June 4, 1999, a human resources manager at Trek Bike reported to the police that a list of people with corresponding social security numbers had been discovered in the desk of a former employee who had been fired. One of the social security numbers was listed to a Jose Ramirez. A check with the social security administration revealed that this social security number was actually assigned to Benjamin Wulfen-stein of Elko, Nevada. In an interview with the police, Ramirez stated that Jose Ramirez was his cousin and that Jose had sent him the social security card two years earlier. Ramirez admitted that he had used Wulfenstein's social security number when he applied for employment at Trek Bike. Trek Bike terminated Ramirez on July 6,1999.

¶ 3. Based on this information, the State charged Ramirez with intentionally misappropriating the personal identifying information of an individual to obtain a thing of value without the individual's consent pursuant to Wis. Stat. § 943.201(2). The complaint and information alleged that the offense occurred between the dates of Ramirez's employment, September 2,1997 to July 6,1999.

¶ 4. Relying on the fact that Wis. Stat. § 943.201(2) did not become effective until April 27, 1998, after the date he obtained employment at Trek Bike, Ramirez moved to dismiss the information. The State responded with an amended information that alleged the effective date of the statute as the commencing date of the offense. The termination date of the offense remained the same as in the original information — July 6, 1999. After hearing the arguments of counsel, the trial court ruled that the offense was a "continuing charge, and every Friday when the checks were cut, he got money; and it was upon his representation that he . . . possessed lawfully this Social Security Number." The court denied Ramirez's motion to dismiss. Ramirez then pled guilty and he takes this appeal.

DISCUSSION

¶ 5. Ramirez contends that Wis. Stat. § 943.201(2), as applied against him in this case, is an ex post facto law contrary to article I, section 12 of the Wisconsin Constitution. An ex post facto law includes "any law which was passed after the commission of the offense for which the party is being tried." State v. Thiel, 188 Wis. 2d 695, 701, 524 N.W.2d 641 (1994) (citation omitted).

¶ 6. Ramirez raises two closely related ex post facto arguments. First, he contends that even if Wis. Stat. § 943.201(2) creates a continuing offense, the only thing of value that he obtained as a result of his unauthorized use of Wulfenstein's social security number was the opportunity of employment with Trek Bike. Since this event occurred before the effective date of the statute, Ramirez argues that the application of the statute represents an ex post facto law. If we reject this argument and conclude that Ramirez obtained something of value after the effective date of the statute, Ramirez argues that his conduct still was not criminal since § 943.201(2) does not create a continuing offense.

¶ 7. We first determine whether Ramirez obtained a thing of value as the result of his unauthorized use of Wulfenstein's social security number. Ramirez contends that all he obtained was a job, which he describes as "the opportunity to work." He says, "A job has no intrinsic value if it is obtained and then the employee squanders the opportunity and never begins to work. What makes a job valuable is the opportunity to work hard and earn money." We think this is far too narrow a concept of the value of Ramirez's employment at Trek Bike. True, Ramirez obtained employment at Trek Bike. But what Ramirez ultimately sought and obtained was the compensation and other economic benefits that flowed from the employment. Obviously these were things of value within the meaning of § 943.201(2). And since Ramirez obtained these things after the effective date of the statute, we hold that the statute as applied was not an ex post facto law.

¶ 8. That brings us to Ramirez's second ex post facto argument, that Wis. STAT. § 943.201(2), as applied in this case, represents an ex post facto law because the statute does not create a continuing offense. The question of whether a particular criminal offense is continuing in nature is primarily one of statutory interpretation. John, 96 Wis. 2d at 188 (citing Toussie, 397 U.S. at 125). Statutory construction presents a question of law that we review de novo. Grosse v. Protective Life Ins. Co., 182 Wis. 2d 97, 105, 513 N.W.2d 592 (1994).

¶ 9. In John, our supreme court quoted the United States Supreme Court's decision in Toussie when addressing the criteria for determining whether a particular statute creates a continuing offense:

These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion or the nature of the crime involved is such that. . .[the legislature] must assuredly have intended that it he treated as a continuing one. Tous-sie v. United States, 397 U.S. at 115.

John, 96 Wis. 2d at 189-90 (emphasis added). The John court also stated, "In contrast to the instantaneous nature of most crimes, a continuing offense is one which consists of a course of conduct enduring over an extended period of time." Id. at 188. Citing to other jurisdictions, the court noted that the continuing offense doctrine encompassed a wide variety of criminal activity including embezzlement, conspiracy, repeated failure to file reports, theft by receiving, and the failure to make and keep records of controlled substances. Id. at 189.

¶ 10. Wisconsin Stat. § 943.201(2) makes it a crime to intentionally use the personal identifying information or document of another for purposes of obtaining "credit, money, goods, services or anything else of value" without the consent of the other person and by representing that the actor is the other person or is acting with the consent or authorization of such person. This crime has four elements: (1) the defendant's intentional use of the personal identifying information or document; (2) the defendant's use of such information to obtain credit, money, goods, services, or anything else of value; (3) the defendant's use of such information without the authorization or consent of the other person; and (4) the defendant's intentional representation that he or she was the other person or acted with such person's authorization or consent. WlS JI — CRIMINAL 1458.

¶ 11. The first, third and fourth elements of this offense are not germane to the "continuing offense" issue in this case. Ramirez concedes that he intentionally used Wulfenstein's social security number to conceal his illegal resident status and his true identity in order to obtain employment at Trek Bike and that he did so without Wulfenstein's consent or authorization. Rather, it is the second element that lies at the heart of this case. This element requires that the defendant "obtain credit, money, goods, services or anything else of value."

¶ 12. While WlS. Stat. § 943.201(2) may be clear enough as to what it criminalizes, it is not so clear as to whether it creates a continuing offense. Statutory language unambiguous on its face can sometimes be rendered ambiguous by the context in which it is sought to be applied. Roehl v. Am. Family Mut. Ins. Co., 222 Wis. 2d 136, 145, 585 N.W.2d 893 (Ct. App. 1998).

¶ 13. In John, the welfare fraud statute expressly spoke to a situation where the defendant "continues to receive assistance." John, 96 Wis. 2d at 190. John teaches that one of the considerations as to whether a statute creates a continuing offense is whether the explicit language of the statute compels that conclusion. Id. Here, Wis. Stat. § 943.201(2) does not contain any express or explicit language describing the offense as "continuous." This suggests that the statute does not create a continuing offense.

¶ 14. However, WlS. Stat. § 943.201(2) requires that as a consequence of the identity theft, the defendant must have obtained "credit, money, goods, services or anything else of value." Common sense would advise that in most cases of identify theft, that consequence will be a recurring, not an isolated, event. This suggests that the statute creates a continuing offense.

¶ 15. We therefore conclude that the statute is ambiguous as to whether it creates a continuing offense. In that situation, we must ascertain the legislative intent from the language of the statute in relation to its scope, history, context, subject matter and object intended to be accomplished. Roehl, 222 Wis. 2d at 142. The legislative history of WlS. Stat. § 943.201(2) does not expressly speak to the issue of whether the legislation creates a continuous offense. However, the legislative history includes an article from the Los Angeles Times concerning proposed identify theft legislation in California. The article was made a part of the legislative history file of § 943.201(2) by the author of the proposed Wisconsin legislation. This article is informative because it speaks of the ongoing harm inflicted on victims of identify theft.

With just a few key information coordinates, a crook can start phone service in your name, open charge cards, take over your existing credit lines and change the address on hijacked accounts so statements go to a mail drop.
The actual number of consumers affected and volume of loss have increased, however, as the industry surges toward $2 trillion a year in transactions. Incidents of identity fraud — the kind that leaves consumers most helpless — were reported at one major company to have risen 540% in the U.S. during the first half of 1995, and industrywide it is estimated to account for as much as $90 million of the $1.5 billion written off as card fraud losses, according to various industry sources.

Patrie Hedlund, Identity Crisis, L.A. Times, Mar. 11, 1997.

¶ 16. This history reveals that Wis. Stat. § 943.201(2) was targeted at much more than the isolated act of misappropriating the personal identifying information of another or the initial receipt by the defendant of a thing of value as a result of the misappropriation. Rather, the legislation addressed a problem of much larger proportion with far greater consequences. Given this scope, history, context, and legislative objective of the statute, we conclude that the legislature envisioned that the theft of a person's identity would, in many instances, produce recurring episodes in which the defendant would obtain things of value as a result of the original act of identity theft. Hence, the statutory language, "to obtain credit, money, goods, services or anything else of value." We therefore conclude that the statute creates a continuing offense.

¶ 17. From this it follows that Ramirez's conduct in this case violated Wis. Stat. § 943.201(2) after the statute became effective. As a result of his unauthorized use of Wulfenstein's social security number, Ramirez obtained money in the form of wages from Trek Bike over the course of his employment and after the effective date of the statute. Absent Ramirez's unauthorized use of Wulfenstein's social security number, Trek Bike could not have legally hired Ramirez. See 8 U.S.C.A. § 1324 (West 1999). Because § 943.201(2) is a continuing offense and because Ramirez's criminal conduct occurred after the statute became effective, the application of the statute against Ramirez did not violate the ex post facto provisions of the Wisconsin Constitution.

CONCLUSION

¶ 18. We hold that Ramirez obtained money in the form of wages, not merely the opportunity for employment, as the result of his unauthorized use of Wulfenstein's personal identifying information. We also hold that Wis. Stat. § 943.201(2) creates a continuing offense. Since Ramirez's identity theft allowed him to obtain wages after the effective date of the statute, we hold that the application of the statute did not violate the ex post facto provisions of the Wisconsin Constitution.

By the Court. — Judgment affirmed.

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

       Wisconsin Stat. § 943.201(2) reads as follows:
      Whoever intentionally uses or attempts to use any personal identifying information or personal identification document of an individual to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual is guilty of a Class D felony.

       We could invoke the guilty plea/waiver rule against Ramirez since he pled guilty to the charge after the trial court rejected his constitutional challenge. See State v. Schroeder, 224 Wis. 2d 706, 711, 593 N.W.2d 76 (Ct. App. 1999). However, the guilty plea/waiver rule is one of judicial administration, not one of the court's power to act. See State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). In prior cases, the supreme court has chosen not to invoke waiver where the defendant has entered a guilty plea but presented a constitutional challenge. See Flores v. State, 69 Wis. 2d 509, 510, 230 N.W.2d 637 (1975); Mack v. State, 93 Wis. 2d 287, 296-97, 286 N.W.2d 563 (1980). This is especially so where there are no factual questions presented, the parties have fully briefed the issue and the matter is of statewide importance. Mack, 93 Wis. 2d at 296-97.
      Those considerations prompt us to not invoke the guilty plea/waiver rule in this case. Not only have the parties fully briefed the issue on appeal, but they also litigated the issue in the trial court. In addition, the question of whether WlS. Stat. § 943.201(2) is a continuing offense is one of first impression and is of statewide importance.

       Article I, section 12 of the Wisconsin Constitution states, "No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate."

       An ex post facto law also includes a law which "inflicts a greater punishment than the law annexed to the crime at the time it was committed ... or which alters the situation of the accused to his disadvantage." State v. Thiel, 188 Wis. 2d 695, 701, 524 N.W.2d 641 (1994) (citation omitted; emphasis omitted).


author: ANDERSON, J.

text:
    State of Wisconsin ex rel. Michael J. Gendrich, Petitioner-Appellant, v. Jon Litscher, Secretary, Department of Corrections, Jerry Smith, Chairman, Wisconsin Parole Commission, and Judy Smith, Warden, Oshkosh Correctional Institution, Respondents-Respondents.
    Court of Appeals

      No. 00-3527.

      Submitted on briefs May 23, 2001.

    Decided June 13, 2001.

    2001 WI App 163
    (Also reported in 632 N.W.2d 878.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs oí Michael J. Gendrich, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the brief of Karla Z. Keckhaver, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. In this certiorari action, Michael J. Gendrich seeks judicial review of the decision of the Wisconsin Parole Commission denying him release on his mandatory parole date because he is a risk to the community and refuses to complete recommended sex offender treatment programs. While we agree with the general proposition that an inmate has a liberty interest, protected by due process, to be released on his or her mandatory release date, we disagree with Gendrich that this proposition gives him any relief. Gendrich is serving time for a serious felony and is subject to the presumptive mandatory release date law that grants the Commission discretion in deciding whether to release a serious felon on his or her mandatory release date. Because a discretionary act cannot create a legitimate expectation of release on the presumptive mandatory release date, we affirm the circuit court's dismissal of Gendrich's writ of certiorari.

¶ 2. Gendrich was originally sentenced to seven years in prison after he was convicted of first-degree sexual assault of a child. Under the criteria of Wis. Stat. §302.11(lg) (1999-2000), his presumptive mandatory release date was computed to be June 25, 2000. Gendrich appeared before the Commission on March 14, 2000, for parole review, and the Commission decided to hold him beyond his mandatory release date of June 25, 2000, because of "risk to the community and/or refusal to complete recommended treatment." On May 9, 2000, Gendrich filed a petition for a writ of certiorari claiming a liberty interest in being released on his mandatory release date and challenging the Commission's action on several grounds. He alleged that the Commission misused its discretion by relying on improper information in his file and failing to state sufficient reasons for its decisions. He also alleged that the Commission violated the Eighth Amendment, equal protection and double jeopardy by basing its decision on his failure to participate in recommended treatment. After the Commission made a return to the writ, the circuit court issued a terse written decision denying Gendrich any relief.

¶ 3. On appeal, Gendrich abandons his Eighth Amendment and double jeopardy arguments and focuses his energy on a claim that he was denied due process and equal protection. He argues that he was denied due process because he was not permitted to make corrections in his prison record, and he was denied legal representation. He also argues that the Commission denied him parole based upon inaccurate information that he refused to participate in recommended treatment programs.

¶ 4. The scope of our review of a decision of the Commission is identical to that of the circuit court. Our review is limited to determining: (1) whether the Commission kept within its jurisdiction; (2) whether it acted according to 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 reasonably make the order or determination in question. State ex rel. Saenz v. Husz, 198 Wis. 2d 72, 76-77, 542 N.W.2d 462 (Ct. App. 1995). The prisoner has the burden of proving by a preponderance of the evidence that the actions of the Commission were arbitrary and capricious. State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 783, 601 N.W.2d 287 (Ct. App. 1999). If the prisoner fails to sustain the burden, the courts will not interfere with the Commission's decision. State ex rel. Cutler v. Schmidt, 73 Wis. 2d 620, 623, 244 N.W.2d 230 (1976).

¶ 5. Gendrich asserts that he has a legitimate liberty interest in being released on his mandatory parole eligibility date and that that interest is entitled to due process protections. The State concedes that there is a protectible liberty interest in mandatory parole, but that there is no such interest in discretionary or presumptive parole.

¶ 6. "[W]hile the Due Process Clause standing alone, creates no cognizable liberty interest in being granted parole, a state may create such an interest by state law." Felce v. Fiedler, 974 F.2d 1484, 1490 (7th Cir. 1992). The general state of the law on when there is a protectible liberty interest in a parole release decision was summarized in Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir. 1982):

It is axiomatic that before due process protections can apply, there must first exist a protectible liberty or property interest. While an inmate does not have a protectible expectation of parole by virtue of the mere existence of a parole system, the Supreme Court in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L.Ed.2d 668 (1979), concluded that a specific statute governing parole release determinations may give rise to a liberty interest entitled to constitutional protection if it is phrased in such a way as to provide the inmates with a legitimate expectation of release on parole. In Greenholtz, the Court emphasized that their decision rested on the "unique structure and language" of the applicable Nebraska statute and cautioned that whether any other statute created a liberty interest would have to be decided on a case-by-case basis. (Citations omitted.)

¶ 7. In general, Wisconsin's parole system provides for a discretionary parole scheme and a mandatory parole scheme. Under the Greenholtz analysis, Wisconsin's discretionary parole scheme does not create a protectible liberty interest in parole. Shea v. Smith, 248 F.3d 1159 (TABLE), No. 00-1229, 2000 WL 1875733 (7th Cir. 2000). On the other hand, Wisconsin's mandatory parole scheme does create a protectible liberty interest. Felce, 974 F.2d at 1492.

¶ 8. These general propositions do not assist Gendrich because he is assigned to a third parole scheme: presumptive mandatory parole. The presumptive mandatory release scheme provides that for a prisoner sentenced for a serious felony between April 21, 1994, and December 31, 1999, the mandatory release date is presumptive. Gendrich fits into this category because he was sentenced on February 12, 1996, after being found guilty of violating Wis. Stat. § 948.02(1) (1995-96). The statue governing presumptive mandatory release determinations provides:

(b) Before an incarcerated inmate with a presumptive mandatory release date reaches the presumptive mandatory release date specified under par. (am), the parole commission shall proceed under s. 304.06(1) to consider whether to deny presumptive mandatory release to the inmate. If the parole commission does not deny presumptive mandatory release, the inmate shall be released on parole. The parole commission may deny presumptive mandatory release to an inmate only on one or more of the following grounds:
1. Protection of the public.
2. Refusal by the inmate to participate in counseling or treatment that the social service and clinical staff of the institution determines is necessary for the inmate, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the inmate is a serious child sex offender as defined in s. 304.06(lq)(a).
(c) If the parole commission denies presumptive mandatory release to an inmate under par. (b), the parole commission shall schedule regular reviews of the inmate's case to consider whether to parole the inmate under s. 304.06(1).
(d) An inmate may seek review of a decision by the parole commission relating to the denial of presumptive mandatory release only by the common law writ of certiorari.

Wis. Stat. § 302.11(lg).

¶ 9. Whether this scheme creates a protectible interest in parole requires an analysis of the language and structure of the statute to learn if the State intended to create a legitimate expectation that a prisoner would be released on his or her assigned presumptive mandatory release date. See Felce, 974 F.2d at 1490. This analysis considers whether the statute uses mandatory or discretionary language and otherwise limits the discretion of the parole commission. See id. The presumptive mandatory release scheme does not create a protectible expectation of parole for several reasons. First, in making the presumptive mandatory release determination, the Commission's discretion is virtually unlimited. Wis CONSIN Stat. § 302.11(lg)(b) explicitly requires the Commission to proceed under Wis. Stat. § 304.06(1), which grants the Commission discretionary powers to administer the discretionary parole scheme. Second, the statute uses discretionary language (e.g., "may deny presumptive mandatory release") rather than mandatory language (e.g., "shall").

¶ 10. We are satisfied that the statute establishing the presumptive mandatory release scheme does not create a legitimate liberty interest in being paroled. The statute permits the Commission to deny mandatory release to otherwise eligible prisoners when, in its discretion, the prisoner either poses a risk to the public or refuses to participate in necessary counseling and treatment. WlS. Stat. § 302.11(lg)(b)l, 2. Because Gendrich is not entitled to release on his presumptive mandatory release date, he is not entitled to any due process protections. Felce, 974 F.2d at 1490.

¶ 11. Even if we were to hold that the presumptive mandatory release scheme created a legitimate liberty interest entitled to due process protections, we would hold that Gendrich received all of the due process to which he was entitled. In Greenholtz, the United States Supreme Court gave an indication of what process is due when it wrote: "The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances." Greenholtz, 442 U.S. at 16. Gendrich was given a hearing before a member of the Commission, and at that hearing, he had the opportunity to state his case for parole and to challenge the information in his prison record. After the conclusion of the hearing, the Commission gave Gendrich a written explanation of why he was denied release on his mandatory release date.

¶ 12. Gendrich also challenges the Commission's decision as being unsupported by the evidence. The test on certiorari review is the substantial evidence test. Madison Teachers, Inc. v. WERC, 218 Wis. 2d 75, 85, 580 N.W.2d 375 (Ct. App. 1998) (citation omitted). The test is not whether a preponderance of the evidence supports the Commission's determinations, but whether reasonable minds could arrive at the same conclusion reached by the Commission. Id. Moreover, when reviewing the record, we look for evidence which supports the decision made by the Commission, not for evidence which might support a contrary finding that the Commission could have made, but did not. Id. at 85-86. We will set aside the Commission's decision to deny parole only if our review of the record convinces us that "a reasonable person, acting reasonably, could not have reached the decision from the evidence and its inferences." Id. at 86.

¶ 13. We have reviewed the return to the writ of certiorari and find that there is substantial evidence to support the Commission's conclusion that Gendrich's release would pose a substantial risk to the public because he remains an untreated sex offender. Gen-drich has completed the "Denier's Program" but has not yet completed Sex Offender Treatment. Early during his incarceration, he refused to participate in the treatment program because he was still pursuing an appeal of his conviction. Recently, he has been on the institution's waiting list for Sex Offender Treatment. No matter the reason for his not participating in treatment, a reasonable person could conclude that as an untreated sex offender, Gendrich poses a substantial risk to the public.

By the Court. — Order affirmed.

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

       The State suggests that certiorari review of the Commission's action on March 14, 2000, denying Gendrich parole has been rendered moot because Gendrich was given another parole review on May 4,2000. The State argues that the second parole review was the only relief this court could grant and there is no other relief from the March 14, 2000 hearing that is due Gen-drich. Given that Gendrich's challenge to the action of the Commission is the same for both hearings and the circuit court addressed both hearings and denied Gendrich relief, we will consider the Commission's actions at both hearings.

       Gendrich does not develop his equal protection claim and we decline to address it. "Simply to label a claimed error as constitutional does not make it so... and we need not decide the validity of constitutional claims broadly stated but never specifically argued." State v. Scherreiks, 153 Wis. 2d 510, 520, 451 N.W.2d 759 (Ct. App. 1989) (citation omitted).

       Wisconsin Stat. § 304.06(l)(b) provides, in part:
      [T]he parole commission may parole an inmate of the Wisconsin state prisons . . . when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater. (Emphasis added.)

       Wisconsin Stat. § 302.11(1) provides, in part:
      The warden . . . shall keep a record of the conduct of each inmate, specifying each infraction of the rules.... [E]ach inmate is entitled to mandatory release on parole by the department [of corrections]. The mandatory release date is established at two-thirds of the sentence. (Emphasis added.)

       We acknowledge that the cited order from the Seventh Circuit is an "unpublished opinion." However, the Seventh Circuit's rule only prohibits citation of an "unpublished opinion" as precedent in any federal court in that circuit. 7th Cir. R. 53(b)(2) (iv). We are citing to the opinion not for its precedential value but for its persuasive interpretation of Wisconsin law. Leverence v. U.S. Fid. & Guar., 158 Wis. 2d 64, 91, 462 N.W.2d 218 (Ct. App. 1990).

       The relevant portions of WlS. Stat. § 302.11 provide:
      (lg)(a) In this subsection, "serious felony" means any of the following:
      1. Any felony under s. 961.41(1), (lm) or (lx) if the felony is punishable by a maximum prison term of 30 years or more.
      2. Any felony under s. 940.02, 940.03, 940.05, 940.09(1), 940.19(5), 940.195(5), 940.21, 940.225(1) or (2), 940.305(2), 940.31(1) or (2)(b), 943.02, 943.10(2), 943.23(lg) or (lm), 943.32(2), 946.43(lm), 948.02(1) or (2), 948.025, 948.03(2)(a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30(2), 948.35(l)(b) or (c) or 948.36.
      3. The solicitation, conspiracy or attempt, -under s. 939.30, 939.31 or 939.32, to commit a Class A felony.
      (am) The mandatory release date established in sub. (1) is a presumptive mandatory release date for an inmate who is serving a sentence for a serious felony committed on or after April 21, 1994, but before December 31,1999.

       "The procedural guarantees of the due process clause apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." State ex rel. First Nat'l Bank v. M & I Peoples Bank of Coloma, 95 Wis. 2d 303, 310, 290 N.W.2d 321 (1980).

       The Commission's written reasons for denying release incorporated both the risk to the public and Gendrich's failure to complete required counseling and treatment. WlS. Stat. § 302.11(lg)(b)l, 2.
      You have not served sufficient time for punishment noting the sexually assaultive nature of your offending. Your institution conduct record has been acceptable. You participated in the Denier's Program hut are not enrolled in [Sex Offender Treatment] as your case is still in appeal status and you continue to deny your involvement in the sexual assault. As such, you remain an untreated sex offender whose release would continue to involve an unreasonable risk to the public. As we discussed today, as a PMR case, the possibility exists that you could be held in prison beyond your MR date unless you enter and complete treatment programming successfully. Your parole plan seems workable but will require final agent approval.


author: DYKMAN, P.J.

text:
    Johnson Bank, Plaintiff-Respondent, v. Brandon Apparel Group, Inc., Eric P. Lefkofsky, and Bradley A. Keywell, Defendants-Appellants.
    Court of Appeals

      No. 00-2839.

      Submitted on briefs April 19, 2001.

    Decided June 14, 2001.

    2001 WI App 159
    (Also reported in 632 N.W.2d 107.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of John A. Sopuch, III of
      Sopuch Nouhan Higgins & Arnett LLP, Chicago, Illinois, and Howard B. Eisenberg, Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Albert Solochek and Bryan M. Becker oí Howard, Solochek & 'Weber, S.C., Milwaukee.
    A nonparty brief was filed by Michael L. Shakman, Diane F. Klotnia, Thomas M. Staunton of Miller Shakman & Hamilton, Chicago, Illinois, and Michael J. Cohen and Christopher Rexroat of Meissner Tierney Fisher & Nichols, S.C., Milwaukee.
    Before Dykman, P.J., Vergeront and Deininger, JJ.
   DYKMAN, P.J.

¶ 1. Brandon Apparel Group, Inc., Eric Lefkofsky, and Bradley Keywell (hereinafter "Brandon Apparel") appeal from a judgment granting Johnson Bank's motion for default judgment. Brandon Apparel contends that the trial court erroneously exercised its discretion by entering the judgment and concluding there was no oral extension agreement between the parties. The agreement would have allowed Brandon Apparel to delay its filing of a responsive pleading. We conclude that an evidentiary hearing is required to determine whether or not an oral agreement existed, before a default judgment may be granted. We therefore reverse and remand for further proceedings consistent with this decision.

I. Background

¶ 2. According to Johnson Bank's complaint, Brandon Apparel Group, Inc., Eric Lefkofsky, and Bradley Keywell owed Johnson Bank about eleven million dollars on a term loan and a revolving credit loan. Keywell and Lefkofsky were officers of Brandon Apparel and personally guaranteed the loans. On March 8,2000, Johnson Bank sued Lefkofsky, Keywell, Brandon Apparel Group, Inc., and seven other defendants for defaulting on the loan.

¶ 3. On May 11, 2000, after the statutory time limit for Brandon Apparel to respond to Johnson Bank's complaint had expired, Johnson Bank moved for default judgment. On May 18, Brandon Apparel filed several motions, including a motion to enlarge its time to answer, and a motion for leave to file its answer. On that same date, Brandon Apparel filed its answer.

¶ 4. On May 30, 2000, the court heard Johnson Bank's motion for default judgment and Brandon Apparel's motion for leave to file an answer. Prior to the hearing, the parties submitted affidavits in support of their respective positions. In his affidavit, Johnson Bank's counsel denied that he had agreed to an extension of time for Brandon Apparel to file a responsive pleading beyond April 14, 2000. Brandon Apparel's counsel claimed the parties were conducting settlement negotiations, part of which involved assessing the value of the collateral to determine whether any deficiency remained. Brandon Apparel's counsel also stated that Johnson Bank's counsel had explicitly agreed that no responsive pleading need be filed until the value of the collateral could be determined, and that Johnson Bank would provide Brandon Apparel with "reasonable notice" if it decided otherwise.

¶ 5. The court granted the motion for default judgment. The court did not determine the relative credibility of the contradictory affidavits because it determined that the "defendants did not act in a reasonable or prudent manner under the circumstances of this case as a matter of law." Brandon Apparel appeals from the default judgment.

¶ 6. Brandon Apparel also moved for a stay of execution pending appeal. The court denied the motion, making an additional finding that there had been no oral agreement between the parties to defer Brandon Apparel's responsive pleading.

II. Analysis

¶ 7. Brandon Apparel argues that: (1) the trial court erred in concluding that reliance on an oral agreement could not constitute excusable neglect, (2) the court misstated Brandon Apparel's position as to why it failed to file its responsive pleading, (3) the court erroneously entered new factual findings more than twenty days after the entry of judgment, and (4) the court erroneously imputed the negligence of Brandon Apparel's counsel to Brandon Apparel. Johnson Bank asserts that the trial court did not have to find whether an oral agreement existed, since the court believed Brandon Apparel's negligence in not obtaining a written agreement to be inexcusable. We agree with Brandon Apparel's first argument. We remand for the trial court to consider Brandon Apparel's fourth argument, if necessary. We need not address Brandon Apparel's other two arguments.

¶ 8. The trial court's determination in granting a default judgment is reviewed under the erroneous exercise of discretion standard. Oostburg State Bank v. United Sav. & Loan Ass'n, 125 Wis. 2d 224, 238, 372 N.W.2d 471 (Ct. App. 1985), aff'd, 130 Wis. 2d 4, 386 N.W.2d 53 (1986). Our review is limited to whether the trial court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion. Doersching v. Funeral Dirs. & Embalmers Examining Bd., 138 Wis. 2d 312, 328, 405 N.W.2d 781 (Ct. App. 1987). If the record indicates that the trial court failed to exercise its discretion, if the facts of record fail to support the trial court's decision, or if our review of the record indicates that the trial court applied the wrong legal standard, we will reverse the trial court's decision as an erroneous exercise of discretion. See Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶ 42, 241 Wis. 2d 605, 623 N.W.2d 94.

¶ 9. The exercise of discretion is not the equivalent of unfettered decisionmaking. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). A discretionary determination, to be sustained, must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law. Id. A misapplication or an erroneous view of the law is an erroneous exercise of discretion. State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733 (1968).

¶ 10. Wisconsin Stat. § 801.15(2)(a) (1997-98) provides that a trial court may extend the time in which an act is required to be done if the court finds that the failure to act in a timely manner was the result of excusable neglect. Excusable neglect is defined as "that neglect which might have been the act of a reasonably prudent person under the same circumstances." Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832 (1969). In the context of an untimely answer, reasonable grounds for noncompliance with a statutory time requirement constitutes excusable neglect. Connor v. Connor, 2001 WI 49, ¶ 16, 243 Wis. 2d 279, 627 N.W.2d 182.

¶ 11. In the trial court, the parties disputed whether there was an oral agreement to extend the time to file a responsive pleading. Brandon Apparel offered to call witnesses to prove its claim that an oral agreement existed, but the trial court declined to hear the testimony. The trial court concluded that, even if there was an oral agreement, reliance on it was not excusable neglect because the parties had made written agreements in past instances. In granting the default judgment, the trial court reasoned as follows:

Both parties offer conflicting positions concerning an oral agreement concerning pleadings and whether settlement negotiations were ongoing. This court does not need to determine which party is truthful and credible in either instance because [Brandon Apparel] did not act in a reasonable or prudent manner under the circumstances of this case as a matter of law.

Later, however, the court supplemented its findings with the following statement:

I previously indicated I didn't think I needed to find whether there was an oral agreement or not, but to supplement the record I'm going to find there was no oral agreement. And the basis for that finding is that if there is one I think that [Johnson Bank's counsel] would have followed his policy as it was indicated by the previous — in this case previous written memor — excuse me — written confirmation of previous extensions that he would have put that in writing.

¶ 12. We cannot uphold this conclusion as a proper exercise of discretion. In Rutan v. Miller, 213 Wis. 2d 94, 98, 570 N.W.2d 54 (Ct. App. 1997), an initial courtesy agreement between the parties to extend the filing of a responsive pleading was confirmed in writing. However, a subsequent courtesy agreement regarding the filing deadline was not. Id. at 98-99. We reversed the trial court, concluding that it erred in finding no excusable neglect. Id. at 102.

¶ 13. Rutan involved an undisputed courtesy agreement, see id., but the supreme court has recently addressed disputed oral courtesy agreements in Con-nor. In Connor, 2001 WI 49 at ¶¶ 19-20, the defendant against whom the trial court entered default judgment asserted that there was an oral understanding for an extension of time. The trial court determined that the defendant's failure to timely answer was not excusable neglect. Id. at ¶ 19. The supreme court upheld the trial court's determination and explained as follows:

[The trial court] did not conclude that the agreement was unenforceable because it was not in writing. In fact, the only mention the court made about the agreement not being in writing was that most attorneys confirm such extensions in writing. It did not state that the agreement had to be in writing. Indeed, courtesy agreements that are not reduced to writing may be enforceable in certain instances. Here, however, the parties disputed the existence of the agreement; therefore, the court was forced to make a determination as to whether the agreement even existed.

Id. at ¶ 21 (citation omitted).

¶ 14. Thus, in Connor as here, there was an ultimate finding that no oral agreement existed. However, in Connor, the supreme court presumed the availability of an evidentiary hearing on this question if a party requested one. The court stated: "Indeed, the defendant could have provided additional evidence to the court on this and other factors; however she decided to rest her case on [her attorney's] affidavit . ..." Id. at ¶ 22. Unlike the defendant in Connor, Brandon Apparel did not choose to rest its case on affidavits alone. It specifically noted that it was prepared to put witnesses on the stand, but the trial court determined that was unnecessary.

¶ 15. Where an issue is largely a matter of credibility because the evidence is irreconcilably in conflict, courtroom testimony is preferable. See Honeycrest Farms, Inc. v. A.O. Smith Corp., 169 Wis. 2d 596, 604, 486 N.W.2d 539 (Ct. App. 1992). An important function of trial courts is to determine which witnesses to believe. See State v. Christopher, 44 Wis. 2d 120, 127, 170 N.W.2d 803 (1969). Where credibility of witnesses is at issue, the trier of fact has an opportunity to observe the witnesses, their manner of testifying, and their demeanor on the witness stand. Id. These are nuances that do not appear in a printed record. Id.

¶ 16. Here, the parties submitted affidavits with conflicting statements as to whether an oral agreement existed. While the trial court may have considered the parties' affidavits, some matters are "too grave to be decided on affidavits." Kelly v. Clark, 192 Wis. 2d 633, 654, 531 N.W.2d 455 (Ct. App. 1995). Unless the facts are undisputed or the right to a hearing is waived, a party or attorney is entitled to more than a trial by affidavit. Id. at 655. We conclude that the trial court erroneously exercised its discretion by entering default judgment without hearing testimony on the question of whether an oral agreement existed, and if so, what the agreement provided. We remand to permit the trial court to do so.

¶ 17. Upon remand, and if necessary, the trial court should also consider whether to impute the negligence of Brandon Apparel's counsel to Brandon Apparel. See Connor, 2001 WI 49 at ¶ 36.

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

       The trial court granted the other seven defendants' motion to dismiss them from the suit for lack of personal jurisdiction.

       All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. WISCONSIN Stat. § 801.15(2)(a) states:
      When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02 may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Eileen M. Entringer, Defendant-Respondent.
    Court of Appeals

      No. 00-2568-CR.

      Submitted on briefs April 16, 2001.

    Decided June 19, 2001.

    2001 WI App 157
    (Also reported in 631 N.W.2d 651.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general and Jeffrey J. Kassel, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of William E. Schmaal, assistant state public defender, Madison.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
   PETERSON, J.

¶ 1. The State appeals an order dismissing one count of uttering a forged writing, contrary to Wis. Stat. § 943.38(2). The issue is whether a person can falsely make a postal money order by writing in the name of someone else as the payer. We hold that the answer is no and therefore affirm.

BACKGROUND

¶ 2. A Door County sheriff s deputy stopped Eileen Entringer for speeding. When the deputy asked Entringer for identification, she stated that she did not have any. The deputy asked for her name and Entr-inger said that her name was Mary Ann Jandrin. The deputy then issued her a ticket. Jandrin is Entringer's mother.

¶ 3. Entringer then purchased a $25 postal money order. She printed "Mary Ann T. Jandrin" in the space provided for the payer's name along with a ticket number that corresponded to the speeding ticket. She then sent the money order to the Door County Clerk of Court.

¶ 4. When Jandrin discovered that a ticket had been issued in her name, she contacted the district attorney. Entringer was subsequently charged with uttering a forged document and obstructing an officer.

¶ 5. At the preliminary hearing, the circuit court determined that probable cause did not exist for uttering a forged document and dismissed the charge. The State appealed.

STANDARD OF REVIEW

¶ 6. This appeal requires us to interpret WlS. STAT. § 943.38(2). The proper interpretation and application of a statute are questions of law that we review independently. State v. Shea, 221 Wis. 2d 418, 425, 585 N.W.2d 662 (Ct. App. 1998). When the principal facts and inferences are undisputed, the appellate court may review the factual record and decide as a matter of law whether the evidence establishes probable cause that a crime has been committed and that the defendant has probably committed it. State v. Williams, 104 Wis. 2d 15, 21-22, 310 N.W.2d 601 (1981).

DISCUSSION

¶ 7. The issue on appeal is whether a person can falsely make a postal money order by writing in the name of someone else as the payer. We conclude that writing in the name of someone else as a payer does not affect the genuineness of the money order itself.

¶ 8. Wisconsin Stat. § 943.38 provides in relevant part:

Forgery. (1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class C felony:
(a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights ....
(2) Whoever utters as genuine or possesses with intent to utter as false or as genuine any forged writing or object mentioned in sub. (1), knowing it to have been thus falsely made or altered, is guilty of a Class C felony.

There are four statutory elements of the offense of uttering a forged writing under Wis. Stat. § 943.38(2): (1) the writing was one by which legal rights or obligations are created or transferred; (2) the writing was falsely made to appear to be made by another person; (3) the defendant uttered the writing as genuine; and (4) the defendant knew the writing was falsely made. State v. Kurzawa, 180 Wis. 2d 502, 525-26 n.15, 509 NW.2d 712 (1994) (quoting WIS JI — CRIMINAL 1492). Our resolution of this appeal focuses on the second element.

¶ 9. The State argues that a money order is falsely made when a person prints someone else's name on it to further a fraudulent scheme. Entringer argues that Wis. Stat. § 943.38(2) only applies to falsehoods that materially affect the document's legal efficacy. She contends that printing her mother's name on the money order is not a falsehood affecting the money order's legal efficacy. The State responds by agreeing that the falsehood must be material, but disagreeing that the materiality must affect the document's efficacy. According to the State, it was enough that the falsehood was material to Entringer's scheme to get out of the ticket. We disagree with the State.

¶ 10. The forgery statutes are designed to safeguard confidence in the genuineness of documents relied upon in commercial and business activity. Little v. State, 85 Wis. 2d 558, 562, 271 N.W.2d 105 (1978). From this proposition, Wisconsin, as most jurisdictions, requires that a false making must relate to the genuineness of execution of a document, not to the genuineness of its contents.

¶ 11. In First Am. State Bank v. Aetna Cas. & Surety Co., 25 Wis. 2d 190, 130 N.W.2d 824 (1964), our supreme court examined copies of unsigned fraudulent invoices that had been used to secure credit at a bank. The court declined to follow a seventh circuit case and found more persuasive a line of cases from the fourth circuit which held: "it is very doubtful, whatever writing appeared upon them, they could be held to be the subject of . . . forgery so long as the writing did not misrepresent their origin." Id. at 195-96 (quoted source omitted). The point was that the credit was obtained by false pretenses, not by uttering forged writings. Id. at 196. The court held that "false making relates to genuineness of execution...." Id. at 194-95.

¶ 12. This point was driven home later in State v. Davis, 105 Wis. 2d 690, 694, 314 N.W.2d 907 (Ct. App. 1981), where the court approvingly cited Professor LaFave: "Forgery requires a lie relating to the genuineness of a document." Wayne R. LaFave and Austin W. S COTT, Jr., Handbook on Criminal Law, § 90, at 671 (1972).

¶ 13. Perkins makes the same point:

It is an indispensable requirement of forgery that the writing be false. It may have been false in its inception or may have been made so by subsequent tampering with what was originally genuine; but it must be a false writing. In this connection it is essential to distinguish between a false instrument and false statements in an instrument.

Rollin M. Perkins, Perkins on Criminal Law, ch. 4, § 8 at 345 (2d ed. 1969). Perkins cites a Colorado case that explains the distinction as well as any case: "This writing is what it purports to be — a true and genuine instrument, although it contains false statements. . . . A false statement of fact in an instrument which is itself genuine, by which another person is deceived and defrauded, is not forgery." DeRose v. People, 171 P. 359, 360 (Colo. 1918).

¶ 14. Treatises are in accord. " 'Falsely' . . . does not refer to the contents or tenor of the writing or to the facts stated therein, but implies that the paper or writing is not genuine, that it is in itself false or counterfeit." 36 Am. Jur. 2d Forgery § 9 (2001).

Forgery cannot be committed by the making of a genuine instrument, although the statements made therein are untrue. The term "falsely" has reference not to the contracts or tenor of the writing, or to the fact stated in the writing, but it implies that the paper or writing is false, not genuine, fictitious, not a true writing, without regard to the truth or falsehood of the statement it contains.

37 C.J.S. Forgery, § 10 at 74 (1997) (footnotes omitted).

¶ 15. Finally, an A.L.R. annotation that surveyed decisions, concludes that "the better view, and that supported by the majority opinion, is that. . . the genuine making of an instrument for the purpose of defrauding does not constitute the crime of forgery." Annot. 41 A.L.R. 229, 231 (1926). As Justice Scalia observed in his dissent in Moskal v. United States, 498 U.S. 103, 129 (1990), " 'Majority opinion' is an understatement. The annotation lists 16 States and the United States as supporting the view, and only 2 states (Kentucky and Tennessee) as opposing it." The two opposing states do not even include the term "falsely made" in their statutes. Id.

¶ 16. The effect of this rule can be better understood by some examples of what is not forgery. Perkins explains that if a person executes a deed with a warranty that the real estate is free and clear of encumbrances, even though the person knows the land is subject to a large mortgage, the deed is genuine. The contents of the deed are false, but it would not be forgery because the document is in fact a deed. The falsity is in its content, not in its execution. PERKINS, supra, ch. 4, § 8 at 345. Nor is it forgery to add mere surplusage to a document, such as putting in the name of a witness where none is required, or changing a memo on the back of a document which has no legal effect. 36 Am. Jur. 2d Forgery § 8 at 543 (2001).

¶ 17. In our case, Entringer purchased a $25 money order from the post office. She paid money. The post office in return gave her the money order. At that point the money order was as good as cash. Entringer then made the money order payable to the clerk of court. She listed her mother's name as the payer. However, the name of the payer had nothing to do with the genuineness of the execution of the money order. As the clerk testified, postal money orders are accepted even if they have no name listed as payer. Naming the payer is mere surplusage, as far as genuineness of execution is concerned. It does not constitute "falsely making" the money order.

¶ 18. The State relies on three cases in its argument. First it cites State v. Czarnecki, 2000 WI App 155, ¶ 4, 237 Wis. 2d 794, 615 N.W.2d 672, where the defendant was convicted of forgery and uttering a forged writing after he endorsed checks with an assumed name. We held that the checks were falsely made when the defendant endorsed them using an assumed name because he "did not have a legitimate purpose for using his assumed name to endorse the checks." Id. at ¶ 12. We further held that when the defendant presented the check for deposit endorsed with the assumed name, "he took another step in furtherance of his plan to use the check as a means to defraud." Id. at ¶ 13. That made the endorsement a false act that satisfied the requirement of the uttering statute that the writing be falsely made. See id. The State contends the same rationale applies here.

¶ 19. However, there is a critical distinction between Czarnecki and this case. Czarnecki endorsed the checks. An endorsement is part of executing a check. Entringer, on the other hand, did not endorse the money order; it was executed when Entringer purchased it. She added information that was not necessary to the genuineness of the execution. Using the distinction of the case law, the information Entr-inger added related to content of the document, not its execution. Thus, she did not "falsely make" the money order.

¶ 20. The State also relies on State v. LaRue, 487 P.2d 255 (Wash. Ct. App. 1971). In that case, someone stole a Travelers Express personal money order from a business. LaRue tried to use the money order to purchase an item in a store. He wrote a name other than his own on the money order. LaRue claimed he could not have committed a forgery because the signature had no legal effect on the validity of the money order.

¶ 21. The Washington court said it would have agreed with LaRue under prior case law holding that "a personal money order is 'akin' to a bank cashier's check and thus represents a direct bank obligation to pay a holder." Id. at 258. However, later case law has concluded that a personal money order is the equivalent of a personal check. Id. This would include, among other things, the right to stop payment. Id. As a result, the court concluded that the signature was the same as the signature of a drawer of a check and constituted a forgery. Id. at 258-59.

¶ 22. This case is different. First, a postal money order is different than a Travelers Express personal money order. Unlike the personal money order in LaRue, payment cannot be stopped on a postal money order. See O'Malley, Legal Aspects of Postal Money Orders, 84 Banking L.J. 471 (1967). In fact, a postal money order is not even a negotiable instrument. 11 Am. Jur. 2d Bills and Notes § 32 (1997); Computer Works, Inc. v. CNA Ins. Cos., 757 P.2d 167, 168 (Colo. Ct. App. 1988). Thus, we conclude a postal money order is much more akin to a bank cashier's check and represents a direct obligation to pay a holder. As such, the signature of the payer has no effect on the genuineness of the money order.

¶23. Furthermore, in LaRue the store apparently insisted upon a signature and some identification. Here, the Clerk testified that money orders are accepted with any name or no name. While reliance is not an element of forgery or uttering, see State v. Shea, 221 Wis. 2d 418, 429, 585 N.W.2d 662 ( Ct. App. 1998), the Washington court commented that the store was entitled to believe the signature of the drawer was genuine.

¶ 24. Finally, Washington law is not binding on this court. We are not persuaded by the LaRue court's analysis. It completely ignores a distinction which is critical in Wisconsin: genuineness of execution versus genuineness of content. Despite the personal money order's similarity to a check, the signature was not essential to its execution. Under Wisconsin law, the signature could not constitute a false making.

¶ 25. The third case the State cites is Moskal to illustrate how a false entry on a document may constitute a false making. Moskal's holding relies on its conclusion that falsely made encompasses genuine documents that are false in content. Id. at 104. However, this conclusion is directly contrary to Wisconsin law. As was explained earlier in this opinion, Wisconsin differentiates between false execution of a document and false contents of a document. The former is forgery; the latter is not. Further, Moskal relied on the legislative intent of 18 U.S.C. § 2314. The Court did not offer a view regarding its interpretation of the term "falsely made" in other statutes. Id. at 109 n.2.

¶ 26. WISCONSIN Stat. § 943.38 requires that false making relate to the genuineness of execution, not to the genuineness of content. Here, Entringer's use of her mother's name on a postal money order did not affect the money order's execution. Entringer's actions may have been a false representation within the contents of the money order, but that does not affect the genuineness of the money order itself. Consequently, the circuit court correctly dismissed the uttering a forged writing charge.

By the Court. — Order affirmed.

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

       The Door County Clerk of Court testified that the office accepts postal money orders regardless of who is listed as the payor. Money orders that are blank are even accepted.

       The State additionally argues that probable cause exists for each element of Wis. Stat. § 943.38(2). Our resolution of the second element is dispositive of the appeal. Therefore, we do not address these other arguments.

       Entringer additionally argues that federal law bars a state prosecution for forgery of a United States Postal money order. Because our resolution of the previous issue is disposi-tive, we do not address this issue.

       LaFave explained what is meant by genuineness of a document: a "foreman who pads the time-roll by crediting himself with working more hours than he actually has worked does not commit forgery, since his lie relates to something other than the genuineness of the time-roll." Wayne R. LaFave and Austin W. S COTT, Jr., Substantive Criminal Law, § 8.7, at 406-07 (1986) (footnote omitted).