source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    James Reese and Kenneth Reese, Plaintiffs-Respondents, v. City of Pewaukee, Defendant-Appellant.
    Court of Appeals

      No. 01-0850.

      Oral argument January 15, 2002.

    Decided February 20, 2002.

    2002 WI App 67
    (Also reported in 642 N.W.2d 596.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of H. Stanley Riffle and Julie A. Aquavia of Arenz, Molter, Macy & Riffle, S.C., Wauke-sha. There was oral argument by H. Stanley Riffle.

      .On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Douglas R. Stern of Stern & Ramthun, LLP, Milwaukee. There was oral argument by Douglas R. Stern.

    Before Nettesheim, EJ., Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. The City of Pewaukee (City) appeals from a circuit court order remanding a contested real property assessment to the City of Pewaukee Board of Review. James and Kenneth Reese, the owners of the parcel in question, argue that their failure to receive a statutory notice of reassessment exempted them from proceeding before the board of review and from the time limits of Wis. Stat. § 74.37(3) (1999-2000), and thereby allowed the initiation of this action. Although we agree with the Reeses that they are not required to first proceed before the board of review, we agree with the City that the requirements of § 74.37 render this action untimely. We therefore reverse the order of the circuit court and remand.

Background.

¶ 2. James and Kenneth Reese are the owners of real property located in the City of Pewaukee. In October 1999, their property was reassessed at a substantially higher value than the previous year, resulting in a correspondingly higher property tax liability. The mailing address for the parcel in question had changed in 1997 and, although the City had notice of the change as early as February 1998, the city assessor mailed the notice of reassessment to the Reeses' old address in Waukesha. Due in part to differences between city and county computer databases of ownership and address information, the 1999 notice of reassessment was sent to the incorrect Waukesha address while the Reeses' 1998 and 1999 notices of personal property assessment and 1998 real property tax bill were sent to the correct address in Pewaukee. The Reeses did not receive actual notice of the reassessment until mid- to late December 1999 when their real property tax bill arrived at the correct Pewaukee address. The tax was paid "under protest" on December 28, 1999.

¶ 3. On March 31, 2000, the Reeses filed a notice of claim with the City of Pewaukee, challenging the reassessment and demanding a reduction of their 1999 taxes. In the complaint filed August 2, 2000, the Reeses alleged that their failure to receive the 1999 notice of reassessment deprived them of their statutory right to contest the reassessment. The circuit court, citing considerations of due process stemming from the lack of notice, ordered that the case be remitted to the City of Pewaukee Board of Review for hearing and review. The City argues on appeal that the Reeses did not exhaust their administrative remedies before the board of review, that this claim and action were untimely filed, and that the circuit court did not have the authority to remand to the board of review.

Discussion

¶ 4 A. Standard of Review. The relevant facts in this case are not in dispute. The application of a statute to undisputed facts is a question of law which we review de novo. Tobler v. Door County, 158 Wis. 2d 19, 21, 461 N.W.2d 775 (1990).

¶ 5 B. The Statutory Scheme. In 1987, the Wisconsin legislature undertook a wholesale recodification of the property tax system and introduced significant procedural and substantive changes to the property tax laws. See Legislative Council Prefatory Notes, 1987 Wis. Act 378. Wisconsin Stat. chs. 70 and 74 contain a comprehensive scheme for the assessment and collection of property taxes. Hermann v. Town of Delavan, 215 Wis. 2d 370, 379, 572 N.W.2d 855 (1998). Chapter 70 sets out the procedures for assessment of property and adjustment of the assessment. Hermann, 215 Wis. 2d at 379. Property is assessed as of January 1 of every year, and if a taxpayer's property is assessed at a different value than the year before, he or she is notified of that change. Wis. Stat. §§ 70.10, 70.365. The notice to the taxpayer informs him or her of the opportunity to object to the changed assessment before the board of review. Sec. 70.365.

¶ 6. If the taxpayer is not satisfied by the board of review's determination, he or she may appeal by an action for certiorari to the circuit court, a complaint to the department of revenue, or a claim against the taxation district. Wis. Stat. §§ 70.47(13), 70.85, 74.37. Compliance with the board of review procedures is a prerequisite to all three forms of appeal and the three sections are the exclusive method for challenging an excessive assessment. Hermann, 215 Wis. 2d at 381-82. However, while the statutes do require the exhaustion of administrative remedies, they also leave the taxpayer one last option in case the taxation district does not wholly comply with its own administrative procedures and the taxpayer fails to receive notice of a changed assessment and the objection procedures. Even though Wis. Stat. § 70.365 explicitly states that "failure to receive the notice shall not affect the validity of the changed assessment, the resulting changed tax, [or] the procedures of the board of review," § 74.37(4) allows a claim to be brought against the taxation district without first complying with board of review procedures, but only when notice under § 70.365 was not given. Section 74.37(2)(b) sets out other requirements for the claim against the taxation district, most notably suhd. 5, which states that the claim must be filed by "January 31 of the year in which the tax based upon the contested assessment is payable."

¶ 7 C. Analysis. The City asserts that it followed standard procedures when it mailed the Reeses' notice of changed assessment. While it is undisputed that the City procedures generally comply with the statutory notice procedures of Wis. Stat. § 70.365, it is also undisputed that the notice was in fact sent to an old address and that the Reeses never received it. Since evidence that a letter was mailed creates only a rebut-table presumption of receipt, and the Reeses have denied receipt without evidence to the contrary by the City, we hold that the Reeses did not receive notice under § 70.365. See State ex rel Flores v. State, 183 Wis. 2d 587, 612-13, 516 N.W.2d 362 (1994). However, the Reeses did receive notice of the changed assessment through their property tax bill, which they received in December 1999. The tax was payable by January 31, 2000, and was paid one month early, on December 28, 1999. See Wis. Stat. § 74.11.

¶ 8. The Reeses were not required to proceed before the board of review because one of the "circumstances where an owner is not required to file a § 70.47(7), Stats., objection [is] when a town fails to give notice where notice is required under § 70.365, Stats." Duesterbeck v. Town of Koshkonong, 2000 WI App 6, ¶ 19, 232 Wis. 2d 16, 605 N.W.2d 904. That exception is also codified by Wis. Stat. § 74.37(4)(a). The question that remains is what, if any, procedures were the Reeses required to follow to bring this claim of excessive assessment.

¶ 9. Wisconsin Stat. § 74.37(2)(b)5 states that a claim for excessive assessment must be filed by January 31 of the year in which the tax is due. The Reeses contend that their failure to receive notice under Wis. Stat. § 70.365 should relieve them of compliance with the time limits of § 74.37. Section 74.37 reads, in relevant part:

Claim on excessive assessment ....
(2) Clam, (a) A claim for an excessive assessment may be filed against the taxation district, or the county that has a county assessor system, which collected the tax.
(b) A claim filed under this section shall meet all of the following conditions:
5. Be served on the clerk of the taxation district, or the clerk of the county that has a county assessor system, in the manner prescribed in s. 801.11(4) by January 31 of the year in which the tax based upon the contested assessment is payable.
(4) Conditions, (a) No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under s. 70.47, except under s. 70.47(13), have been complied with. This paragraph does not apply if notice under s. 70.365 was not given.

¶ 10. The Reeses argue that requiring them to comply with the time limits of Wis. Stat. § 74.37 when the City has not complied with Wis. Stat. § 70.365 would "produce an untoward result." However, we are not convinced of the merits of that argument in this case. First, a plain reading of § 74.37(4)(a) does not support the Reeses' position. It states only that "[t]his paragraph does not apply if notice under s. 70.365 was not given." Sec. 74.37(4)(a) (emphasis added). This language unambiguously references only "this paragraph," not the whole section or another paragraph. As a matter of law then, only the obligation to proceed before the board of review does not apply if notice under § 70.365 was not given. This interpretation is consistent with the plain meaning of the statute.

¶ 11. Second, the Reeses' argument hints at a broader due process problem and public policy considerations. We conclude, however, that no such problems exist in this case. The Reeses did actually receive notice of the changed assessment when they received their property tax bill in December 1999. They did in fact pay their taxes on December 28, 1999. The legislature knows and intends the effects of the statutes it creates, and when the legislature embarked on the wholesale recodification of the property tax laws, it did so with an eye toward streamlining the process and making the statutes reflect substantive changes in the law. See Legislative Council Prefatory Notes, 1987 Wis. Act 378. As a matter of practical public policy:

A statutory plan of tax assessment, tax levying, and tax collection needs to have established procedures and time limits for effective governmental planning. The administrative procedures, appellate process, and time limitations of chs. 70 and 74 serve as procedural safeguards against municipalities having to undertake comprehensive reassessments long after the books have been closed for a given tax year.

Hermann, 215 Wis. 2d at 392-93.

¶ 12. The procedure designed by the legislature allows for the mailing of tax bills in December and the payment of those taxes by the following January 31. That procedure also contemplates that any objections to assessments will be brought before the board of review or filed with the taxation district by January 31 (the same day that the taxes are due). Furthermore, Wis. Stat. § 74.37(4)(a) specifically addresses the situation where the taxpayer does not receive notice as required under Wis. Stat. § 70.365, and still requires the taxpayer to file his or her claim by January 31. The legislature had knowledge of both when tax bills are sent and when they are due. Combining that knowledge with the explicit recognition of a potential failure of notice in § 74.37(4)(a), we must conclude that the legislature found the days between receipt of the tax bill and the due date of the taxes sufficient for notice to the taxpayer of the procedures for appeal of the assessment.

Conclusion

¶ 13. According to the plain meaning of the language in Wis. Stat. chs. 70 and 74, the Reeses were exempt from the obligation to proceed before the board of review because they never received notice of the changed assessment under Wis. Stat. § 70.365. However, they were required to follow the procedures set forth in Wis. Stat. § 74.37(2), regardless of the fact that they never received notice under § 70.365. Because their- claim against the City was not filed until March 31, 2000, that claim and this action must be dismissed as untimely. We therefore need not review the authority of the circuit court to remand the case to the City of Pewaukee Board of Review. On remand, the circuit court shall dismiss the Reeses' complaint.

By the Court, — Order reversed and cause remanded with directions.

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


author: CANE, C.J.

text:
    Thomas M. Berends, Plaintiff-Appellant, v. Mack Truck, Inc., Defendant-Respondent.
    Court of Appeals

      No. 01-0911.

      Submitted on briefs November 5, 2001.

    Decided February 20, 2002.

    2002 WI App 69
    (Also reported in 643 N.W.2d 158.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael J. Brose and Brian H. Sande of Doar, Drill & Show, S.C. of New Richmond.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Jeffrey S. Fertl of Hin-shaw & Culbertson of Milwaukee.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   CANE, C.J.

¶ 1. Thomas Berends appeals from a judgment dismissing his complaint for relief under Wisconsin's "Lemon Law," Wis. Stat. § 218.015. The circuit court granted summary judgment in Mack Truck's favor on grounds that Berends' required notice to Mack Truck was defective because: (1) it failed to specify whether Berends wanted a new motor vehicle or a refund of the purchase price; (2) it offered Mack Truck a third option not provided by statute— repairing the vehicle within seven days; and (3) it failed to offer to transfer title to Mack Truck. We conclude that each of the first two reasons independently renders the notice deficient and, therefore, we affirm the judgment.

Statement of Facts

¶ 2. Berends purchased a Mack Truck on May 28, 1999. According to Berends, the vehicle did not conform with the express warranty and Mack Truck's numerous attempts to repair the vehicle were unsuccessful. On October 14, Berends sent Mack Truck the notice required by Wis. Stat. § 218.015(2). Berends1 notice stated in relevant part:

Under the provisions of Wis. Stat. § 218.015, this is a written demand for relief as outlined in that law.
In early October of 1999, Mr. Tom Berends notified his retail dealer that his Mack truck. . . was a "lemon" according to the Wisconsin Lemon Law. .. . Since he bought the truck:
It has been returned to the dealer in Eau Claire, and at one other authorized shop in Las Vegas, NY for the same problem a total of, at least, seven times. Additionally, it has been out of service a total number of days in excess of 30 calendar days.
At this time, Mr. Berends is still having the same warranty problems with his vehicle. These defects have substantially impaired the use, safety and market value of his vehicle. Mr. Berends, therefore, demands that you either repair these defects within seven business days, accept the return of his vehicle and within 30 days of the return, provide him with a vehicle acceptable to him, or provide him with a refund calculated within accordance of the Lemon Law.
Failure to comply with the Lemon Law is a violation of Wis. Stat. § 218.015 and you may be subject to double damages, as well as attorneys fees and court costs if this matter is taken to court.

¶ 3. On November 26, Berends filed a complaint alleging that Mack Truck violated Wis. Stat. § 218.015 by failing to accept return of Berends' vehicle and replace it with a comparable new motor vehicle. Ber-ends sought damages allowed under the Lemon Law, including the full purchase price, double damages and attorney fees.

¶ 4. Mack Truck denied the allegations and also alleged as an affirmative defense that Berends' notice was defective because:’ (1) it failed to specify whether a refund or vehicle replacement was requested; and (2) it failed to indicate Berends' willingness to transfer title to Mack Truck.

¶ 5. After the parties exchanged discovery materials, Mack Truck moved for summary judgment on grounds that the October 14,1999, notice failed to meet the requirements of Wis. Stat. § 218.015(2)(b) and (c). The parties agreed that there were no disputed facts with respect to the October 14 letter. The circuit court concluded that the letter failed to satisfy the requirements of § 218.015(2)(b) and (c). The court granted judgment in Mack Truck's favor and dismissed Berends' claim without prejudice. This appeal followed.

Standard op Review

¶ 6. We review a motion for summary judgment using the same methodology as the trial court. M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). That methodology is well known, and we will not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 496-97.

¶ 7. Here, the relevant facts are undisputed. At issue is whether Berends' October 14 letter satisfied the notice requirements of Wis. Stat. § 218.015(2). Statutory construction presents a question of law that we review de novo. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177 (Ct. App. 1992). When we interpret a statute, our purpose is to ascertain the intent of the legislature and give it effect. Id. Our first step is to examine the language of the statute, and, absent ambiguity, give the language its ordinary meaning. Id. at 225-26. If the language is ambiguous, we examine the scope, history, context, subject matter and purpose of the statute in order to determine the legislative intent. Id. at 226. Statutory language is ambiguous if reasonable people could disagree as to its meaning. Id.

Discussion

¶ 8. Wisconsin Stat. § 218.015, the Lemon Law, is a "remedial statute designed to rectify the problem a new car buyer has when that new vehicle is a 'lemon.'" Church v. Chrysler Corp., 221 Wis. 2d 460, 466, 585 N.W.2d 685 (Ct. App. 1998). The law provides that if a new motor vehicle does not conform to an express warranty and the consumer reports the nonconformity and makes the vehicle available for repair before the expiration of the warranty or one year after delivery of the vehicle, the nonconformity shall be repaired. Wis. Stat. § 218.015(2)(a). If the nonconformity is not re paired, the consumer's remedies pursuant to § 218.015(2) are as follows:

(b) 1. If after a reasonable attempt to repair the nonconformity is not repaired, the manufacturer shall carry out the requirement under subd. 2. or 3., whichever is appropriate.
2. At the direction of a consumer described under sub. (l)(b) 1., 2. or 3., do one of the following:
a. Accept return of the motor vehicle and replace the motor vehicle with a comparable new motor vehicle and refund any collateral costs.
b. Accept return of the motor vehicle and refund to the consumer and to any holder of a perfected security interest in the consumer's motor vehicle, as their interest may appear, the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use....
. • • -t]
(c) To receive a comparable new motor vehicle or a refund due under par. (b) 1. or 2., a consumer described under sub. (l)(b) 1., 2. or 3. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motor vehicle or refund.

¶ 9. If the manufacturer fails to provide the consumer's specified remedy, the consumer may bring an action to recover damages caused by a violation of Wis. Stat. § 218.015. See Wis. Stat. § 218.015(7). In other words, it is the manufacturer's failure to comply with a proper notice that gives rise to a violation of the statute and triggers the consumer's right to remedies under § 218.015(7). See Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 981, 542 N.W.2d 148 (1996). If the consumer prevails, the court shall award "twice the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and any equitable relief the court determines appropriate." Wis. Stat. § 218.015(7).

¶ 10. Berends' action is premised on his allegation that Mack Truck failed to accept return of his vehicle and provide him with a comparable new motor vehicle. Mack Truck argues that because Berends' notice was defective, there was no violation of Wis. Stat. § 218.015. We agree.

A. Consumers are required to specify the remedy selected

¶ 11. The circuit court concluded that Wis. Stat. § 218.015(2)(b) requires the consumer to specify the remedy selected. The statute provides, "At the direction of a consumer," the manufacturer must accept return of the motor vehicle and then replace the motor vehicle with a comparable new motor vehicle or refund the purchase price. Id. We agree with the circuit court that the phrase, "At the direction of a consumer" is unambiguous. It requires the consumer to make a choice and communicate that choice to the manufacturer. Because Berends failed to specify whether he wanted a new vehicle or a refund of the purchase price, his notice was defective.

¶ 12. Berends argues that there is no statutory prohibition against a consumer asking for either a replacement vehicle or, alternatively, a refund. He explains, "If the consumer has no preference as to either of the two forms of relief, a consumer should be allowed to present both options to the manufacturer." Moreover, he contends, allowing a consumer to accept either remedy provides a wider range of options and makes resolution more likely.

¶ 13. We reject this argument because giving the manufacturer the choice of remedies is clearly contrary to the language of the statute. Wisconsin Stat. § 218.015(2)(b) unambiguously provides that the manufacturer "shall carry out the requirement" that "At the direction of a consumer . .. [the manufacturer] do one of the following. . . ." (Emphasis added.) The manufacturer is given no choice under the statute, and Berends cannot interpret the statute in such a way as to give the manufacturer that choice. As the circuit court observed, the Lemon Law gives the consumer a powerful tool, but it also imposes on the consumer the responsibility of electing a specific remedy. If Berends believes the consumer should be able to pass that choice on to the manufacturer, his remedy lies with the legislature, not the courts.

B. Offering the manufacturer another opportunity to repair the vehicle is inconsistent with a demand under Wis. Stat. § 218.015(2)

¶ 14. The circuit court also concluded that Ber-ends' suggestion that he would be satisfied if Mack Truck repaired the vehicle within seven days was inconsistent with giving the manufacturer notice under Wis. Stat. § 218.015(2). We agree. Notification under Wis. Stat. § 218.015(2) informs the manufacturer that it must provide the consumer with the consumer's selected remedy — a new vehicle or refund of the purchase price — within thirty days. The manufacturer's failure to provide this remedy triggers liability under the Lemon Law. See Wis. Stat. §§ 218.015(2)(c) and 218.015(7). By providing Mack Truck a third option, Berends failed to follow the unambiguous language of § 218.015(2)(b), rendering his notice defective.

¶ 15. Berends argues that there is nothing in the statute that prohibits a consumer from suggesting an alternative means of compromise in a notice letter. We disagree. For purposes of triggering the thirty-day time limit established by Wis. Stat. § 218.015(2)(c), the consumer must either demand that the manufacturer provide a new vehicle or demand that the manufacturer refund the purchase price.

C. The Department of Transportation's form is not controlling

¶ 16. Berends argues that his notice is not defective because it conformed with a form letter distributed by the Department of Transportation (DOT) to consumers seeking assistance with Lemon Law claims. The recommended language of the letter includes the following statement: "I, therefore, demand that you either repair these defects within 7 business days or that you accept the return of my car and within thirty (30) days of the return provide me with a vehicle acceptable to me or a refund calculated in accordance with the Lemon Law." The obvious problem with this language, as we conclude in this opinion, is that it fails to specify which remedy the consumer is electing and proposes a third remedy.

¶ 17. Although we sympathize with any consumer who unknowingly used a DOT form with language contrary to the statutory requirements, that is not a basis to conclude that proper notice has been provided. Berends recognizes that the DOT has no legal authority to promulgate mandatory forms or to divine the legislature's intent by interpreting the statute. Nonetheless, he argues, "[A] consumer ought not be penalized for using a DOT-suggested form when that form does not directly conflict with the provisions of the lemon law statute." However, Berends offers no authority for this proposition, and we are not aware of any authority that would allow us to conclude that Berends1 notice is adequate on grounds that it conforms with a DOT form.

¶ 18. We note for the reader's benefit that it appears the DOT has amended its form. The form currently available on the DOT'S website requires the consumer to check a single box specifying a request for a new vehicle or return of the purchase price. The form does not propose repair as a third solution. The form also explicitly states, "I offer to return my vehicle and transfer title after the manufacturer meets my demand for Lemon Law relief."

D. Mack Truck's failure to seek clarification of the notice does not render Berends' notice sufficient

¶ 19. Berends argues that even if his notice was deficient, Mack Truck's failure to respond to the notice within thirty days, if only to clarify Berends' intent, produces a result contrary to the intent of the Lemon Law. He explains, "If Mack Truck truly were confused by Berends' letter and it needed some explanation as to what he was proposing, Mack Truck could have so stated in a letter or a telephone call prior to the expiration of the 30-day period." Even if this is true, it does not negate Berends1 duties as a consumer under the Lemon Law.

¶ 20. Our reasoning is supported by Church. The consumer in Church filed a valid notice under Wis. Stat. § 218.015(2), offering to transfer title of the vehicle to the manufacturer in return for a refund of the full purchase price. Church, 221 Wis. 2d at 464. The manufacturer responded that it would agree to repurchase the vehicle and set forth a detailed computation of its proposed refund. Id. However, the parties could not agree on the correct amount of the refuiid and continued to correspond about the proper amount due. Id.

¶ 21. Thirty-three days after filing her notice, the consumer filed suit against the manufacturer. Nearly two weeks later, the manufacturer gave the consumer a check for the still-disputed purchase price. Id. In response to the suit, the manufacturer argued that although it paid the consumer more than thirty days after the consumer gave its statutory notice, it was not liable under the Lemon Law because the process of negotiating the appropriate amount of the purchase price restarted the thirty-day time limit found in Wis. Stat. § 218.015(2)(c). Church, 221 Wis. 2d at 468.

¶ 22. We rejected the manufacturer's argument, holding that the burden remains on the manufacturer to comply with the thirty-day requirement regardless of whether items or amounts are in dispute, because "[t]o hold otherwise would undo the purpose of the statute." Id. at 469. Accordingly, we stated, when the parties cannot agree on the correct amount of the refund, the Lemon Law gives the manufacturer two options: (1) pay the amount demanded by the purchaser within the thirty-day period; or (2) pay the amount which the manufacturer deems appropriate within the thirty-day period. Id. If the fact-finder ultimately concludes that the manufacturer paid too little, then the manufacturer suffers the penalties imposed by Wis. Stat. § 218.015(7), including double damages and attorney fees. Id.

¶ 23. In Church, we recognized that "the rigidity of the thirty-day requirement places the manufacturer in a difficult position with attendant risk." Id. However, we continued, "If its requirements prove to be too rigid and its results unreasonably harsh, it is a problem for the legislature, not this court, to resolve." Id. at 470. The same reasoning applies here. Given the significant penalties facing a manufacturer that fails to provide a remedy within thirty days in response to a proper notice, it is only fair to require consumers to follow the unambiguous requirements of Wis. Stat. § 218.015(2) so that there is no question that a manufacturer must respond or face the consequences.

Conclusion

¶ 24. We agree with the circuit court's conclusion that Berends' notice to Mack Truck was deficient on two independent grounds: (1) it failed to specify whether he wanted a new vehicle or a return of the purchase price; and (2) it offered a third solution not contemplated by Wis. Stat. § 218.015(2)(b). Accordingly, we affirm the summary judgment in Mack Truck's favor.

By the Court. — Judgment affirmed.

       Wisconsin's Lemon Law was renumbered Wis. Stat. § 218.0171 effective April 19, 2000. See 1999 Wis. Act 31 § 287. Here, the applicable statute is Wis. Stat. § 218.015 (1997-98). Accordingly, all statutory references are to the 1997-98 version. However, we note for the reader's benefit that the statutory language relevant to this appeal was not substantively amended in the course of renumbering and, therefore, our statutory interpretation is equally applicable to § 218.0171 (1999-2000).

       The third basis for the judgment was based on Wis. Stat. § 218.015(2)(c), which provides that the consumer "shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer." Because we affirm the judgment on two other grounds, we decline to address whether a consumer must explicitly state an intention to transfer title, or whether such an offer can be inferred from the consumer's offer to return the vehicle. However, we note for the reader's benefit that the most prudent approach would be to explicitly offer to transfer title of the motor vehicle to the manufacturer.

       WISCONSIN Stat. § 218.015(2) does not provide the actual form or require the use of specific language in the notice. Rather, the statute indicates the information that the consumer must communicate to the manufacturer.

       The circuit court specifically indicated that it was dismissing the case without prejudice because it believed Berends could file another notice asking Mack Truck to replace the vehicle. Because the parties have not asked us to consider whether any future notices would be time-barred, we decline to address whether Berends can successfully file another notice under Wis. Stat. § 218.015(2).

       WISCONSIN Stat. § 218.015(2)(b)(3) applies to leased vehicles and is inapplicable here.

       As Mack Truck notes in its brief, Berends' complaint alleges that on October 14,1999, Berends "offered to return the motor vehicle... in exchange for a comparable new vehicle." This allegation ignores the fact that Berends' letter proposed three alternative solutions: vehicle replacement, refund of the purchase price, or repair. At the circuit court hearing and on appeal, Berends acknowledges that his letter proposed three solutions.

       We do not mean to suggest that parties cannot propose alternative settlements prior to giving notice under Wis. Stat. § 218.015(2), or after litigation has commenced. However, for purposes of providing the statutory notice that triggers liability under Wis. Stat. § 218.015(2), the consumer must carefully follow the statutory requirements.

       We also note that Wisconsin lawyers were informed about the inconsistency between the statute and the DOT form in a June 1996 article that appeared in Wisconsin Lawyer magazine. See Edward Gruntzner, "Practical Tips to Squeeze Those Sour Lemons," 69 Wisconsin Lawyer 27 (June 1996). The article states,
      The Division of Motor Vehicles provides two sample form letters for consumer use in making lemon law claims, but neither accurately represents the legal requirements. Form A gives the manufacturer the option to replace the vehicle or refund the purchase price. The lemon law provides, however, that the option is the consumer's. The attorney should specify which option the consumer demands: replacement or refund. Form A also demands repair of the defects within seven days of receipt of the letter. The statute does not require that the manufacturer be given an additional seven days to attempt repair.

       Berends asserts that it is unclear if the DOT currently offers multiple forms or if it distributes to consumers only the form now available on its website. Resolution of this factual dispute is irrelevant to our decision because the status of the form does not affect our conclusions.


author: SNYDER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jonathan J. English-Lancaster, Defendant-Appellant.

    Court of Appeals

      No. 01-1455-CR.

      Submitted on briefs January 25, 2002.

      Decided February 20, 2002.

    2002 WI App 74
    (Also reported in 642 N.W.2d 627.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven D. Phillips, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sandra L. Nowack, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Brown and Snyder, JJ.

       Petition to review denied 4-22-02.

   SNYDER, J.

¶ 1. Jonathan J. English-Lancaster appeals from a judgment of conviction for second-degree sexual assault and an order denying his motion for postconviction relief. English-Lancaster argues that the trial court should have declared a mistrial when a witness testified as to other acts evidence in violation of a pretrial court order to the contrary based upon a stipulation entered into by both English-Lancaster and the State. English-Lancaster argues that the curative jury instruction provided by the court was insufficient to cure the error. The State contends that English-Lancaster has waived this issue because he did not enter a contemporaneous objection to the evidence in the trial court. Alternatively, the State argues that English-Lancaster is judicially estopped from raising this argument on appeal. We reject the State's contemporaneous objection argument but we agree with its judicial estoppel argument.

¶ 2. English-Lancaster further argues that his judgment of conviction should be reversed in the interest of justice because his trial counsel gave him erroneous information during plea negotiations regarding the maximum penalty available for the plea offer from the State. We conclude that this error was corrected and English-Lancaster was provided the correct information prior to trial. We therefore affirm the judgment and order.

FACTS

¶ 3. On January 31, 2000, English-Lancaster was charged with second-degree sexual assault, by use or threat of force, contrary to Wis. Stat. § 940.225(2)(a) (1997-98). The complaint alleged that on October 23, 1999, English-Lancaster, an assistant manager at a convenience store, forced a fellow employee, S.G., to have sexual intercourse. An information filed on March 3, 2000, alleged and charged the same.

¶ 4. On April 12, 2000, English-Lancaster filed a motion in limine seeking to prohibit the State from "introducing any evidence concerning alleged acts of criminal or other misconduct by the defendant either prior to or following the date of the alleged offense charged in the complaint." At a motion hearing on May 31, 2000, trial defense counsel conceded that the State had not indicated that it would be introducing other acts evidence but he was concerned that the State's discovery materials alluded to allegations made by another individual which counsel believed could be prejudicial. Prosecutor Dennis Krueger confirmed that the police had interviewed another person in connection with the investigation but advised the trial court that the State did not intend to introduce that witness's testimony as part of its case-in-chief. The trial court then granted the defense's motion, stating, "Well, at least as to the state's case-in-chief, the court will grant the motion in limine, because it's been indicated there won't be other acts introduced."

¶ 5. On June 9, 2000, four days prior to trial, defense counsel indicated that English-Lancaster had a motion he wished to bring before the court himself. English-Lancaster asked for an adjournment in order to procure additional funds to hire a private investigator. The trial court denied this motion. At the conclusion of this hearing, defense counsel indicated that the outcome of the motion might have an effect on plea negotiations and that the matter could potentially be resolved without a trial. The trial court indicated that a change of plea could be accommodated on the day of trial; however, the court would consider imposing jury costs against English-Lancaster.

¶ 6. On June 12, 2000, the day before trial, prosecutor Krueger informed defense counsel that he would not be handling the trial. A jury trial began on June 13, 2000. Defense counsel approached the new prosecutor, Lloyd Carter, and asked whether the case could be resolved without a trial. Carter informed defense counsel that "there was an offer out there available for. . . third-degree sexual assault." According to Carter, defense counsel responded that English-Lancaster did not want to plea to a charge that would expose him to ten years' imprisonment. Defense counsel later learned that the maximum penalty for third-degree sexual assault was five years, not ten years.

¶ 7. Sometime that morning prior to trial, defense counsel informed English-Lancaster of his mistaken understanding of the maximum penalty for third-degree sexual assault, that the maximum penalty was actually five years, not the ten years he had originally declared. At the postconviction hearing, English-Lancaster testified that defense counsel told him that the actual penalty was five years and then started preparing for trial without discussing whether the plea offer was still available. Defense counsel testified that he specifically asked English-Lancaster whether he wished to accept the State's plea offer in light of the correct penalty information regarding third-degree sexual assault. Defense counsel testified that English-Lancaster insisted that he was innocent, that he was rejecting all plea offers and that he wanted a trial.

¶ 8. Trial began the afternoon of June 13, 2000. Before jury selection began, defense counsel informed the court of the error he had made in advising his client:

[DEFENSE COUNSEL]: Very briefly, Judge, I do apologize for not doing this earlier, I did have a discussion with Attorney Carter this morning. I had mistakenly informed my client of the potential penalties on the state's offer. We did rectify that situation this morning. I don't know that there was any rebanee on my original statement of the maximum penalties; nevertheless, Mr. English-Lancaster did reject the state's offer regardless of the penalties.
THE COURT: Sir, you don't need to make any comment, but if you want to — did you want to make any comment on those remarks of your attorney?
[ENGLISH-LANCASTER]: No, sir.

¶ 9. The trial then continued. During the State's case-in-chief, prosecutor Carter called City of New Berlin Police Detective Ryan Park to the stand. Park testified that during his interview of English-Lancaster:

I had asked, based upon my interview with [S.G.] and another employee where I was gathering a history of kind of the relationship between these employees, I had asked Mr. English-Lancaster if he had ever made comments of a sexual nature to [S.G.] and another employee, and he stated that he had not and that he always maintained a professional — he always remained professional at the work place.

Prosecutor Carter then asked Park whether he asked English-Lancaster any other questions about contact between him and S.G. Park testified:

Yes, I did. I had asked him if he had ever touched the buttocks of either [S.G.] or this other employee, and he responded "no.” Which I then followed up with another question, which was would there be any reason why, when I'm reviewing the videotape surveillance, would there be any reason why I would see you touching the buttocks of either [S.G.] or this other employee. And he said he didn't know, and I asked him if that was a possibility, something that I may see on the video, and he said, "Yes, it's a possibility."

Defense counsel did not enter a contemporaneous objection to this testimony.

¶ 10. However, shortly thereafter during a court-initiated recess, defense counsel complained that Park's testimony unwittingly violated the court's ruling on the motion in limine because it referred to English-Lancaster's alleged conduct toward another employee; defense counsel asked the court to instruct the jury to disregard that testimony. Prosecutor Carter indicated that he was unaware of the court's previous ruling and the trial court agreed that "there was going to be no mention of any other incidents." The parties then discussed an appropriate curative instruction. Defense counsel did not request a mistrial, only the curative instruction.

¶ 11. The trial court eventually instructed the jury as follows: "Detective Park made mention of another employee. You are to disregard that entirely as it has no bearing on this case." Defense counsel accepted the curative instruction offered by the court.

¶ 12. On June 15, 2000, the jury found English-Lancaster guilty of second-degree sexual assault and on August 17, 2000, the trial court sentenced him to twelve years in prison. On March 22, 2001, English-Lancaster filed postconviction motions asking the court to vacate his conviction and allow him to accept the plea agreement offered by the State prior to trial or, in the alternative, vacate the conviction and order a new trial. English-Lancaster argued that in rejecting the State's plea offer, he had relied on the erroneous information provided by his defense counsel that the maximum penalty was ten years when the correct maximum penalty was five years. He also argued that a cautionary instruction was insufficient to cure the error of the introduction of other acts evidence and a mistrial was necessary.

¶ 13. The trial court denied these motions after a hearing. English-Lancaster appeals from his judgment of conviction and the order denying the postconviction motions.

DISCUSSION

¶ 14. English-Lancaster argues that the trial court's curative instruction could not erase the prejudice resulting from the police officer's testimony concerning other acts evidence of sexual misconduct towards another employee. The State responds that English-Lancaster has waived this issue because he did not contemporaneously object when the evidence was introduced. Alternatively, the State contends that English-Lancaster is judicially estopped from raising the issue.

¶ 15. A contemporaneous objection enables the litigants, the lawyers and the trial court to make a record regarding the issue when the recollections of everyone are still fresh. See State v. Davis, 199 Wis. 2d 513, 518, 545 N.W.2d 244 (Ct. App. 1996). Enforcement of the contemporaneous objection rule encourages the parties to view the trial as an event of significance that should be kept as error-free as possible. Id. The rule promotes both efficiency and fairness. State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). A contemporaneous objection puts both the parties and the court on notice of the disputed issue, thereby providing a fair opportunity to prepare and address the issue in a way that most efficiently uses judicial resources. Id. If this rule of waiver did not exist, a party could lie in the weeds by not objecting and then belatedly raise the issue when it was advantageous to do so. Id.

¶ 16. The policies underpinning the contemporaneous objection rule are not present in this case. English-Lancaster properly raised the other acts issue in advance of trial via a motion in limine. See Wis. Stat. § 971.31(1). At the pretrial hearing, the State stipulated that it would not use any other acts evidence as part of its case-in-chief. Based on this stipulation, the trial court entered an order barring the use of the other acts evidence. This was an efficient and fair way to handle this issue.

¶ 17. When the State violated the stipulation and the court's order at trial, English-Lancaster did not immediately object. Instead, he first raised the issue when the jury was next excused. The State's argument for application of the contemporaneous objection rule puts English-Lancaster in a classic "Catch-22" position. By not objecting, English-Lancaster is held to waiver. By objecting, English-Lancaster draws the jury's attention to the very prejudicial other acts evidence that the trial court had already ruled inadmissible. Recalling that one of the purposes of the contemporaneous objection rule is fairness (see Davis, 199 Wis. 2d at 518), we will not apply the rule to permit such an unfair dilemma. The facts of this case do not demonstrate that English-Lancaster tactically laid in the weeds and then raised the issue later only when it was to his advantage. See Erickson, 227 Wis. 2d at 766. We reject the State's contemporaneous objection argument.

¶ 18. That brings us to the State's alternative argument that English-Lancaster is judicially estopped from making his argument. Judicial estoppel is an equitable rule applied at the discretion of the court to prevent a party from adopting inconsistent positions in legal proceedings. State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996). The purpose of judicial estoppel is to preserve the integrity of the judicial system and prevent litigants from playing "fast and loose" with the courts. Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994).

¶ 19. In Petty, the supreme court adopted three elements for invoking judicial estoppel:

First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position — a litigant is not forever bound to a losing argument.

Petty, 201 Wis. 2d at 348 (citation omitted). It is contrary to fundamental principles of justice and orderly procedure to permit a party to assume a certain position in the course of litigation which may be advantageous and then after the court maintains that position, argue on appeal that the action was error. State v. Gove, 148 Wis. 2d 936, 944, 437 N.W.2d 218 (1989).

¶ 20. English-Lancaster's request for a new trial because of testimony regarding other acts is barred by the doctrine of judicial estoppel. The police officer's testimony did violate the court's ruling regarding other acts evidence. However, defense counsel did not enter a contemporaneous objection to the testimony; English-Lancaster admits that such an objection "would have risked calling the jury's attention to the acts involving the other employee, thereby increasing the danger that the jury would draw the very inference that the pretrial motion sought to prevent."

¶ 21. However, defense counsel did bring the issue to the court's attention immediately during the next recess. Defense counsel did not ask for a mistrial but sought "a preliminary, cautionary instruction" regarding the other acts evidence. The parties then discussed an appropriate curative instruction. The trial court composed and proposed an instruction and defense counsel was specifically asked, "[D]o you want any changes to that?" Defense counsel accepted the proposed instruction as provided.

¶ 22. This is classic judicial estoppel. The position English-Lancaster took in the trial court is clearly inconsistent with the one he assumes on appeal. At trial he urged the court to generate a cautionary instruction and now he maintains that a cautionary instruction was insufficient. The facts at issue here on appeal are the same as before the trial court. Finally, English-Lancaster requested and was provided with a cautionary instruction that he expressly approved without alteration. English-Lancaster cannot advocate a certain position in the trial court (requesting a cautionary instruction) and a contrary position on appeal (that the cautionary instruction was inadequate and a mistrial was necessary). See State v. Washington, 142 Wis. 2d 630, 635, 419 N.W.2d 275 (Ct. App. 1987). The doctrine of judicial estoppel bars us from addressing this argument.

¶ 23. English-Lancaster further argues that his judgment of conviction should be reversed in the interest of justice pursuant to Wis. Stat. § 752.35 because his trial counsel gave him erroneous information during plea negotiations regarding the maximum penalty for the plea offer from the State.

¶ 24. Wisconsin Stat. § 752.35 states:

In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

English-Lancaster urges us to exercise our "broad power of discretionary reversal” because justice has miscarried because he was deprived of an adequate opportunity to consider and evaluate the plea offer made by the State. We disagree.

¶ 25. In order to reverse a conviction based upon a miscarriage of justice, we must find that there is a substantial probability that a new trial would produce a different result. Brookhouse v. State Farm Mut. Auto. Ins. Co., 130 Wis. 2d 166, 171, 387 N.W.2d 82 (Ct. App. 1986). We recognize here that English-Lancaster is not arguing that the correct information about the plea bargain would have affected the judgment of conviction but instead would have affected the disposition after judgment.

¶ 26. Defense counsel initially misadvised English-Lancaster of the maximum penalty for the State's plea offer. However, before the trial began, defense counsel discovered his error and advised English-Lancaster of the correct penalty. Despite the corrected information, English-Lancaster rejected the State's plea offer and elected to proceed to trial.

¶ 27. Defense counsel testified at the postconviction hearing that he specifically asked English-Lancaster if he wanted to accept the offer in light of the new information or wanted to proceed to trial. He gave English-Lancaster an opportunity to privately discuss the offer with his wife and when defense counsel returned, English-Lancaster informed him that he wanted to proceed to trial. Defense counsel stated that English-Lancaster rejected all pursuits of plea offers.

¶ 28. At the postconviction hearing, English-Lancaster claimed that he did not understand that he could still accept the plea offer at that late stage of the process and was unaware that he could speak up or ask about the plea offer. This assertion is belied by English-Lancaster's behavior. Defense counsel brought the mistake to the trial court's attention immediately prior to trial:

[DEFENSE COUNSEL]: Very briefly, Judge, I do apologize for not doing this earlier, I did have a discussion with Attorney Carter this morning. I had mistakenly informed my client of the potential penalties on the state's offer. We did rectify that situation this morning. I don't know that there was any reliance on my original statement of the maximum penalties; nevertheless, Mr. English-Lancaster did reject the state's offer regardless of the penalties.
THE COURT: Sir,... did you want to make any comment on those remarks of your attorney?
[ENGLISH-LANCASTER]: No, sir. (Emphasis added.)

Defense counsel stated that English-Lancaster rejected the plea offer, whether it was five or ten years' exposure, and English-Lancaster said nothing to contradict this assertion when given the opportunity.

¶ 29. Furthermore, the trial court rejected English-Lancaster's testimony that he did not understand that he could still accept the plea offer and was unaware that he could speak up or ask about the plea offer and implicitly found his testimony to be incredible. The trial court made this finding in light of the fact that at the June 9, 2000 status conference, English-Lancaster was savvy and assertive enough to speak up in court and request an adjournment. The court concluded that English-Lancaster had no difficulty communicating his wishes to the court.

¶ 30. We conclude that the error regarding the maximum penalty of the plea offer was corrected and English-Lancaster was provided the correct information prior to trial and still elected to proceed to trial. We agree with the trial court that "now the defendant wishes he had chosen otherwise based upon the result and now that he knows what the outcome is tells us he would have chosen differently when indeed, he did not."

CONCLUSION

¶ 31. We conclude that judicial estoppel bars English-Lancaster's claim that a cautionary instruction was inadequate to cure the introduction of prohibited other acts evidence. Furthermore, we conclude that any error regarding plea offer misinformation was corrected prior to trial and that English-Lancaster was given an opportunity to accept the plea offer with the corrected information and instead elected to proceed to trial. We therefore affirm the judgment and order of the trial court.

By the Court — Judgment and order affirmed.

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


author: VERGERONT, EJ.

text:
    State of Wisconsin ex rel. Jerald Treat, Petitioner-Appellant, v. Stephen Puckett, Caroline McGraw, and Corrections Corporation of America, Respondents-Respondents.
    Court of Appeals

      No. 00-2712.

      Oral argument November 29, 2001.

    Decided February 21, 2002.

    2002 WI App 58
    (Also reported in 643 N.W.2d 515.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of pro se plaintiff-appellant Jerald Treat, and the supplemental briefs of Howard B. Eisenberg, Milwaukee. There was oral argument by Howard B. Eisenberg.

      On behalf of the respondents-respondents, the cause was submitted on the briefs of and oral argument by Joely Urdan, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, EJ., Dykman and Lundsten, JJ.
   VERGERONT, EJ.

¶ 1. Jerald Treat, a Wisconsin inmate incarcerated at Whiteville Correctional Facility in Tennessee, sought review by certiorari of the decision on his security classification, and he now appeals the circuit court's dismissal of his petition. We conclude the circuit court correctly decided that the Wisconsin Department of Corrections (DOC) has the authority under Wis. Stat. § 301.21(2m) (1999-2000) to delegate to employees at a private correctional facility in another state the responsibility of conducting reviews and making recommendations on the security classifications and program assignments of Wisconsin prisoners incarcerated in that facility. However, we also conclude that the issue of Treat's risk assessment was not rendered moot by a subsequent program review and, therefore, the circuit court erred in dismissing the petition without addressing this issue. We reject Treat's other claims of circuit court error. Accordingly, we affirm in part, reverse in part and remand to the circuit court.

BACKGROUND

¶ 2. Whiteville Correctional Facility in Tennessee, which is run by the Corrections Corporation of America (CCA), is a private corporation. On April 6, 1999, the Frogram Review Committee (FRC) at Whiteville conducted a "program review" for Treat, reviewing his security classification and program assignments. Treat was present at the review and requested that his security classification be changed from medium to minimum custody. The PRC recommended that it remain at medium level. Treat requested review of the recommendation by Stephen Puckett, Director of the Office of Classification for DOC, and Puckett affirmed that recommendation.

¶ 3. Treat sought review by certiorari in Dane County Circuit Court, claiming that CCA did not have authority under Wisconsin law to conduct program reviews, that the Whiteville PRC improperly applied DOC's risk-rating system to assess his risk, and that there were certain procedural irregularities in the review. After various preliminary issues had been resolved by the court, Treat moved to file a supplemental petition alleging that on August 12, 1999, he had another program review before the PRC at Whiteville on his security classification. At this review, he again requested a change to minimum custody and the PRC again recommended that he remain in medium custody. Treat's proposed supplemental petition raised the same issues of the lack of the Whiteville PRC's authority under Wisconsin law and the error in the application of DOC's risk-rating system with respect to this review. In addition, the proposed supplemental petition asserted new claims — negligence and constitutional claims — and requested much broader relief than a reversal of Puckett's decision — injunctive and declaratory relief and damages. The circuit court ruled that it would hold Treat's motion to supplement in abeyance until a response to the original petition was filed, concluding that this was the most efficient way to proceed.

¶ 4. Puckett responded to the petition with a motion to quash the writ of certiorari and dismiss the petition on the ground that the August 1999 program review had rendered moot all issues raised in Treat's original petition. The circuit court granted Puckett's motion and dismissed the action without addressing Treat's motion to supplement the petition. The court first concluded that although there was merit to one of the procedural errors Treat raised with respect to the April 1999 program review, the August 1999 program review rendered that issue moot. The circuit court then concluded that CCA did have authority to conduct program reviews of Treat because Wis. Stat. § 301.21(2m)(a) authorized DOC to enter into contracts with private facilities in other states for the confinement of Wisconsin inmates. The court did not address Treat's other challenges to the April 1999 program review.

DISCUSSION

¶ 5. On appeal Treat contends the circuit court erred by: (1) ruling that the Whiteville PRC had the authority under Wisconsin law to conduct his program review; (2) not addressing his claim that the Whiteville PRC improperly applied the DOC risk-rating system to assess his risk; (3) not ruling on his motion for a default judgment against CCA and Caroline McGraw, a CCA employee; and (4) not ruling on his motion to supplement his petition before dismissing the action.

¶ 6. We first address Treat's contention that DOC does not have the authority under Wisconsin law to delegate to CCA the responsibility to conduct program reviews of Wisconsin inmates, and therefore the Whiteville PRC did not have the authority to conduct his April 1999 review.

¶ 7. DOC is directed by Wis. Stat. § 301.03(2) to "[sjupervise the custody and discipline of all prisoners." The parties implicitly agree that this includes determining the security classification of the prisoners and the programs they are assigned to. There is also agreement that DOC, as an administrative agency, has only those powers that are expressly conferred by statute or necessarily implied from the statute under which it operates. Wisconsin Power & Light Co. v. PSC, 181 Wis. 2d 385, 392, 511 N.W.2d 291 (1994).

¶ 8. Finally, both parties agree that DOC's authority to delegate to employees of CCA the responsibility to review inmates' security classifications and program assignments is found, if anywhere, in Wis. Stat. § 301.21(2m). This subsection provides in part:

(2m) (a) The department may enter into one or more contracts with a private person for the transfer and confinement in another state of prisoners who have been committed to the custody of the department. Any such contract shall provide for all of the following:
1. A termination date.
2. Provisions concerning the costs of prisoner maintenance, extraordinary medical and dental expenses and any participation in or receipt by prisoners of rehabilitative or correctional services, facilities, programs or treatment, including those costs not reasonably included as part of normal maintenance.
3. Provisions concerning any participation in programs of prisoner employment if any, the disposition or crediting of any payments received by prisoners on account of employment, and the crediting of proceeds from or disposal of any products resulting from employment.
4. Delivery and retaking of prisoners.
5. Regular reporting procedures concerning Wisconsin prisoners by the private person with which the department is contracting.
6. Provisions concerning procedures for probation, parole, extended supervision and discharge.
7. The same standards of reasonable and humane care as the prisoners would receive in an appropriate Wisconsin institution.
8. Any other matters as are necessary and appropriate to fix the obligations, responsibilities and rights of Wisconsin and the private person with which the department is contracting.
(c) Any hearing to consider parole to which a prisoner confined under a contract under this subsection may be entitled by the laws of Wisconsin shall be conducted by the Wisconsin parole commission under rules of the department.

¶ 9. In order to resolve the issue of DOC's authority, we must interpret Wis. Stat. § 301.21(2m), and, because this presents a question of law, our review is de novo. Evers v. Sullivan, 2000 WI App 144, ¶ 5, 237 Wis. 2d 759, 615 N.W.2d 680, review denied, 2000 WI 121, 239 Wis. 2d 312, 619 N.W.2d 94 (Wis. Oct. 17, 2000) (No. 00-0127).

¶ 10. The aim of all statutory construction is to discern the intent of the legislature. We look first to the language of the statute to determine whether it plainly conveys the legislature's intent. Id. When our inquiry is directed at whether the legislature intended to grant a particular power to an administrative agency, we first examine the language of the statute to determine whether it expressly grants that power; if it does, we conclude the legislature intended the agency to have that power. If the power is not expressly granted, we decide whether it is necessarily implied — either because it is necessary to carry out the purpose of the statute, see Watkins v. LIRC, 117 Wis. 2d 753, 760-61, 345 N.W.2d 482 (1984), or necessary to fully exercise the powers expressly granted, Baldwin v. LIRC, 228 Wis. 2d 601, 616-17, 599 N.W.2d 8 (Ct. App. 1999), or necessary to perform an express duty, Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 612, 547 N.W.2d 578 (1996).

¶ 11. In Evers, 2000 WI App 144 at ¶ 15, we held that although Wis. Stat. § 301.21 did not expressly authorize DOC to transfer inmates to the facilities with which it was permitted to contract, the only reasonable reading of the statute was that the legislature intended that DOC have the authority to transfer inmates under the contracts authorized.

¶ 12. Treat contends that Wis. Stat. § 301.21(2m) does not expressly authorize DOC to delegate to a facility with which it contracts the responsibility to review security classifications and programming decisions, and such authority is not necessarily implied because it is perfectly possible to house prisoners in a facility in another state and have Wisconsin officials review their security classifications and program assignments. Puckett's position is that subd. (a)8 expressly grants DOC the authority to contract with CCA to conduct reviews of inmates' security classifications and program assignments because those are responsibilities of the State of Wisconsin — specifically, DOC— toward its inmates.

¶ 13. The premise of Treat's argument that the legislature did not expressly give DOC the authority to delegate this responsibility to the private facility by contract is that there is no provision in Wis. Stat. § 301.21(2m) specifically referring to review of security classifications and program assignments. However, we do not agree that these functions must be separately identified in order to be expressly granted. We agree with Puckett that in subd. (a) 8, the legislature expressly grants DOC authority that encompasses the authority to delegate to the private facility responsibility for reviewing inmates' security classifications and program assignments. After specifying certain items that the contract must include, the legislature plainly expressed its intent not to limit DOC's authority to contract to those specific items, but to give DOC the authority to provide by contract for "[a]ny other matters as are necessary and appropriate to fix the obligations, responsibilities and rights of Wisconsin and the private person with which the department is contracting." Section 301.21(2m)(a)8. We conclude that reviewing the security classifications and program assignments of inmates plainly comes within this provision.

¶ 14. Reviewing the security classifications and program assignments of inmates is, as we have stated above, a responsibility of DOC, and Wis. Stat. § 301.21(2m)(a)8 thus gives DOC the authority to provide for that function by contract "as . . . necessary and appropriate." There is no dispute that periodic review of inmates' security classifications and program assignments is necessary to maintain an orderly and secure correctional facility and to meet the rehabilitative needs of individual inmates. See Wis. Admin. Code §§ DOC 302.02 and 302.18 (June 1994) (describing purposes of the initial assessment and evaluation process and the purposes of the periodic program review, respectively). It is therefore necessary that the contract provide for that function, and it is appropriate for DOC to decide that personnel in the facility housing the inmates will fulfill that function to the extent of conducting periodic program reviews and making recommendations to Puckett.

¶ 15. Treat argues that the legislature logically would not have intended DOC to have the authority of delegating responsibility for review of security classifications and program assignments to a private corporation because this affects the long-term needs and programs of Wisconsin prisoners, which may require sending an inmate back to a facility in Wisconsin. However, the legislature, in its broad grant of authority under Wis. Stat. § 301.21(2m)(a)8, chose to give DOC the authority to decide how to allocate this and other responsibilities. As we have already stated, there is nothing inappropriate in DOC's decision to allow personnel in a private out-of-state facility to conduct the reviews and make recommendations to Puckett. As demonstrated by the forms used in this case for Treat's program review, a program review involves consideration of the inmate's needs, behavior, and adjustment. It is at least as appropriate to have the personnel who have regular contact with an inmate conduct the program review and make a recommendation as it is to have personnel in Wisconsin perform that function: the latter have no contact with the inmate and no ability to observe the inmate on a continuing basis. Since DOC has delegated to CCA only the responsibility for making a recommendation, Puckett retains the authority to make the final decision. Thus, Puckett may take into account the inmate's long-term needs and the advisability of the inmate returning to Wisconsin, if the PRC did not adequately do so.

¶ 16. Our interpretation of Wis. Stat. § 301.21(2m)(a)8 is supported by para, (c), which requires the Wisconsin parole commission to conduct parole hearings for inmates housed in facilities under a contract. Section 301.21(2m)(c). This indicates that the legislature understood that the broad language it used in subd. (a) 8 made it necessary to expressly exclude those functions that it did not intend to allow DOC to delegate to another party by contract.

¶ 17. Accordingly, we conclude that DOC does have the authority to provide in its contract with CCA that CCA employees conduct reviews of Wisconsin inmate security classifications and program assignments. Therefore, the circuit court correctly decided that the Whiteville PRC did have the authority to conduct Treat's program review.

¶ 18. We next address Treat's contention that the Whiteville PRC incorrectly applied the DOC risk-rating system in assessing his risk. The return filed by DOC shows that the risk assessment completed for Treat on April 1, 1999, gave him a "moderate" risk rating. This risk assessment is composed of eight separate factors, each of which may be rated "high," "moderate," or "low." Treat asserts that his "moderate" rating for one of the factors — sentence structure — should be "low" according to DOC's risk-rating manual, and that this would make his overall risk rating "low" and thus result in a minimum rather than a medium security classification under Wis. Admin. Code §§ DOC 302.14 and 302.145(3)(c) (June 1994). Since the circuit court did not address this issue, we understand the court to have implicitly concluded that this issue was moot because of the August 1999 program review. However, we conclude the August 1999 program review did not render this issue moot.

¶ 19. An issue is moot when its resolution will have no practical effect on the underlying controversy. State ex rel. Olson v. Litscher, 2000 WI App 61, ¶ 3, 233 Wis. 2d 685, 608 N.W.2d 425. More specifically, in this context the question of mootness turns upon a deter-ruination whether a decision in Treat's favor on this issue would afford him some relief that he has not already achieved by virtue of the subsequent program review. See State ex rel. Renner v. DHSS, 71 Wis. 2d 112, 116, 237 N.W.2d 699 (1976) (in context of certiorari review of parole revocation decision, question of mootness turns on whether ruling favorable to appellant will afford him some relief he has not already achieved by re-release on parole). We are to make this determination without regard to the merits of Treat's position on the issue of his risk assessment. See id.

¶ 20. A resolution of the risk assessment issue in Treat's favor will afford him relief that he has not achieved by the subsequent review. The documents filed with Treat's proposed supplemental petition show that Treat's risk assessment was the same at the time of the August review as at the April review, and the recommendation of the PRC in August was again medium security. Puckett did not present in the circuit court or before this court any facts to suggest that a resolution of the issue Treat raises with respect to his risk assessment for his April 1999 program review will not affect his current risk rating or security classification.

¶ 21. Instead, Puckett argues that this issue is moot because the only remedy Treat would be entitled to if he prevailed on this issue is a new program review, which he had in August 1999. Puckett relies on State ex rel. Clarke v. Carballo, 83 Wis. 2d 349, 265 N.W.2d 285 (1978), in support of this argument. However, Clarke does not support Puckett's position. In Clarke, the appellant asserted that the parole board did not follow its own procedures. The board moved to dismiss the appeal as moot because the appellant had a subsequent hearing before the parole board, and a majority of the court agreed. The majority concluded that the remedy for the board's failure to follow its own procedures was another hearing, and the appellant had already had another hearing. Id. at 357-58.

¶ 22. In contrast, if Treat were to prevail on his claim of error in his risk assessment and resulting security classification, he would be entitled not only to another program review, but to one that assessed his risk rating and security classification using a different — a corrected — methodology. There is no indication in the record — and Puckett does not assert — that the August 1999 review afforded Treat this relief; rather, the record indicates that Treat's risk assessment and security classification from the April 1999 review were carried forward and affected his August 1999 review.

¶ 23. Puckett asserts that if we decide the circuit court erred in dismissing the petition without deciding the risk assessment issue, we should remand to the circuit court. We agree. Puckett did not brief the issue on the merits in this court or in the circuit court because of his position that the issue was moot. It also appears that Treat filed a motion in the circuit court asking that the return he supplemented with documents he viewed relevant to this issue, and the circuit court did not decide that motion. Accordingly, we conclude the proper course is to reverse the circuit court's order dismissing Treat’s petition and remand for further proceedings on the issue of Treat's risk assessment.

¶ 24. Finally, we address Treat's assertion that the circuit court erred in failing to grant two motions he filed — one for a default judgment against CCA and McGraw, and one to supplement his petition.

¶ 25. After Puckett made an appearance through counsel in this case, but before the record was returned, Treat moved for a default judgment against CCA and McGraw because they had made neither an appearance nor any other filing in response to the petition. Subsequently, the court issued a decision vacating an earlier ruling; in this decision the court stated that Treat's motion for a default judgment was rendered moot by the decision. A short time later, after resolving certain issues regarding service of the writ, the court ordered the respondents to return the record to the court within thirty days, and a certified copy of the record was filed within that time. Puckett, through counsel, but not McGraw nor CCA, then filed the motion to quash the writ and dismiss the petition because of mootness. Treat never renewed his motion for a default judgment against CCA and McGraw, although he did continue to assert he was entitled to that in his briefs accompanying other motions.

¶ 26. We conclude the circuit court did not err in denying a default judgment against McGraw and CCA. Treat cites no authority for his premise that a default judgment, as provided in Wis. Stat. § 806.02, may be entered against respondents in a certiorari proceeding. A default judgment may be rendered under § 806.02 only "if no issue of law or fact has been joined and if the time for joining issue has expired." Section 806.02(1). However, in a certiorari proceeding there is no answer or opposing pleading that "joins" issues of fact or law. See Merkel v. Village of Germantown, 218 Wis. 2d 572, 577, 581 N.W.2d 552 (Ct. App. 1998). Rather, in response to the petition, the court issues a writ ordering that the record sought to be reviewed by the petitioner be filed with the court. Id. at 577-78. The return to the writ is merely a certificate of the record of the proceeding sought to be reviewed, and, unlike an answer to a complaint, does not consist of denials and affirmative defenses. Id. Since CCA and McGraw were not required to "join issue," § 806.02 does not apply to them.

¶ 27. Treat's contention that the circuit court erred by not ruling on his motion to supplement before dismissing the action is also without merit. Treat contends he is entitled under Wis. Stat. § 802.09(1) to amend his pleading once as a matter of course within six months from the filing of the summons and complaint, and that his motion to supplement his petition was filed within six months of the filing of the petition. However, § 802.09(4), not § 802.09(1), addresses supplemental pleadings setting forth events that have happened since the original pleading and provides:

(4) Supplemental pleadings. Upon motion of a party the court may, upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advis-áble that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

(Emphasis added.)

¶ 28. A court has the discretion to grant or deny a motion to supplement pleadings under Wis. Stat. § 802.09(4). The circuit court's decisions to hold the motion in abeyance and then to dismiss the action are, in effect, a denial of the motion. Although the court did not explain the reasons for this action, we may independently review the record to determine whether the record supports a denial of the motion as a proper exercise of discretion. See State v. Pittman, 174 Wis. 2d 255, 268, 496 N.W.2d 74 (1993). We conclude that it does. To the extent Treat sought to raise the same issues regarding the August 1999 review as he had raised regarding the April 1999 program review, there is no need to supplement the petition. To the extent Treat sought to raise issues that arose at the August 1999 program review that he had not raised regarding the April 1999 program review, it is reasonable for a court not to allow this. A review by certiorari is directed to a review of a record of a specific proceeding. If Treat supplements his petition each time he has another program review, there will be a corresponding need to supplement the record and address new issues, and one action will continue indefinitely. It is not unfair or unreasonable to expect an inmate in Treat's situation to file a petition for certiorari each time he wishes judicial review of another decision on his security classification regarding issues he has not raised in petitions for judicial review of prior decisions.

CONCLUSION

¶ 29. We affirm the circuit court's decision that the Whiteville PRC had the authority under Wisconsin law to conduct Treat's program review. We also affirm the circuit court's implicit denial of Treat's motion for a default judgment against CCA and McGraw and his motion for permission to supplement his pleading. We reverse the court's order dismissing Treat's petition and quashing the writ and remand for proceedings on one issue only: whether the determination of Treat's risk assessment and, thus, his security classification in April 1999 was inconsistent with the applicable manuals or rules.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions.

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

       Puckett also objected to supplementation of the petition.

       Treat proceeded pro se in the circuit court and initially on appeal. However, we decided to appoint counsel to present supplemental briefing and oral argument on this issue. Howard Eisenberg, Dean of Marquette Law School, graciously agreed to represent Treat pro bono for this purpose.

       At the time relevant to this appeal, Wis. Admin. Code §§ DOC 302.01-302.17 (Register, June 1994, No. 462) established an assessment and evaluation process for every inmate sentenced to a correctional institution. In that process each inmate is given a security classification, which affects the specific institution in which the inmate is placed, and assignment to particular programs within the institution, which also is affected by the security classification. Wisconsin Admin. Code § DOC 302.18(1) (June 1994) provides that a program review committee shall review "[t]he security classification, assignment to an institution and program assignment of each resident. .. not more than 6 months from the last review of classification and assignment." Section DOC 302.18(4) provides that "[e]very correctional institution and camp shall have a PRC." The procedure for a PRC review is specified in Wis. Admin. Code § DOC 302.19 (June 1994) and includes the PRC making a recommendation to the classification chief. Section DOC 302.19(4), (7).
      Nothing in the version of Wis. Admin. Code ch. DOC 302 that was in effect at the time relevant to this appeal expressly addressed program reviews for inmates incarcerated in facilities outside of Wisconsin. However, the State asserted at oral argument that the record in this case shows that the procedures prescribed by Wis. Admin. Code §§ DOC 302.18 and 302.19 were followed with respect to Treat, and Treat's position is that §§ DOC 302.18 and 302.19 must apply to inmates incarcerated in facilities outside Wisconsin. On February 1, 2002, a revised ch. DOC 302 took effect. Among other revisions, a definition of "institution" is added; it specifically includes "a facility that the department contracts with for services to inmates." Wis. Admin. Code § DOC 302.03(10) (Register, Jan. 2002, No. 553). In order to resolve this appeal, we need not decide whether the version of ch. DOC 302 in effect at the time relevant to this appeal, or any other rule, statute, or constitutional provision, required that the. procedures in that version of §§ DOC 302.18 and 302.19 apply to Wisconsin inmates incarcerated in facilities in other states.

       Our review on certiorari is limited to four inquiries: (1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary; and (4) whether the evidence provides reasonable support for the decision. George v. Schwarz, 2001 WI App 72, ¶ 10, 242 Wis. 2d 450, 626 N.W.2d 57. The issue of DOC's authority involves the first and second inquiries. Although our standard of review by certiorari is deferential when making the third and fourth inquiries, see id., when we are interpreting a statute to determine whether an agency had the statutory authority to act as it did, our review is de novo, Wisconsin Power & Light Co. v. PSC, 181 Wis. 2d 385, 392, 511 N.W.2d 291 (1994).

       The supreme court has at times expressed the standard by using the phrase "fairly implied," rather than "necessarily implied," as has this court. See, e.g., Watkins v. LIRC, 117 Wis. 2d 753, 761, 345 N.W.2d 482 (1984); Gorzalski v. Frankenmuth Mut. Ins. Co., 145 Wis. 2d 794, 801, 429 N.W.2d 537 (Ct. App. 1988). However, we understand the substance of the standard to be the same under both formulations: the court's task is to determine whether the legislature intended to give the power in question to the agency even though it did not expressly so state.
        See Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 611-12, 547 N.W.2d 578 (1996).

       Alternatively, Puckett contends that DOC's authority to delegate this responsibility is necessarily implied because review of security classifications and program assignments involves the day-to-day operation of a correctional facility.

       Since Treat does not contend that, if DOC has this authority under Wis. Stat. § 301.21(2m), the contract terms are in any way inconsistent with the statute, we need not consider the terms of the contract.

       Treat also argues in his supplemental brief that it is unlikely the legislature intended that a profit-making corporation conduct program reviews because a decision on an inmate's security classification could affect whether the inmate is sent back to a Wisconsin facility. Treat asserts that CCA has a financial interest in having inmates remain at Whiteville because under its contract it receives a per capita payment for each day each inmate is housed at Whiteville. We do not view this argument as relevant to interpreting the legislature's intent because there is no indication in the statute of the payment method to be specified in the contracts. To the extent Treat intended to raise this issue as a challenge to the impartiality of the PRC that presided at his April 1999 hearing, we do not address it because he did not raise it before the PRC, in his appeal to Puckett, or in his petition in the circuit court; and the record, even if we were to consider documents beyond those contained in the return, does not provide a sufficient factual basis for a decision on this issue. More specifically, even if we were to consider the contract between CCA and DOC, there is an insufficient factual basis for addressing the conflict-of-interest issue. Therefore, we do not decide the dispute between the parties over whether we may take judicial notice in a common law certiorari action of documents that are not part of the record returned pursuant to the writ.

       Puckett did not accompany his motion to quash due to mootness with an affidavit of factual submission, but relied on Treat's proposed supplemental petition and attached exhibits. Therefore, those are the materials we rely on in our analysis.

       Three members of the court concluded that the appellant was entitled to another hearing because nothing in the record showed that the subsequent parole hearing was conducted in conformance with the board's procedures. State ex rel. Clarke v. Carballo, 83 Wis. 2d 349, 358, 265 N.W.2d 285 (1978).

       A different analysis regarding mootness would apply to Treat's claims of procedural errors in the conduct of the April 1999 review, but those are not before us on this appeal.

       We do not agree with Puckett's assertion that the issue "is not properly before this court" because the circuit court did not decide it. In a certiorari action we review the decision of the administrative agency or official, not that of the circuit court, and our review is de novo. See George, 2001 WI App 72 at ¶ 10. Therefore, we are not precluded from addressing a challenge to the administrative decision contained in the petition for certio-rari review, even though the circuit court did not address it.

       Puckett argues that since the court did not deny either of these motions, but simply did not rule on them, the only available remedy is by mandamus. We do not agree. The effect of the court's failure to rule was a denial of the motions. Because we have jurisdiction over the final order Treat appeals, we also have jurisdiction over all non-final rulings adverse to Treat and favorable to the respondents. Wis. Stat. Rule 809.10(4). Because we are addressing the circuit court's failure to rule on these two motions on this appeal, we hereby deny Treat's motion, filed in response to Puckett's brief, to issue a writ of mandamus.

       We recognize that because Treat did not formally renew his motion for a default judgment after the court ruled it moot, and because Treat does not argue on appeal that the court's ruling on mootness was in error, we could decline to address the merits of the motion. However, because Treat might then decide to renew it after remand, we address it now.