text:
    In the Matter of Disciplinary Proceedings Against Allen E. Schatz, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Allen E. Schatz, Respondent.
    Supreme Court

      No. 04—0654—D.

      Decided February 10, 2005.

    2005 WI 10 (Also reported in 693 N.W.2d 299.)
   The Court entered the following order on this date:

Attorney Allen E. Schatz has filed a petition for consensual license revocation under SCR 22.19(4). The Office of Lawyer Regulation (OLR) has filed a response, and the referee, Dennis Flynn, has filed a report and recommendation, both of which submit that consensual revocation is appropriate. The parties and referee also submit revocation should be retroactive to August 13, 2003 when this court suspended his license pursuant to SCR 22.21 on a finding that his continued practice of law constituted a threat to the interest of the public and the administration of justice.

Attorney Schatz was licensed to practice law in Wisconsin in 1984 and had no disciplinary history prior to the August 13, 2003 suspension. The pending complaint against him alleges 32 counts of misconduct. He is also the subject of four additional pending OLR grievance investigations. His petition states that he cannot successfully defend against either the allegations in the complaint or the matters being investigated, he is freely filing this petition, he gives up his right to a public hearing and to contest to the allegations of misconduct, and he agrees to a revocation. The 11 matters from which the counts arise consist of the following.

Cheryl K. — Counts 1-4 involve personal injury and real estate matters with trust account violations under SCR 20:1.15(a) and the failure to protect the client's interest upon termination of the representation under SCR 20:1.16(d). Attorney Schatz was to have placed a $5,000 payment from the client into his trust account but converted it instead. The $5,000 has been repaid. However, he also failed to return unearned fees in the amount of $1,000 as well as a file to the client.

Kim M. — Counts 5-7 arise out of a property damage matter and concern a failure to promptly deliver client funds to the client in violation of SCR 20:1.15(b), failure to hold client property/funds in the trust account in violation of SCR 20:1.15(a), and forgery and dishonesty in violation of SCR 20:8.4(c). Attorney Schatz failed to deliver settlement proceeds to the client and forged her name on the settlement check. She has since been repaid.

Jason M. — Count 8 concerns a failure to provide competent representation in a criminal matter in violation of SCR 20:1.1. Attorney Schatz failed to file a motion for postconviction relief and a no-merit report in the court of appeals.

Antoine H. — Counts 9-11 arise out of postconviction representation of a client and involve a failure to act with reasonable diligence and promptness in representing the individual in violation of SCR 20:1.3, failing to keep the client reasonably informed about the status of the matter and to promptly comply with reasonable requests for information in violation of SCR 20:1.4(a), and failing to withdraw upon that representation upon discharge by the client in violation of SCR 20:1.16(a)3. Attorney Schatz failed to process an appeal for the client.

Julie B. — Counts 12-15 relate to a bankruptcy matter and involve a failure to file the petition in violation of SCR 20:1.3, failing to keep the client reasonably informed as to the status of the case in violation of SCR 20:1.4(a), failing to hold property/funds of the client in trust and separate from the attorney's own property in violation of SCR 20:1.15(a), and failing to surrender papers to the client upon termination of the client as well as $500 in fees that were not earned in violation of SCR 20:1.16(d).

Roger and Connie H. — Counts 16-20 relate to a bankruptcy matter and involve a failure to act with reasonable diligence and promptness in violation of SCR 20:1.3, failing to keep the clients reasonably informed about the case status in violation of SCR 20:1.14(a), failing to hold property of the clients in trust and separate from the attorney's own property in violation of SCR 20:1.15(a), failing to take steps to protect the clients' interest when the representation ended including failing to refund unearned fees of $700 in violation of SCR 20:1.16(d), and also a misrepresentation to the OLR during the investigation in violation of SCR 22.03(6) and SCR 20:8.4(f).

Pamela H. — Counts 21-24 involve a bankruptcy matter where Attorney Schatz failed to act with reasonable diligence and promptness in the case in violation of SCR 20:1.3, failed to keep his client reasonably informed about the status of the matter or to comply with reasonable requests for information in violation of SCR 20:1.4(a), failed to keep the client's property in trust and separate from his own property, in violation of SCR 20:1.15(a) and when the representation ended failed to take reasonable steps to protect his clients interests including the refund of $600 of unearned fees in violation of SCR 20:1.16(d).

Victoria S. — Counts 25 and 26 involve a bankruptcy matter where there was a failure to act with reasonable diligence and promptness in representation in violation of SCR 20:1.3 and when the representation ended a failure to take reasonable steps to protect the client's interest including the refund of $700 of unearned fees in violation of SCR 20:1.16(d).

Kim R. — Counts 27 and 28 relate to an operating while intoxicated charge where Attorney Schatz failed to act with reasonable diligence and promptness in his representation in violation of SCR 20:1.3 and failed upon termination of the representation to reasonably protect his client's interest including the refund of $750 of unearned fees in violation of SCR 20:1.16(d).

Valerie L. — Counts 29 and 30 involve a bankruptcy matter and failure to hold the client's property in trust and separate from the attorney's own property in violation of SCR 20:1.15(a). Further, when the representation ended Attorney Schatz failed to take reasonable steps to protect his client including the return of $600 of unearned fees in violation of SCR 20:1.16(a).

Dora L. — Counts 31 and 32 involve a divorce matter where Attorney Schatz failed to take reasonable steps to protect his client's interest including the return of $300 of unearned fees when the representation ended in violation of SCR 20:1.16(d). In addition, he failed to notify his client by certified mail of the fact he was suspended and unable to continue to act as her attorney in violation of SCR 22.26(l)(a) and SCR 20:8.4(f).

The four pending grievances involve: (1) Failure to take necessary steps to allow an appeal to occur in a first degree intentional homicide conviction; (2) failure to appear at scheduled court hearings for a client who was charged with possession of marijuana; (3) failure to do anything in a sentence modification matter after receiving a $500 retainer; and, (4) failure to do anything on a family court case after payment of a $750 retainer.

We determine that the petition for consensual license revocation should be granted with the date of revocation retroactive to August 13, 2003. Further, we determine that Attorney Schatz shall pay the cost of this matter and shall repay his former clients (all those mentioned above except for Kim M., Jason M. and Antoine H.) the amounts indicated with statutory interest from the date of revocation.

IT IS ORDERED that the license of Attorney Allen E. Schatz to practice law in the State of Wisconsin be revoked effective August 13, 2003.

IT IS FURTHER ORDERED that Allen E. Schatz shall comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been revoked, to the extent he has not already done so.

IT IS FURTHER ORDERED that within 60 days of the date of this order Allen E. Schatz shall repay to his former clients the unpaid amounts indicated in this order with interest at 5% from August 13, 2003.

IT IS FURTHER ORDERED that within 60 days of the date of this order Allen E. Schatz shall pay $1,996.90 to the Office of Lawyer Regulation representing the costs of this proceeding.


source: Caselaw Access Project

author: ANN WALSH BRADLEY, J.

license: Public Domain

text:
    State of Wisconsin ex rel. Leroy Riesch, Petitioner-Appellant-Petitioner, v. David Schwarz, Administrator, Division of Hearing and Appeals, Respondent-Respondent.
    Supreme Court

      No. 03-0920.

      Oral argument January 5, 2005.

    Decided February 15, 2005.

    2005 WI 11 (Also reported in 692 N.W.2d 219.)

      For the petitioner-appellant-petitioner there were briefs by Christopher J. Cherella and Law Offices of Christopher J. Cherella, Milwaukee, and oral argument by Christopher J. Cherella.

    For the respondent-respondent the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was Peggy A. Lauten-schlager, attorney general.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Leroy Riesch, seeks review of an unpublished decision of the court of appeals affirming an order denying a petition for writ of certiorari. Riesch contends that the respondent, the Division of Hearings and Appeals, acted outside its jurisdiction and contrary to Wisconsin law by revoking his parole status. Specifically, he claims that such a status never existed because he was not released from physical custody and placed on parole. Accordingly, he asserts that the State cannot revoke a status that never existed.

¶ 2. Although the issue in this case is now moot as to Riesch, we nevertheless address the merits of his argument because it is of great public importance and arises frequently enough to warrant a definitive decision to guide the circuit courts. We determine that Riesch had attained the status of a parolee after reaching his mandatory release date, despite the fact that he was not released from physical custody. Thus, we conclude that the Division of Hearings and Appeals did not act outside its jurisdiction or contrary to law when revoking his parole status. We therefore affirm the decision of the court of appeals.

H

¶ 3. In 1993, Riesch was sentenced to serve eight years in prison under the old, indeterminate sentencing system. His mandatory release date was set for July 21, 1998. In anticipation of this date, Riesch was provided with a . copy of parole supervision rules on June 29, 1998.

¶ 4. Under his parole supervision rules, Riesch was required to avoid unlawful activity and conduct that was not in the best interest of the public or his rehabilitation. He was to abide by the rules of any detention or correctional facility in which he was confined. Furthermore, he was to give true and correct information in responses to inquiries by his agent. Riesch refused to sign these rules.

¶ 5. Prior to his release date, Riesch's parole agent determined that his client needed to reside at an approved halfway house or residence because of a need for treatment associated with his underlying conviction for sexual assault. After learning that he would need to participate in treatment programming at such a facility, Riesch stated that he would not do so. Due to this recalcitrance, a parole hold was lodged against Riesch and he was transported on July 21,1998, from prison to the Dodge County Jail.

¶ 6. Upon his arrival at the jail, Riesch was not cooperative with the staff and would not provide information regarding his medical status. Additionally, he refused to sign fingerprint cards after his prints were taken. Riesch maintained that it was a violation of his constitutional rights to force him to sign anything.

¶ 7. Riesch's parole agent came to see him on July 27, 1998, to obtain a written or verbal statement from him concerning his case. The agent asked that Riesch be shackled before she talked to him. Riesch became upset and would not see the agent, as he did not want to be shackled. Consequently, he did not give a statement to her.

¶ 8. That same day, Riesch's parole agent initiated a revocation against Riesch on grounds that he failed to have a suitable residence, failed to cooperate with jail staff, failed to obey jail rules, and failed to give a statement to the agent. On September 21, 1998, an Administrative Law Judge issued a written decision revoking Riesch's parole. The Division of Hearings and Appeals (hereinafter "the Division") affirmed that decision.

¶ 9. On May 19, 1999, Riesch filed a petition for writ of certiorari, which was dismissed as untimely. He appealed, and the court of appeals affirmed. This court then denied the petition for review. Riesch's counsel filed next a petition for writ of habeas corpus. Subsequently, the parties stipulated that Riesch's petition for writ of certiorari should be reinstated.

¶ 10. After reinstating Riesch's petition for writ of certiorari, the circuit court denied the petition on the merits. In doing so, it relied upon the Macemon cases, State ex rel. Macemon v. McReynolds, 208 Wis. 2d 594, 561 N.W.2d 779 (Ct. App. 1997) (Macemon I), and State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 576 N.W.2d 84 (Ct. App. 1998) (Macemon II). Riesch appealed, and the court of appeals summarily affirmed the decision. It deemed Macemon II controlling. Riesch sought review of that decision and this court accepted his petition.

¶ 11. Since granting the petition for review in this case, we have determined that the issue presented is moot as to Riesch. "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.W2d 425. Riesch's issue satisfies this definition because he has been discharged from the conviction underlying his parole revocation, and that revocation did not delay the start of the probationary term he is now serving.

¶ 12. Appellate courts generally decline to consider moot issues but may do so under certain circumstances. State v. Morford, 2004 WI 5, ¶ 7, 268 Wis. 2d 300, 674 N.W2d 349. For example, this court has held that it may decide an otherwise moot issue if it is of great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts. Id. (citing In re John Doe Proceeding, 2003 WI 30, ¶ 19, 260 Wis. 2d 653, 660 N.W.2d 260). In this case, the issue presented falls within these exceptions, and therefore, we reach its merits.

H-I H-i

¶ 13. Certiorari review for parole revocation is limited to four questions: "(1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Thorson v. Schwarz, 2004 WI 96, ¶ 12, 274 Wis. 2d 1, 681 N.W.2d 941.

¶ 14. Here, Riesch's claim implicates the first two inquiries. He submits that the Division acted outside its jurisdiction and contrary to law in revoking his parole status because he was not on parole at the time of revocation. Resolution of these matters present questions of law subject to independent appellate review. See State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶ 10, 256 Wis. 2d 787, 650 N.W.2d 43.

HH HH HH

¶ 15. Riesch's arguments in this case present a single issue. We must determine whether an inmate such as Riesch can have the status as a parolee and be subject to revocation proceedings even though he has not been released from physical custody.

¶ 16. According to Riesch, he was not a parolee at the time of his revocatibn because he was not released from physical custody after reaching his mandatory release date. He submits that custody and parole are mutually exclusive concepts. Riesch further contends that, because inmates must be released on their mandatory release date, his transfer from a state correctional facility to a county jail on July 21,1998, meant he was a prisoner rather than a parolee when he committed the acts underlying his revocation. We address these arguments in turn.

¶ 17. Riesch begins his analysis by examining the terms "custody" and "parole." He relies on two sentence credit cases, State v. Gilbert, 115 Wis. 2d 371, 340 N.W2d 511 (1983), and State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 572 N.W.2d 864 (Ct. App. 1997), for the proposition that the terms are readily distinguishable. He advances that custody involves "incarceration, or deprivation of liberty," but that parole pertains to "the conditional privileges of freedom and liberty." Ludtke, 215 Wis. 2d at 11. Because Riesch remained in custody at all times relevant to this case, he claims that he did not have "the conditional privileges of freedom and liberty" necessary to be considered paroled.

¶ 18. Although we agree with Riesch that custody and parole are distinguishable in certain contexts, we reject the notion that the terms are always mutually exclusive. A parole hold is a classic case in point. For example, suppose Riesch had made it "out onto the streets" but was taken to the county jail as a result of a violation of his parole rules. Until he went through the proper channels, including a final revocation hearing, he would possess the dual status of parolee and prisoner. Thus, the concepts of parole and custody can and do overlap.

¶ 19. Riesch's next argum'ent is that the continuation of his custody after reaching his mandatory release date meant that he was a prisoner rather than a parolee when he committed the acts underlying his revocation. He relies on two cases to support this assertion, State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 591 N.W.2d 922 (Ct. App. 1999) and Olson, 233 Wis. 2d 685. Riesch contends that those cases are much more relevant to his factual scenario than the Macemon cases, upon which the lower courts relied.

¶ 20. According to Riesch, the Macemon cases are distinguishable because they provided no clear indication as to the status of Macemon as a "prisoner" or a "parolee" at the time of his refusal to follow the rules of the Department of Corrections (DOC). In the alternative, Riesch acknowledges that there may be a conflict between Macemon and the Woods and Olson cases. He therefore asks this court to make clear that Macemon was "effectively reversed" insofar as it conflicts with Woods and Olson.

¶ 21. We are not persuaded by Riesch's arguments. Woods and Olson are unlike the present case because the inmates in those cases did nothing to warrant their continued detention at the time of their mandatory release date. In contrast, the inmate in the Macemon cases, like Riesch, violated the conditions of his parole immediately and simultaneously with his mandatory release date. Accordingly, a parole hold was placed on him and he was revoked, despite the fact that he was kept in continuous custody.

¶ 22. In Woods, the inmate appealed an order denying his petition for writ of habeas corpus. Woods had been incarcerated at the Racine Correctional Institution and was transferred to the Sherrer Correctional Center upon reaching his mandatory release date. Four days after arriving at Sherrer, he made sexual overtures to another inmate and was placed on a parole hold. The DOC determined that the Sherrer incident was a parole violation, revoked Woods's parole, and recommitted him to the Racine Correctional Institution.

¶ 23. On appeal, Woods argued he was still a prison inmate when the State revoked his parole. Although he had signed parole rules, was supervised by a parole agent, and was permitted to leave the facility with his agent, the court of appeals agreed that Woods was a prison inmate. Woods, 224 Wis. 2d at 536. Significant to the court's decision was the fact that the conduct underlying Woods's parole hold took place several days after his mandatory release. Id. at 538 — 40. The State acknowledged that the record was silent as to why Woods was placed at Sherrer after reaching his mandatory release date. Id. at 536, n. 3.

¶ 24. In Olson, the inmate petitioned the court of appeals for writ of habeas corpus after he was detained past his mandatory release date. Olson had been transferred from one correctional facility to another on his release date because the DOC was unable to locate a suitable residence for him. Again, there was no indication that Olson had done anything to warrant the continuous custody at that time. Accordingly, the State conceded that he was entitled to release when he reached his mandatory release date and that no statute or administrative rule authorized the DOC to detain him past that point. The court of appeals agreed. Olson, 233 Wis. 2d 685, ¶ 1.

¶ 25. Unlike the inmates in Woods and Olson, Riesch engaged in conduct that warranted custody at the time of his mandatory release date. Specifically, he committed the first of the violations underlying his parole by refusing to cooperate with his social worker at the Kettle Moraine Correctional Institution (KMCI) in arranging a suitable residence plan upon his release. This took place simultaneous to the date of his mandatory release, and a parole hold was immediately lodged against him. In its decision, the Division explained why the DOC's action was not surprising in light of Riesch's failure to cooperate with his supervision plan:

Mr. Reisch was placed in jail on his mandatory release date because he stubbornly refused to cooperate with the department's efforts to implement a suitable supervision plan. His resistance to supervision began the very day he was given a copy of the rules of supervision, which he refused to sign and continued right up to the day of his release and beyond. Based on his often stated objections to the parole planning process, I am satisfied that Mr. Reisch knew full well why he had been taken to jail rather than being simply released to the community. The department was not required to wait until Mr. Reisch committed a crime before it took steps to protect the public. That is particularly true since Mr. Reisch was a sex offender who was totally rejecting active supervision. That stubborn contempt for the parole supervision process could not be ignored and required active intervention to protect the public from the risk that Mr. Reisch might commit serious crimes if he were simply released to the community under his own terms. His behavior left the department no real choice other than revocation of parole and further confinement.

¶ 26. Because Riesch's first violation occurred immediately and simultaneously with his mandatory release date, we find the Macemon cases instructive. In Macemon I, the inmate argued that the DOC unlawfully detained him beyond his scheduled release date. The DOC had issued an order to hold Macemon in custody because of his refusal to wear an electronic monitoring bracelet and to participate in postconfinement sex offender treatment. The court of appeals held that the DOC had authority to require mandatory release parolees to submit to an electronic monitoring bracelet. Macemon I, 208 Wis. 2d at 598. It further concluded that the evidence reasonably supported the imposition of the DOC's two conditions. Id. at 599.

¶ 27. In Macemon II, the inmate asserted, among other things, that he was denied the mandatory release to which he was entitled by statute. The court of appeals dismissed this claim in summary fashion. First, it noted that Macemon's parole was revoked, not denied, and therefore there was no factual basis for the claim. Macemon II, 216 Wis. 2d at 341. Second, it rejected an argument strikingly similar to the one advanced by Riesch in this case:

Macemon also argues that "release" never took place because he "has not been out of prison clothes ... was handcuffed and leg shackled.. . [and] in continuous confinement without Release." While it is true that Macemon has never made it "out onto the streets," his release from prison was processed. However, because he refused to wear a monitoring bracelet and to participate in postconfinement sex offender treatment, see State ex rel. Macemon v. McReynolds, 208 Wis. 2d 594, 595, 561 N.W.2d 779, 780 (Ct. App. 1997), he was immediately taken into custody for failing to abide by the conditions of parole and taken to the Racine County Jail.

Id. at 341, n. 2.

¶ 28. Neither Macemon I nor Macemon II stand for the proposition that a person can be revoked from parole before being granted parole status. However, they do support the State's claim that a person can attain the status of a parolee without being released from physical custody. Given the foregoing discussion, we are satisfied that Macemon rather than Woods and Olson control this case. Even if Macemon were not controlling, however, we would still reject Riesch's claim.

¶ 29. The holding Riesch seeks today is a bright-line rule that elevates form over substance. He contends that inmates must always be released from physical custody before any revocation is commenced, regardless of whether they have signed parole rules, complied with parole rules, or cooperated with their agent. In essence, he is asking for a ritual where the DOC releases uncooperative inmates just outside the prison walls on their mandatory release dates before subsequently placing parole holds upon them. As the State succinctly stated at oral argument:

[W]hen your violation is instantaneous, occurring at the same minute, I think it would be really a charade to say, "well, we have to let this person go, take off the handcuffs, and walk 20 paces outside of the state correctional institution before we can slap the cuffs on him and take him to the nearest county jail to lodge a parole hold." I don't think that makes any sense.

We agree.

¶ 30. In the end, we are mindful that the DOC is not free to hold inmates indefinitely for such problems as failure to find suitable housing on its part. Olson, 233 Wis. 2d at 690. However, we also recognize that the DOC has substantial discretionary authority to develop the rules and conditions for release. Macemon I, 208 Wis. 2d at 597. Where inmates violate these terms immediately and simultaneously with their scheduled mandatory release dates, the DOC should be able to maintain continuous custody, even though that person's status changes from a prisoner serving a sentence to a parolee detained on a parole hold. That is precisely what happened in both this case and Macemon. We therefore conclude that the Division did not act outside its jurisdiction or contrary to law when revoking Riesch's parole.

IV

¶ 31. In sum, we determine that Riesch had attained the status of a parolee after reaching his mandatory release date, despite the fact that he was not released from physical custody. Thus, we conclude that the Division did not act outside its jurisdiction or contrary to law when revoking his parole status. We therefore affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

        State ex rel. Riesch v. Schwarz, No. 03-0920, unpublished -order (Wis. Ct. App. March 22, 2004) (affirming an order denying a petition for writ of certiorari, entered in the circuit court for Dodge County, Daniel W Klossner, Judge).

       Our recitation of the background of the case is based in part upon the findings of fact of the Administrative Law Judge, David R. Braithwaite.

       Despite this stipulation, the State now asks this court to dismiss Riesch's appeal for want of subject matter jurisdiction. According to the State, when Riesch filed his petition for writ of habeas corpus, he was subject only to the restraint associated with being on probation, which was imposed in an unrelated case. Like the court of appeals, we decline to address this argument. We do so in part because this case is moot. Additionally, we note that the record is unclear as to the circumstances surrounding Riesch's original disposition, that is, whether the probation imposed was for a different sentence or whether it was part of a continuous sentence. Thus, we choose instead to focus on the underlying issue.

       Although Riesch questions the status of Macemon as a parolee, we do not. In State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 338, 576 N.W.2d 84 (Ct. App. 1998), the court of appeals began its opinion by stating: "Robert Macemon appeals from a circuit court order denying his writ of certiorari which challenged his parole revocation." Furthermore, the court described that appeal as Macemon's "second challenge to his revocation." Id. Finally, it noted that in its earlier case it had "determined that Macemon's parole was revoked, not denied." Id. at 340-41.

       Both the Administrative Law Judge and the Division found that Riesch's violations began on his mandatory release date, July 21, 1998, and continued through July 27, 1998.

       Throughout its decision, the Division mistakenly refers to Riesch as "Reisch."

       There is no indication that Riesch's parole rules here were either arbitrary or unreasonable. If they were, then the arguments and the analysis would present a different case.


author: JON E WILCOX, J. JON E WILCOX, J.

text:
    Jessica Mayberry, Plaintiff-Appellant, v. Volkswagen of America, Inc., Defendant-Respondent-Petitioner.
    Supreme Court

      No. 03-1621.

      Oral argument November 4, 2004.

    Decided February 16, 2005.

    2005 WI 13
    (Also reported in 692 N.W.2d 226.)

      For the defendant-respondent-petitioner there were briefs by Bruce D. Huibregtse, Drew J. Cochrane, and Stafford Rosenbaum LLP, Madison, and oral argument by Drew J. Cochrane.

    For the plaintiff-appellant there was a brief by Matthew J. McClenahan and Krohn & Moss, Ltd., Chicago, IL, and oral argument by Scott Cohen.

   JON E WILCOX, J.

¶ 1. This is an appeal from a published court of appeals decision, Mayberry v. Volkswagen of America Inc., 2004 WI App 64, 271 Wis. 2d 258, 678 N.W.2d 357, that reversed an order of the Outagamie County Circuit Court, Harold V Froehlich, Judge, which granted summary judgment to Volkswagen and dismissed the plaintiffs claims for breach of warranty.

I. ISSUE

¶ 2. The issue on appeal concerns the proper measure of damages under Wisconsin's Uniform Commercial Code in a breach of warranty action. We must determine what constitutes the appropriate measure of damages where the buyer alleges that the product was defective and not worth what she paid for it at the time of acceptance but nonetheless used the product for a significant period of time and later resold the product for more than its fair market value after the manufacturer made several attempts at repairing the product. Specifically, the issue before us is whether the "special circumstances" clause in Wis. Stat. § 402.714(2) (2001-02) requires damages in a breach of warranty action to be calculated based on the difference between the fair market value of the defective product at resale and the price the consumer actually obtained, such that a consumer's claim may be barred if she receives more than the fair market value for the defective product upon resale. This is an issue of first impression in Wisconsin.

¶ 3. We reject Volkswagen's claim that the "special circumstances" language in § 402.714(2) prevents the plaintiff from maintaining her action by calculating damages based on the difference in market value and actual price at the time of resale. We hold that pursuant to § 402.714(2), the appropriate method for measuring damages in this case is the difference between the warranted value of the vehicle in question and its actual value at the time and place of acceptance. When the plaintiff has established a prima facie case of damages under this standard, the "special circumstances" clause of § 402.714(2) should not be construed so as to completely bar her breach of warranty claim simply because she used the defective product for a period of time and later resold it for more than its fair market value. We have found no authority that stands for the proposition that the proper measure of damages under the Uniform Commercial Code in such circumstances is the difference between the market value and actual price obtained for the defective product at the time and place of resale. However, the price of the defective product upon resale may be relevant insomuch as it constitutes circumstantial evidence of the actual value of the product in its defective condition at the time and place of acceptance.

¶ 4. Because the circuit court applied an incorrect standard for measuring damages, we affirm the decision of the court of appeals reversing the circuit court's order of summary judgment.

II. FACTUAL BACKGROUND

¶ 5. On October 14, 2000, the plaintiff, Jessica Mayberry, purchased a new 2001 galactic blue Volkswagen Jetta GLS from Van Dyn Hoven Imports in Appleton, Wisconsin. The cash price of the vehicle was $17,800. After sales tax, registration, title, and other fees, the price of the vehicle came to $18,526. However, according to Mayberry, the total purchase price of the vehicle came to $22,548 after adding finance charges. As part of the vehicle purchase, the manufacturer, Volkswagen, issued a two-year or 24,000 mile limited warranty for the Jetta. Under the terms of the written warranty, Volkswagen agreed to repair any manufacturer's defect in material or workmanship and replace defective parts free of charge for the warranty period. However, the warranty did not give Mayberry the right to a refund or replacement of the vehicle if it was defective.

¶ 6. Shortly after taking possession of the Jetta, Mayberry began experiencing problems with the vehicle. Service records from Van Dyn Ho ven indicate that Mayberry brought the vehicle in for service on a number of occasions for various problems. The problems consisted of a broken armrest, intermittent illumination of the "check engine" light, and burning and leaking oil. The engine problems culminated in the replacement of a piston ring in the engine on November 29, 2001. On all occasions, the vehicle was inspected or repaired free of charge under the warranty. Thereafter, Mayberry attempted to revoke acceptance of the vehicle in writing. Volkswagen refused the revocation.

¶ 7. On June 3, 2002, Mayberry filed suit against Volkswagen under the federal Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. (2000), asserting three causes of action. First, Mayberry alleged that Volkswagen breached its written warranty for the vehicle. Second, Mayberry contended that Volkswagen breached its implied warranty of merchantability under 15 U.S.C. §§ 2301(7) & 2308. Finally, Mayberry claimed that she revoked her acceptance under 15 U.S.C. § 2310.

¶ 8. Subsequently, Mayberry traded in her Volkswagen for a 2003 Mazda Tribute at Mazda Knoxville. Mayberry received $15,100 as a trade-in allowance for the Jetta. The total purchase price of the Mazda Tribute was $24,149.32. At the time of the trade-in, the mileage on the Jetta was 32,737. On November 8, 2002, Mayberry amended her complaint to reflect the trade-in of the Jetta. As an affirmative defense to the amended complaint, Volkswagen alleged that Mayberry "suffered no damages as she received more than the full fair market value for the vehicle which is the subject of the action at the time of the trade in."

III. PROCEDURAL POSTURE

¶ 9. On February 18, 2003, Volkswagen moved for summary judgment on the ground that Mayberry did not suffer any damages as a result of the allegations set forth in her complaint. Specifically, Volkswagen argued that Mayberry was "unable to prove that she suffered any compensable damages" because "Mayberry traded in the vehicle for more than fair market value." In addition, Volkswagen argued that Mayberry's extended use of the vehicle and subsequent trade-in for more than fair market value invalidated her revocation of acceptance claim because she could not demonstrate that the value of the Jetta was substantially impaired.

¶ 10. In response to the summary judgment motion, Mayberry submitted the affidavit of Joseph Pen-nachio, her named expert and "retail vehicle finance specialist." Mr. Pennachio opined that Mayberry did not receive fair market value for her Jetta. He stated, based on the N.A.D.A. Official Used Car Guide, that the fair market value of the vehicle at the time of the trade-in was $15,900 and that "[t]he Fair Market Value indicated given the presumption of a private party transaction would be $17,900." However, in a letter filed with the court on April 21, 2003, Mayberry conceded: "Mr. Joe Pennachio's report appears flawed. While Mr. Pennachio asserts the FMV of the vehicle at the time of sale was $15,900.00 it is true that the N.A.D.A. Official Used Car Guide states that the applicable FMV of this vehicle for trade in is $14,200.00."

¶ 11. In addition, Mayberry herself filed an affidavit, stating:

Based on the problems with the Jetta that I experienced, it is my opinion that I paid too much money for the vehicle. I believe that the Jetta was not worth $18,526.001 paid at the time I purchased it and at most was worth only $12,526.00 based on the problems I experienced.

¶ 12. The circuit court rendered its decision on May 7, 2003. First, the circuit court dismissed Mayberry's revocation of acceptance claim, reasoning:

Plaintiff used the car for almost two years, put 32,737 miles on it, and expired the warranty. The car was never out of service for a prolonged period of time. Plaintiff received more than FMV on a trade-in. Therefore, there was no substantial impairment of the value of the goods and no effective revocation.

¶ 13. Furthermore, the circuit court ruled, based on Valenti v. Mitsubishi Motor Sales of America, Inc., 773 N.E.2d 1199 (Ill. App. Ct. 2002), that Mayberry failed to establish she suffered any damages for any breach of warranty. The court reasoned:

Plaintiff argues that the Jetta was defective when she bought it and she suffered damages in having it repaired. However, she is not specific about her damages and she does not offer any evidence to dispute the FMV of the car. In fact, her expert's assessment has the FMV below what she received on trade-in. Furthermore, she was not charged for any repairs covered under the warranty.
.... Plaintiff actually received more than FMV for the Jetta. She put 32,737 miles on the car in less than two years. She has no damages.

Thus, on May 28, 2003, the circuit court entered judgment in favor of Volkswagen, dismissing Mayberry's complaint in its entirety.

¶ 14. The court of appeals reversed, concluding that the circuit court utilized an incorrect standard for measuring damages and that genuine issues of material fact concerning damages existed. Mayberry, 271 Wis. 2d 258, ¶ 1. The court of appeals concluded that under § 402.714(2), the proper measure of damages for breach of warranty is the difference between the value of goods as accepted and the value as warranted at the time and place of acceptance. Id., ¶ 10. The court stated that the evidence demonstrated that the warranted value of the vehicle was $18,000 and that Mayberry's own testimony as to the actual value of the car was sufficient to survive summary judgment. Id., ¶¶ 11-12. The court of appeals also noted that Volkswagen might be entitled to an offset for the mileage Mayberry put on the vehicle under the "special circumstances" clause of Wis. Stat. § 402.714(2). Id., ¶ 13 n.3. Therefore, the court of appeals reversed the circuit court order for summary judgment because the circuit court failed to apply the correct measure of damages in Wis. Stat. § 402.714(2) and a genuine issue of material fact existed regarding damages insomuch as Mayherry had provided testimony as to the actual value of the vehicle and Volkswagen had "offered evidence suggesting 'proximate damages of a different amount.'" Id., ¶ 15.

IV STANDARD OF REVIEW

¶ 15. This court reviews a circuit court's decision granting summary judgment independently, but we apply the same methodology as the circuit court. Smaxwell v. Bayard, 2004 WI 101, ¶ 12, 274 Wis. 2d 278, 682 N.W.2d 923. Pursuant to Wis. Stat. § 802.08(2), summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Therefore, "[s]ummary judgment should not be granted, 'unless the facts presented conclusively show that the plaintiffs action has no merit and cannot be maintained.'" Smaxwell, 274 Wis. 2d 278, ¶ 12 (quoting Goelz v. City of Milwaukee, 10 Wis. 2d 491, 495, 103 N.W.2d 551 (I960)). In determining whether summary judgment was appropriately granted, "[w]e view the summary judgment materials in the light most favorable to the nonmoving party." Id.

V ANALYSIS

¶ 16. This is a breach of warranty action under the federal Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. Mayberry filed suit under 15 U.S.C. § 2310(d)(1), which allows a consumer to bring suit against a warrantor in any state for failure to comply with its obligations under a written warranty or implied warranty. Mayberry alleged that Volkswagen failed to comply with its written warranty. In addition, Mayberry claimed that Volkswagen breached its implied warranty under 15 U.S.C. §§ 2301(7) & 2308. Pursuant to 15 U.S.C. § 2310(d)(1)(A) and 15 U.S.C. § 2311(b)(1), state law governs the appropriate measure of damages for breach of warranty under the Magnuson-Moss Act. MacKenzie v. Chrysler Corp., 607 F.2d 1162, 1166 (5th Cir. 1979).

¶ 17. We begin by noting that we are not presented with any issue concerning whether Volkswagen actually breached any of its warranties in this case. Rather, the appeal concerns only the issue of what measure of damages is appropriate in this case. Thus, for purposes of this appeal, we will assume that Mayberry's allegations regarding Volkswagen's breach of warranties are true.

¶ 18. Wisconsin's Uniform Commercial Code governs the remedies available for transactions involving the sale of goods. Wisconsin Stat. § 402.714(2), governing a buyer's damages for breach of warranty, provides:

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

Wis. Stat. § 402.714(2).

¶ 19. Volkswagen argues that while § 402.714(2) provides that the usual means for calculating damages for breach of warranty is the difference in value at the time and place of acceptance between the product as warranted and the product as received, the statute specifically allows for an alternate damage calculation when special circumstances show proximate damages in a different amount. Volkswagen contends that special circumstances are present here because under the standard calculation, Mayberry would reap a windfall, as Volkswagen repaired the vehicle free of charge under the warranty, Mayberry was able to use the vehicle for a substantial period of time, and Mayberry later resold the vehicle for more than its fair market value. Volkswagen points to a series of cases that allow damages to be calculated at the time and place of replacement and asserts that we should follow the Illinois Court of Appeals' decision in Valenti, which held that a consumer cannot prove damages when she resells the vehicle for more than its fair market value. Volkswagen contends that because Mayberry received more than fair market value for the Jetta on resale, she has no damages and thus has no case.

¶ 20. In contrast, Mayberry argues that we should follow the default rule for calculating damages as contained in § 402.714(2). Mayberry states that Valenti has been overruled by Bartow v. Ford Motor Co., 794 N.E.2d 1027 (Ill. App. Ct. 2003), and conflicts with the language of § 402.714(2). Further, Mayberry asserts that the special circumstances clause is applicable only where the standard method for calculating damages is insufficient to compensate the plaintiff for her loss or the goods in question are unique with no ready market. Mayberry states that Volkswagen is attempting to turn the special circumstances clause on its head and use it to preclude her from any recovery. Mayberry notes that she presented a prima facie case of damages by presenting evidence of the value of the vehicle as warranted (its purchase price) and testified as to the actual value of the vehicle at the time and place of acceptance. Thus, the crux of the dispute before us is the interpretation of the "special circumstances" language contained in § 402.714(2) and what effect, if any, a purchaser's use and subsequent resale of an allegedly defective vehicle has on the her ability to recover damages.

¶ 21. For purposes of construction, Wis. Stat. § 401.102(1) directs that "[c]hapters 401 to 411 shall be liberally construed and applied to promote its underlying purposes and policies." One of the driving underlying policies of the Uniform Commercial Code is "[t]o make uniform the law among the various jurisdictions." Wis. Stat. § 401.102(2)(c). Regarding remedies, Wis. Stat. § 401.106(1) provides: "The remedies provided by chs. 401 to 411 shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed . . .."

¶ 22. In addition, the Official Comments to the Uniform Commercial Code § 2-714 explain that "[i]n general this section adopts the rule of the prior uniform statutory provision for measuring damages where there has been a breach of warranty as to goods accepted, but goes further to lay down an explicit provision as to the time and place for determining the loss." Official Comment 1 U.C.C. § 2-714 (1962). Moreover, "[s]ubsection (2) describes the usual, standard and reasonable method of ascertaining damages in the case of breach of warranty but it is not intended as an exclusive measure." Official Comment 3, U.C.C. § 2-714 (1962).

¶ 23. Further, as one court has explained: Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309 (Iowa 1995) (quoting James J. White & Robert S. Summers, Uniform Commercial Code § 11-5, at 536 (3d ed. 1988)).

The measure of damages in section [2-714(2)] has been referred to as "direct economic loss." Such losses are "damage flowing directly from insufficient product quality." So they include "ordinary loss of bargain damages: the difference between the actual value of the goods accepted and the value they would have had if they had been as warranted."

¶ 24. It is with this understanding of the Uniform Commercial Code that we address the parties' arguments. The core of Volkswagen's argument is that special circumstances are present when an automobile purchaser uses the vehicle for an extended period of time, the manufacturer makes numerous repairs free of charge under its warranty, and the consumer later resells it for more than its fair market value. According to Volkswagen, under these circumstances, damages should be calculated based on the actual value and fair market value of the vehicle at the time of resale. Volkswagen relies principally on the Valenti decision for this proposition.

¶ 25. Valenti involved a fact scenario very similar to the case at bar. There, the plaintiff purchased a new vehicle with a limited warranty and began experiencing problems with it shortly after she took possession. Valenti, 773 N.E.2d at 1200-01. She later brought suit under the Magnuson-Moss Warranty Act for breach of express and implied warranties after the vehicle was taken in for service on several occasions. M The plaintiff subsequently sold the vehicle and the circuit court granted summary judgment on this basis. Id. at 1201-02.

¶ 26. On appeal, the Illinois Appellate Court noted that the uncontested evidence indicated that the plaintiff had received more than fair market value for the vehicle. Id. at 1202. The appellate court, in upholding the grant of summary judgment, stated that the plaintiff was required to prove damages with reasonable certainty and ruled: "Plaintiff here cannot meet this burden where the undisputed facts show that plaintiff sold the car at its fair market value, despite the alleged defect of which she now complains." Id. at 1203.

¶ 27. Mayberry asserts that Valenti was overruled by the Illinois Appellate Court in Bartow. In Bartow, another Magnuson-Moss Warranty Act case, the defendant contended that the plaintiff lacked standing to maintain a claim under the Magnuson-Moss Warranty Act because she resold the vehicle and its warranty prior to filing suit. Bartow, 794 N.E.2d at 1028-29. The Illinois Appellate Court ultimately rejected "the defendant's assertion that resale of the object at issue precludes a buyer from suing for breach of warranty .. .." Id. at 1037.

¶ 28. We are not persuaded that the Bartow decision is controlling in this case. The only issue in Bartow was "whether the plaintiff had standing to bring her cause of action . . . ." Id. at 1029. The court never mentioned the Valenti decision and did not address whether resale of a vehicle qualifies as a special circumstance under U.C.C. § 2-714(2) sufficient to deviate from the standard calculation of damages.

¶ 29. However, ultimately, we are not persuaded by the rationale of Valenti either. First, in Valenti, the appellate court never discussed the "special circumstances" language contained in U.C.C. § 2-714(2). In addition, the court stated that damages for a breach of warranty claim are calculated "on the date of the breach." Valenti, 773 N.E.2d at 1203. This statement is contrary to U.C.C. § 2-714(2), which provides that damages are calculated at the time and place of acceptance. Thus, the Valenti decision was not applying the pertinent language of the Uniform Commercial Code at issue in this case. More importantly, unlike the plaintiff in the present case, the plaintiff in Valenti maintained that she did not have to show damages at the summary judgment stage and provided no evidence of the actual value of the vehicle at the time and place of acceptance. Id. at 1202-03.

¶ 30. These unique facts of Valenti were recognized in Cohen v. AM General Corp., 264 F.Supp.2d 616 (N.D. Ill. 2003). In Cohen, the plaintiffs leased a new Hummer for $84,000 and brought suit under the Magnuson-Moss Warranty Act for breach of warranty after experiencing problems with the vehicle. Id. at 618. After filing suit, and three years after signing the lease, the plaintiffs traded in the vehicle and received $49,000. Id. The defendant, relying on Valenti, argued that the plaintiffs could not prove damages because they sold the vehicle for fair market value. Id. at 621. The court disagreed and distinguished Valenti on the basis that the plaintiff in Valenti never alleged that the vehicle was defective from the moment she took possession. Id. at 621-22. The court held that the proper measure of damages was the difference in value at the time plaintiffs accepted the vehicle. Id. at 622. The court stated that the fact the plaintiffs were able to trade in the vehicle for its fair market value merely created an issue of material fact as to the quality of the vehicle at the time of acceptance. Id. However, despite the similarities with the present case, the Cohen court, as in Valenti and Bartow, did not address the applicable Uniform Commercial Code language and did not consider whether the plaintiffs' use of the vehicle and subsequent resale constituted a "special circumstance."

¶ 31. Volkswagen also relies on Harlan v. Smith, 507 So.2d 943 (Ala. Civ. App. 1986). In Harlan, the plaintiff purchased a used mobile home and filed suit against the seller after discovering numerous defects over the course of several weeks. Id. at 944. The defendant moved for summary judgment on the ground that the plaintiff submitted insufficient evidence of damages to support his breach of warranty claim because he failed to introduce evidence of the difference in value of the mobile home at the time and place of acceptance. Id. at 944-45. The court noted that under Alabama's Uniform Commercial Code, the measure of damages in a breach of warranty action is the difference in value between the goods as warranted and the actual value at the time and place of acceptance and that failure to introduce evidence regarding the difference in value bars the claim. Id. at 945. The court stated that while the plaintiff did not present evidence as to the actual value of the mobile home the day it was accepted, he presented his opinion as to what the mobile home was worth after he discovered all of the defects six weeks later. Id. The court held that the plaintiffs use of the mobile home without notice of the defects constituted a special circumstance that took the case outside the normal time and place of acceptance measure of damages and that therefore the plaintiff presented sufficient legal evidence as to the amount of damages. Id.

¶ 32. Because the court in Harlan utilized the "special circumstances" exception to allow the plaintiff to recover, this decision is not helpful to Volkswagen's position. Harlan did not construe the "special circumstances" exception in a manner that would bar the plaintiff from maintaining a claim. Harlan does not stand for the proposition that damages may be calculated based on the difference in market value of the product and its actual price at the time and place of resale.

¶ 33. Volkswagen also cites to a number of cases involving breach of warranty of title for the proposition that when a purchaser uses an automobile for a significant period of time, special circumstances are present and damages may be calculated based on the difference in value at the time the plaintiff is dispossessed of the vehicle. Petr's Br. at 25. However, breach of warranty of title cases present unique concerns not present in most breach of warranty cases. Therefore, we believe the rule utilized in breach of warranty of title cases is inapplicable here.

¶ 34. Under the standard damage calculation in a breach of warranty of title case, the value of the vehicle as warranted is generally the purchase price, and the actual value of the vehicle as accepted is zero because of the defective title. Courts hold that special circumstances exist in these cases and it is appropriate to calculate damages based on the value of the goods at the time of dispossession "because it would be unjust to allow the purchaser unfettered use and possession of the goods for a substantial period of time and then allow recovery of the full purchase price paid for the goods." Canterra Petroleum, Inc. v. Western Drilling and Mining Supply, 418 N.W.2d 267, 275 (N.D. 1987) (emphasis added). Thus, the rule in breach of warranty of title cases is premised on a concern over allowing the plaintiff to completely undo the transaction, recover the full purchase price, and receive the additional benefit of substantial use of the vehicle. See Roy Anderson, 1 Damages Under UCC § 10:12, at 10-57 to 10-58 (2003). In essence, courts conclude that plaintiffs would receive a windfall if they were able to use the vehicle for a substantial period of time and yet obtain a full refund of the purchase price of the vehicle.

¶ 35. This concern is not present in the current case. Utilizing the standard measure for calculating damages in the present case would not result in May-berry recovering the full purchase price of the vehicle. In breach of warranty of title cases, the product has no actual value to the consumer because the consumer does not legally own the vehicle. Here, Mayberry is merely seeking to recover the diminished value of the vehicle due to its defective condition. Mayberry does not allege that the Jetta was valueless to her at the time of acceptance; rather, she alleges she paid too much for the vehicle given its defective condition. Taking the consumer's use of the vehicle into account when calculating damages makes sense when there is a defective title and the consumer is essentially seeking to undo the transaction; however, when a consumer is merely seeking benefit of the bargain damages, her use of the vehicle has no bearing on the question.

¶ 36. As such, we have found no authority that stands for the proposition that the proper measure of damages under the Uniform Commercial Code is the difference between the market value and actual price of the defective product at the time and place of resale when the plaintiff alleges a breach of the manufacturer's written warranty and implied warranty of merchantability. Breach of contract remedies under the Uniform Commercial Code are designed to put the aggrieved party "in as good a position as if the other party had fully performed." Wis. Stat. § 401.106(1). Section 2-714 of the Uniform Commercial Code is designed to compensate " 'damage flowing directly from insufficient product quality.'" Beyond the Garden Gate, 526 N.W.2d at 309 (quoting James J. White & Robert S. Summers, Uniform Commercial Code § 11-5, at 536 (3d ed. 1988)).

¶ 37. Mayberry has alleged that she suffered damages because her vehicle was defective when she accepted it and she did not receive a vehicle of the quality for which she paid. The fact that Mayberry later resold the vehicle for more than its fair market value does not totally negate the fact that she did not receive the benefit of her bargain. While the amount of profit realized on the resale may be relevant to the issue of mitigation, construing the "special circumstances" clause of § 402.714(2) to completely bar the plaintiff from maintaining a claim would defeat the manifest purpose of the remedies under the Uniform Commercial Code, which are to compensate the plaintiff for her direct economic loss and place her in as good a position as if the seller had fully performed.

¶ 38. Therefore, we hold that pursuant to Wis. Stat. § 402.714(2), the appropriate method for measuring damages in this case is the difference between the warranted value of the vehicle in question and its actual value at the time and place of acceptance. Further, we conclude that Mayberry has established a prima facie case of damages sufficient to survive summary judgment under this standard.

¶ 39. The standard measure of damages under § 402.714(2) requires evidence of two values: (1) the value of the product as warranted at the time and place of acceptance and (2) the actual value of the vehicle with defects at the time and place of acceptance. As to the first value, courts generally hold that the contract price is relevant but not conclusive evidence of the value of the goods as warranted at the time and place of acceptance. Mulvaney v. Tri State Truck & Auto Body Inc., 70 Wis. 2d 760, 769, 235 N.W.2d 460 (1975). See also K & C, Inc. v. Westinghouse Elec. Corp., 263 A.2d 390, 394 (Pa. 1970) (ruling that purchase price of goods is "prima facie evidence" of the value of the goods as warranted but not conclusive because purchaser may have struck a good or bad bargain); Carlson v. Rysavy, 262 N.W.2d 27, 31 (S.D. 1978) (contract price is "strong evidence" of the value of goods as warranted but not conclusive); Lone Star Ford, Inc. v. McGlashan, 681 S.W.2d 720, 725 (Tex. Ct. App. 1984) (sales price is sufficient evidence as to the market value of goods as warranted in absence of other evidence); James J. White & Robert S. Summers, 1 Uniform Commercial Code § 10-2, at 557 (4th ed. 1995) ("[T]he purchase price of the damaged goods may be the best evidence of the value of the goods as warranted.").

¶ 40. The record in the present case contains a copy of the sales contract for the Jetta that indicates the cash price of the vehicle was $17,800 and that after taxes and fees the price came to $18,526. In addition, Mayberry alleged in her complaint that after finance charges, the total cost of the Jetta was $22,548. The parties dispute which figure — $17,800, $18,526, or $22,548 — correctly represents the value of the Jetta as warranted. This issue is not directly before us and therefore we do not directly address it. Because the record contains evidence of the purchase price of the vehicle, Mayberry has presented sufficient evidence of the value of the vehicle as warranted at the time and place of acceptance.

¶ 41. As to the second value — the actual value of the vehicle with defects at the time and place of acceptance — Mayberry submitted an affidavit stating that she believed the value of the Jetta with all of its defects was only $12,526. Volkswagen challenges whether this constitutes sufficient evidence of the actual value of the vehicle to survive summary judgment.

¶ 42. Wisconsin case law is clear that an owner of property may testify as to its value and that such testimony may properly support a jury verdict for damages, even though the opinion is not corroborated or based on independent factual data. D'Huyvetter v. A.O. Smith Harvestore Prods., 164 Wis. 2d 306, 323-24, 475 N.W.2d 587 (Ct. App. 1991). In D'Huyvetter, the court stated:

The only evidence plaintiffs produced regarding the actual value of the Harvestore at the time of purchase was ... [the plaintiffs] testimony that, in her opinion, the Harvestore was worth "nothing." In Wisconsin, the general rule is that a non-expert owner may testify concerning the value of their property, regardless of whether it is realty or personalty.... The weight to be attached to a non-expert owner's testimony is for the trier of fact.... We conclude that plaintiffs produced credible evidence at trial to establish that the ... value of the Harvestore system at the time of purchase was $0.

Id. (emphasis in original). Thus, under Wisconsin law, Mayberry's opinion as to the actual value of her car on the date of acceptance is sufficient to survive summary judgment. Volkswagen's complaints bear upon the weight and credibility of Mayberry's opinion, not its legal sufficiency.

¶ 43. While Mayberry's opinion as to the value of her vehicle may be sufficient for her to survive summary judgment, it does not necessarily follow that it will be persuasive to a jury. Although we have held that the fact that Mayberry traded in her vehicle for more than fair market value does not bar her claim, the price she obtained for the Jetta at resale may be probative as to the value of the vehicle with defects at the time and place of acceptance. A reasonable jury could conclude that her testimony that the vehicle was worth only $12,526 at the time of acceptance is inherently incredible, given that the vehicle was sold two years and 30,000 miles later for $15,100.

¶ 44. Numerous courts and commentators have recognized that the price obtained for defective goods on resale is probative as to the value of the goods actually received. See, e.g., HCI Chems. (USA), Inc. v. Henkel KGaA, 966 F.2d 1018, 1024 (5th Cir. 1992); Cohen, 264 F.Supp.2d at 622; Bergenstock v. Lemay's G.M.C., Inc., 372 A.2d 69, 75 (R.I. 1977); ITT-Indus. Credit Co. v. Milo Concrete Co., 229 S.E.2d 814, 822 (N.C. Ct. App. 1976); James J. White & Robert S. Summers, 1 Uniform Commercial Code § 10-2, at 558 (4th ed. 1995). Thus:

Where the buyer sells a defective article, using reasonable care in doing so to secure the best price, the price so received may be used in determining the value of the article in its defective condition for the purpose of determining the amount of the buyer's damages. Evidence of such resale price is admissible to prove the value of the defective article, and such evidence could be sufficient proof of such value in ascertaining the buyer's damages as measured by the difference between such value and the value the article would have had if it had been as warranted.

67A Am. Jur. 2d. Sales § 1145, at 555 (2003).

VI. CONCLUSION

¶ 45. We hold that pursuant to Wis. Stat. § 402.714(2), the appropriate method for measuring damages in this case is the difference between the warranted value of the vehicle in question and its actual value at the time and place of acceptance. When the plaintiff has established a prima facie case of damages under this standard, the "special circumstances" clause of § 402.714(2) should not be construed so as to completely bar her breach of warranty claim simply because she used the defective product for a period of time and later resold it for more than its fair market value. We have found no authority that stands for the proposition that the proper measure of damages under the Uniform Commercial Code in such circumstances is the difference between the market value and actual price obtained for the defective product at the time and place of resale. However, the price of the defective product upon resale may be relevant insomuch as it constitutes circumstantial evidence of the actual value of the product in its defective condition at the time and place of acceptance.

¶ 46. Because the circuit court applied an incorrect standard for measuring damages, we affirm the decision of the court of appeals reversing the circuit court's order of summary judgment.

By the Court. — The decision of the court of appeals is affirmed.

JON E WILCOX, J.

¶ 47. (concurring). I write separately because while I agree that the "special circumstances" clause of Wis. Stat. § 402.714(2) may not be used to bar Mayberry's claim by calculating damages based on the difference between the market value and actual price of her vehicle at resale, the "special circumstances" clause of § 402.714(2) is still relevant to this case.

¶ 48. Despite Volkswagen's attempt to sustain the circuit court's order for summary judgment, what the parties are really arguing over is the amount of Mayberry's damages. Volkswagen is concerned that the standard method for calculating damages under § 402.714(2) will allow Mayberry to reap a windfall because her actual damages are less than the difference between the warranted value of the Jetta and actual value of the Jetta at the time and place of acceptance. Volkswagen argues that the standard measure for calculating damages cannot be an inflexible rule because Mayberry has mitigated her damages and thus has actual damages of a different amount. Volkswagen's concerns do not fall on deaf ears.

¶ 49. While I wholeheartedly agree with the majority that the "special circumstances" clause of § 402.714(2) should not be construed to completely bar a plaintiff from maintaining a claim, I would further hold, in accordance with the numerous authorities that have addressed the issue, that the "special circumstances" clause of § 402.714(2) may be utilized to adjust a plaintiffs damages — as calculated under the difference in value at acceptance standard — to reflect any damages mitigated by the plaintiff. In other words, I would hold that while the difference between the warranted value and actual value at the time and place of acceptance is the "starting point" for calculating damages, this figure may be adjusted upwards or downwards in appropriate circumstances to reflect the actual amount of plaintiffs damages under the "special circumstances" clause of § 402.714(2).

¶ 50. Wisconsin Stat. § 402.714(2) provides that a court may deviate from the standard method of calculating damages for breach of warranty if "special circumstances show proximate damages of a different amount." Both courts and commentators have recognized that this clause of the Uniform Commercial Code allows damages calculated under the standard time and place of acceptance measure to be adjusted upward or downward if the plaintiffs actual damages are different than the default difference in value calculation. See, e.g., Neilson Bus. Equip. Center, Inc. v. Monteleone, 524 A.2d 1172, 1176 (Del. 1987); Vorthman v. Myers Enters., 296 N.W.2d 772, 777 (Iowa 1980); Ronald A. Anderson, 4A Anderson on the Uniform Commercial Code § 2-714:199 to § 2-714:224 (3d. ed. rev. vol. 4A 1997).

¶ 51. As the court in Vorthman explained, "the present standard [under the U.C.C.] is to allow either more or less than the difference between the value of the property as it should have been and as it actually was. This conforms to the basic principle that damages should compensate for the loss actually suffered." Vorthman, 296 N.W.2d at 777 (second emphasis added). See also Roy Anderson, 1 Damages Under UCC § 10:10, at 10-46 (2003) ("The 'special circumstances' exception may justify an award of lesser as well as greater damages than would be allowed by the difference in value formula."). In Vorthman, the court emphasized that the "special circumstances" clause applies where actual damages are of a different — as opposed to a greater — amount than the standard measure. Vorthman, 296 N.W.2d at 777.

¶ 52. One recognized category of cases in which the plaintiffs damages may be adjusted downward from the standard difference in value formulation is "where the buyer has mitigated damages to less than those provided by the value differential formula." Roy Anderson, 1 Damages Under UCC § 10:10, at 10-47 (2003) (emphasis added). Thus:

Circumstances may exist in which the buyer is fully indemnified although the buyer does not obtain the full recovery authorized by UCC § 2-714. In such case, the buyer will not be allowed to recover the damages authorized by the Code but only so much as is required to indemnify the buyer for his or her actual loss.

Ronald A. Anderson, 4A Anderson on the Uniform Commercial Code § 2-714:219, at 487 (3d ed. rev. vol. 4A 1997).

¶ 53. This application of "special circumstances" is consistent with the purpose underlying the remedies in the Uniform Commercial Code, which is to place the aggrieved party "in as good a position as if the other party had fully performed." Wis. Stat. § 401.106(1). As noted by the majority, majority op., ¶¶ 22-24, the remedies under the Uniform Commercial Code for breach of warranty are designed to compensate an injured party for her "direct economic loss." Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309 (Iowa 1995) (quoting James J. White & Robert S. Summers, Uniform Commercial Code § 11-5, at 536 (3d ed. 1988)). In other words, under the Uniform Commercial Code" 'an injured party should be fully compensated for losses suffered through the fault of another, but... he should not be allowed a windfall.'" James J. White & Robert S. Summers, 1 Uniform Commercial Code § 10-2, at 555-56 (4th ed. 1995) (quoting Cmty. Television Servs., Inc. v. Dresser Indus., Inc., 435 F. Supp. 214, 217 (D.S.D. 1977)) (emphasis added). The plaintiff is entitled to be compensated for her actual damages, no more, no less. As such, § 1-106 of the Uniform Commercial Code "requires mitigation of damages." Cates v. Morgan Portable Bldg. Corp., 780 F.2d 683, 688 (7th Cir. 1985).

¶ 54. Allowing a deduction for damages that have been mitigated is also consistent with Wis. Stat. § 402.714(1), which states that damages may be "determined in any manner which is reasonable." In addition, the Official Comments to the Uniform Commercial Code specifically provide: "Subsection (2) .. . is not intended as an exclusive measure" of damages. Official Comment 3, Uniform Commercial Code § 2-714(2) (1962). As one commentator has recognized, "[t]he effect of the [special circumstances] exception is to . . . allow the court the flexibility to fashion a damages award 'in any manner which is reasonable' as provided by subsection (1)." Roy Anderson, 1 Damages Under UCC § 10:10, at 10-45 (2003). It is perfectly reasonable and in accordance with prevailing law to adjust a plaintiffs damages so that she does not recover damages that she avoided pursuant to her duty to mitigate. Indeed, a contrary holding would be patently unreasonable in light of the plaintiffs obligation to mitigate damages.

¶ 55. As the court of appeals has recently explained:

The party alleging breach of the contract has a duty to mitigate damages, that is, "to use reasonable means under the circumstances to avoid or minimize the damages." See Kuhlman, Inc. v. G. Heileman Brew. Co., 83 Wis. 2d 749, 752, 266 N.W2d 382 (1978); Wis JI — Civil 1731. An injured party cannot recover any item of damage that could have been, or was, avoided. See Kuhlman, 83 Wis. 2d at 752 ....

Kramer v. Bd. of Educ. of the Sch. Dist. of the Menomonie Area, 2001 WI App 244, ¶ 13, 248 Wis. 2d 333, 635 N.W.2d 857. This court has held that under general principles of contract law, "[a]n injured party is entitled to the benefit of his agreement, which is the net gain he would have realized from the contract but for the failure of the other party to perform." Thorp Sales Corp. v. Gyuro Grading Co., 111 Wis. 2d 431, 438-39, 331 N.W.2d 342 (1983). However, we have specifically stated: "A party is not entitled to be placed in a better position because of a breach than he would have if the contract had been performed." Hanz Trucking, Inc. v. Harris Bros. Co., 29 Wis. 2d 254, 268, 138 N.W.2d 238 (1965) (emphasis added). See also Kramer, 248 Wis. 2d 333, ¶ 13.

¶ 56. One instance in which courts have recognized that a party has mitigated damages for breach of warranty under the Uniform Commercial Code is where the buyer resells the defective goods for a profit: "When the buyer sues the seller for warranty damages, the general rule specified by the Code for the measurement of the damages must be modified by deducting the profits made on resale." Ronald A. Anderson, 4A Anderson on the Uniform Commercial Code § 2-714:223, at 488 (3d ed. rev. vol. 4A 1997). In Vorthman, 296 N.W.2d at 778, the court held that the damage instruction in the case before it constituted reversible error because it did not allow for the damáge award to be adjusted to reflect the profit the plaintiff received upon resale of the defective goods at issue. See also Lackawanna Leather Co. v. Martin & Stewart, Ltd., 730 F.2d 1197, 1203 (8th Cir. 1984) (ruling that a jury properly awarded damages in breach of warranty case under Uniform Commercial Code § 2-714 for defective cattle hides by reducing damages to reflect plaintiffs profit in resale of the goods); Ducheneaux v. Miller, 488 N.W2d 902, 916 (S.D. 1992) (circuit court erred in failing to reduce plaintiffs damages by amount of profit plaintiff received upon resale of defective calves); Schmaltz v. Nissen, 431 N.W.2d 657, 664 (S.D. 1988) (holding it was proper under South Dakota's Uniform Commercial Code to reduce plaintiffs damages to reflect profit plaintiff made upon resale of inferior quality seed); Holm v. Hansen, 248 N.W.2d 503, 510-11 (Iowa 1976) (ruling that where damages were to be calculated under "special circumstances" clause of Uniform Commercial Code, circuit court was required on remand to consider profits plaintiff received upon resale of defective livestock).

¶ 57. Here, in an attempt to mitigate her damages, Mayberry resold the vehicle to another dealer for $15,100. However, Mayberry conceded that the fair market value of the vehicle at the time of trade-in was $14,200. Thus, assuming Mayberry is successful in convincing a jury that Volkswagen breached its warranties and that she suffered damages, Mayberry's damages should be reduced to reflect the net profit she obtained as a result of the resale of the vehicle. If this amount were not deducted from Mayberry's damages, the duty to mitigate would be meaningless. While Mayberry is entitled to the difference between the warranted value of the vehicle and its actual value at the time and place of acceptance, she mitigated these damages by selling the vehicle for a profit. If she were entitled to keep both the profit from the resale and the total benefit of the bargain damages, she would be placed in a better position than had the Jetta not been defective.

¶ 58. In addition, a consumer's damages may be reduced in a breach of warranty case to reflect any value added to the defective product as a result of successful repairs under the warranty. As one commentator has observed:

By definition, repairs made by the seller are not relevant to the claim of the buyer for damages under UCC § 2-714.
The buyer may not recover damages for defects that have been corrected by the seller pursuant to its warranty to repair. This result is achieved by awarding the plaintiff the difference in the fair market value of the goods and their condition at the time and place of acceptance, increased by the value of repairs and replacement made in compliance with the warranty, and the fair market value of the goods had they been as warranted.

Ronald A. Anderson, 4A Anderson on the Uniform Commercial Code § 2-714:131, at 452-53 (3d ed. rev. vol. 4A 1997). See also James J. White & Robert S. Summers, 1 Uniform Commercial Code § 10-2, at 555 (4th ed. 1995) (accord).

¶ 59. Thus, in Stutts v. Green Ford, Inc., 267 S.E.2d 919, 926 (N.C. Ct. App. 1980), the court held that the "special circumstances" clause of the Uniform Commercial Code allowed for the plaintiffs damages to be reduced in light of the fact that the seller made numerous repairs to the vehicle in question under its warranty, and thereby increased the value of the vehicle. The court reasoned:

At the end of the warranty period, the only nonconformity of which plaintiff complains and of which there is evidence of defective parts or workmanship is the oil leakage. Under the special facts of this case, we hold, then that an appropriate measure of damages would be the difference in the fair market value of the truck in its condition at the time and place of acceptance, increased by the value of repairs and replacements made in compliance with the warranty, and its fair market value had it been as warranted. This, in effect, would permit plaintiff to recover damages compensating him for the loss in value due to the persistent oil problem, while preventing him from receiving windfall damages for defects which were subsequently successfully repaired.

Id. (citation omitted).

¶ 60. Mayberry attempted to mitigate her damages by having the Jetta serviced under the warranty Volkswagen provided. Volkswagen made several repairs to the vehicle at no charge to Mayberry. While the record is silent as to whether Volkswagen ever successfully remedied the engine problem, it does seem that Volkswagen may have successfully rectified the other problems. Thus, Mayberry's damages should be reduced by any value that was added to the defective vehicle as a result of any successful repairs made by Volkswagen pursuant to the warranty. Mayberry should not be able to recover for repairs that were successfully made free of charge in compliance with the warranty.

¶ 61. As such, I would hold that pursuant to § 402.714(2), the starting point for calculating damages in this case is the difference in value at the time and place of acceptance, but that figure may be adjusted downward to take into account any damages that Mayberry mitigated under the "special circumstances" clause. I agree with the court of appeals that "based on the statutory measure of damages in § 402.714(2), a genuine issue of fact exists on the question of damages. Mayberry has offered evidence of the Jetta's value at the time and place of acceptance. Volkswagen, however, has offered evidence suggesting 'proximate damages of a different amount.'" Mayberry v. Volkswagen of America, 2004 WI App, ¶ 15, 271 Wis. 2d 258, 678 N.W.2d 357.

¶ 62. In sum, I would hold, consistent with the numerous cases and authorities that have considered the issue, that once the plaintiff has established a prima facie case of damages under the standard method of calculation in § 402.714(2), her damages may be reduced under the "special circumstances" clause of § 402.714(2) to reflect any damages she may have mitigated. That is, a plaintiffs damages, as calculated under the difference in value at acceptance standard, should be adjusted under the "special circumstances" clause to reflect the actual damages suffered. A plaintiffs damages should be reduced under the "special circumstances" clause of § 402.714(2) in the amount of any net profit the consumer obtained upon the resale of the vehicle. In addition, if the manufacturer made successful repairs to the vehicle under its warranty, the plaintiffs damages should be reduced to reflect the increased value of the vehicle as a result of such repairs. The plaintiff is entitled to the benefit of her bargain, no more, no less. Assuming Mayberry can establish the other prerequisites for liability, her damages, as calculated under § 402.714(2), should be adjusted to reflect any net profit she obtained as a result of the resale and any value added to the defective vehicle as a result of any successful repairs made by Volkswagen.

¶ 63. I am authorized to state that Justices DAVID T. PROSSER, JR. and PATIENCE D. ROGGENSACK join this opinion.

       Unless otherwise indicated, all subsequent references to the Wisconsin Statutes are to the 2001-02 version.

       The warranty specifically excluded "any incidental or consequential damages, including loss of value of the vehicle, lost profits or earnings, or out-of-pocket expenses for substitute transportation or lodging." The parties dispute the validity of this clause. However, as this issue is not properly before us, we do not address whether Mayberry may recover incidental and consequential damages.

       The service records indicate that Mayberry was charged for routine maintenance, such as oil and filter changes, which were not covered under the warranty.

       Unless otherwise indicated, all subsequent references to the United States Code are to the 2000 version.

       Mr. Pennachio's curriculum vitae indicates that he previously held the position of a salesman at The Oak Agency and that of finance manager at Carr's Honda. Mr. Pennachio is currently the owner of Prime Lending, a vehicle loan brokerage business.

       The parties have not appealed from this portion of the circuit court's summary judgment decision.

       While the circuit court stated that "[t]he affidavits and other proof submitted by defendant establish a prima facie case for summary judgment because plaintiff suffered no damages and defendant did not breach it [sic] warranties[,]" the circuit court never actually analyzed whether Volkswagen breached either its written warranty or its implied warranty of merchantability.

       The parties agree that the court of appeals incorrectly stated that 15 U.S.C. § 2304(a) applies to this case. Mayberry v. Volkswagen of America, Inc., 2004 WI App 64, ¶ 8, 271 Wis. 2d 258, 678 N.W2d 357. The federal minimum standards for warranties provided in § 2304(a) apply only to full warranties. See 15 U.S.C. §§ 2303(a) & 2304(a). The parties agree that the written warranty at issue in this case is a limited warranty, and is therefore not subject to the federal minimum standards provided in § 2304(a).

       Except where otherwise provided, the Magnuson-Moss Warranty Act requires application of state law governing written and implied warranties. Walsh v. Ford Motor Co., 807 F.2d 1000, 1012 (D.C. Cir. 1986). From the consumer's perspective, the chief advantage of proceeding under the Magnuson-Moss Act for breach of limited warranty or breach of implied warranty is the availability of attorney fees to a prevailing consumer under 15 U.S.C. § 2310(d)(2).

        See also Saval v. BL Ltd., 710 F.2d 1027, 1033 (4th Cir. 1983); Novosel v. Northway Motor Car Corp., 460 F.Supp. 541, 545 (N.D.N.Y. 1978); Murphy v. Mallard Coach Co., 582 N.Y.S.2d 528, 532 (N.Y. App. Div. 1992).

       Wisconsin Stat. § 402.714 is identical to § 2-714 of the Uniform Commercial Code. Uniform Law Note, Wis. Stat. Ann. § 402.714 (West 2003). See U.C.C. § 2-714(2X1962).

       The official comments to the Uniform Commercial Code are reproduced in the Wisconsin Statutes Annotated. Uniform Commercial Code Comments, Wis. Stat. Ann. § 402.714 (West 2003). The "official comments are indispensable to an understanding of the objectives and purposes of the Uniform Commercial Code and the substantive changes effected in the law." Acknowledgment: Uniform Commercial Code Comments, Wis. Stat. Ann. xi (West 2003).

       Because the question presented is an issue of first impression in Wisconsin and the Uniform Commercial Code seeks uniformity in the application of its provisions, it is appropriate to turn to case law from other jurisdictions addressing the issue.

       At oral argument, plaintiffs counsel indicated that he handled the appeal in Valenti v. Mitsubishi Motor Sales of America, Inc., 773 N.E.2d 1199 (Ill. App. Ct. 2002).

       For the same reason, we do not find Price v. Chevrolet Motor Division of General Motors Corp., 765 A.2d 800 (Pa. Super. Ct. 2000), to be persuasive. In Price, the plaintiff "provided absolutely no evidence as to the vehicle's present value, or to its actual value when it was delivered to her in the alleged defective condition.. . Rather, the sole evidence [the plaintiff] introduced as to damages was [the plaintiffs] sales agreement." Id. at 811.

       However,
      Since the contract price is often negotiated long before the time of acceptance, fair market value at the time of acceptance provides the more accurate measure of value as warranted under 2-714(2). Use of fair market value at the time of acceptance gives a buyer the benefit of a good bargain (when the market price has risen above the contract price), but prevents the buyer from recovering the cost of a bad bargain (when the market price has fallen below the contract price).
      James J. White & Robert S. Summers, 1 Uniform Commercial Code § 10-2, at 557 n.13 (4th ed. 1995).

        But see James J. White & Robert S. Summers, 1 Uniform Commercial Code § 10-2, at 557 n.15 (4th ed. 1995) ("The contract price used as evidence of value as warranted should be the cash price of the goods, not a "credit price" that includes finance charges. Finance charges merely represent the cost of money and do not increase the value of the goods.") (citing Long v. Quality Mobile Home Brokers, Inc., 248 S.E.2d 311, 312-13 (S.C. 1978)). "[M]ost courts have restricted the evidence to the cash price of goods. Whenever finance charges are to be allowed as compensable damages, they should be considered consequential damages subject to the specific requirements in Section 2-715(2) for the recovery of such damages." Roy Anderson, 1 Damages Under UCC § 10:7, at 10-35 (2003).

        See also Wilberscheid v. Wilberscheid, 77 Wis. 2d 40, 48, 252 N.W2d 76 (1977); Park Falls Lumber Co. v. Stauber, 190 Wis. 310, 315, 207 N.W. 409 (1926); Arneson v. Ameson, 120 Wis. 2d 236, 252, 355 N.W.2d 16 (Ct. App. 1984).

        See also Razor v. Hyundai Motor Am., 813 N.E.2d 247, 256-57 (Ill. App. Ct. 2004) (where plaintiff testified as to purchase price of car and chronic problems, jury could award damages based on its own experience and her testimony that the value of the car she received was less than the value of the vehicle she thought she was buying). Don Meadow Motors, Inc. v. Grauman, 446 N.E.2d 651, 654 (Ind. App. Ct. 1983) (evidence was sufficient to support jury’s award where plaintiff testified that he purchased vehicle for $8214 but, due to defects, he believed it was worth only $4000 at the time of purchase under state rule allowing owner of property to testify as to its value).

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       Relying on City of New York v. Pullman Inc., 662 F.2d 910, 912-13 (2d Cir. 1981), Mayberry asserts that the "special circumstances" clause of Wis. Stat. § 402.714(2) may be utilized only if a plaintiffs damages are greater than the difference between the warranted value of the product and actual value of the product at the time and place of acceptance or if the goods at issue are custom goods with no ready market. However, in Pullman, the court merely concluded that special circumstances existed where custom goods were involved and the plaintiff would not be fully compensated for its loss under the standard measure for calculating damages. Id. at 916-18. Pullman did not conclude that these are the only two situations in which the "special circumstances" clause is applicable.

       Of course, it is left to the jury to decide whether $15,100 accurately reflects the price obtained for the vehicle at trade in, given the entire structure of the trade-in arrangement.


author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Clay F. Teasdale, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Clay F. Teasdale, Respondent.
    Supreme Court

      No. 04-0322-D.

      Decided February 16, 2005.

    2005 WI 12
    (Also reported in 692 N.W.2d 244.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Attorney Clay E Teasdale be publicly reprimanded for having committed two counts of professional misconduct in connection with his representation of J.S. in a personal injury matter. In addition, the referee recommended that Attorney Teasdale be required to pay restitution to the client, as well as the costs of this disciplinary proceeding.

¶ 2. We determine that the seriousness of Attorney Teasdale's professional misconduct warrants a public reprimand. We also determine that Attorney Teasdale should he required to make restitution to his client, and we require Attorney Teasdale to pay the costs of this proceeding.

¶ 3. Attorney Teasdale was admitted to practice in Wisconsin in 1983. He has been temporarily suspended from the practice of law in Wisconsin since January 23, 2004, for failure to respond to or otherwise cooperate with a disciplinary investigation unrelated to the instant matter. Attorney Teasdale has not sought reinstatement. He has one previous public reprimand.

¶ 4. Paragraph deleted.

¶ 5. Paragraph deleted.

¶ 6. On February 2, 2004, the OLR filed a complaint against Attorney Teasdale. The matter was submitted to a referee. Teasdale answered and appeared pro se but did not participate after the issuance of a scheduling order on March 15, 2004. The record reflected that he has not "participate [d] in a meaningful way in this case before the Referee."

¶ 7. The complaint filed by the OLR alleged two counts of misconduct committed in connection with Teasdale's representation of J.S. in a personal injury matter. The complaint alleged that Attorney Teasdale filed a complaint on J.S.'s behalf in June 1997. On June 9, 1998, defense counsel served Teasdale with a deposition notice for J.S.; the deposition was to be conducted on June 16, 1998. On June 9, 1998, defense counsel attempted to contact Attorney Teasdale by telephone, but received a message that Attorney Teasdale's telephone was "temporarily disconnected." Defense counsel heard nothing from Teasdale. Teasdale did not inform his client of the scheduled deposition and neither Teasdale nor his client appeared at the deposition. Defense counsel later learned that Teasdale had relocated his practice from Marinette, Wisconsin to Menominee, Michigan.

¶ 8. Opposing counsel then filed and served Attorney Teasdale with a motion for costs based on the failure to produce J.S. for the deposition. Teasdale failed to inform his client of the motion, but appeared at the hearing. The court issued an order directing Teasdale to pay $426.35 in costs in connection with the matter. Attorney Teasdale did not inform his client of this order.

¶ 9. Subsequently, the personal injury matter settled, and appropriate checks were sent to Attorney Teasdale, along with a draft stipulation and order for dismissal. However, Teasdale rejected the draft and proposed a release that dismissed the action "on the merits with prejudice and without further costs..." Opposing counsel rejected this proposal because Attorney Teasdale had not yet paid the $426 costs previously ordered by the court. Opposing counsel forwarded the judgment for costs to the court. Teasdale filed an objection to the judgment for costs, asserting that the matter had been dismissed without costs, which was not accurate because opposing counsel had not signed the draft release proposed by Teasdale.

¶ 10. On February 26, 1999, the court executed the judgment for costs and advised Teasdale, in writing, that the earlier order "clearly states that the plaintiff shall pay to the defendant the sum of $426.35." Attorney Teasdale did not notify his client of this judgment for costs. Indeed, J.S. did not learn of the judgment until he applied for a hank loan, and ultimately paid the judgment himself in order to clear his credit status. The record does not reflect that Attorney Teasdale ever reimbursed J.S. for these costs.

¶ 11. The OLR alleged and the referee found that by failing to respond to the deposition notice, Attorney Teasdale failed to make a reasonably diligent effort to comply with a legally proper discovery request in violation of SCR 20:3.4(d). The OLR also alleged and the referee found further that by failing to notify his client of the deposition, Attorney Teasdale failed to keep a client reasonably informed about the status of a matter in violation of SCR 20:1.4(a).

¶ 12. The referee recommended that the court publicly reprimand Attorney Teasdale. In making that recommendation, the referee observed that a public reprimand was consistent with established legal precedent. In addition, the referee recommended that Attorney Teasdale be required to pay restitution to his client, as well as the costs of this proceeding.

¶ 13. We adopt the referee's findings of fact and conclusions of law and determine that a public reprimand is the appropriate discipline to impose on Attorney Teasdale for the professional misconduct established in this proceeding. We also adopt the recommendation that Attorney Teasdale be required to pay the costs of the OLR prosecution, as well as restitution to his client, J.S.

¶ 14. IT IS ORDERED that Clay F. Teasdale is publicly reprimanded as discipline for professional misconduct.

¶ 15. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Clay F. Teasdale make restitution to his former client in the amount of $426.35, plus post-judgment interest, provided that if the restitution is not made within the time specified and absent a showing to this court of his inability to make the restitution within that time, the license of Clay F. Teasdale to practice law in Wisconsin shall be suspended until further order of the court.

¶ 16. IT IS FURTHER ORDERED that within 60 days of the date of this order, Clay F. Teasdale pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Clay F. Teasdale to practice law in Wisconsin shall be suspended until further order of the court.

       1n 1995, Attorney Teasdale consented to the (former) Board of Attorneys Professional Responsibility (BAPR)'s imposition of a public reprimand for failing to file a timely notice of appeal, failing to comply with a client's reasonable requests for information regarding the appeal, failing to inform his client of a magistrate's recommendation for a denial of disability benefits and of the court's dismissal, and for failing to cooperate with BAPR's investigation.

       SCR 20:3.4(d) provides that "[a] lawyer shall not in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party."

       SCR 20:1.4(a) provides that a "lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."