author: CANE, C.J.

text:
    Walter J. Turner and Kathleen M. Turner, Plaintiffs-Appellants, v. Duane Taylor, Kathleen Taylor, Dean R. Taylor, Robert Lorkowski, and Barbara Lorkowski, Defendants-Respondents.
    Court of Appeals

      No. 03-0705.

      Submitted on briefs September 2, 2003.

      Decided November 25, 2003.

    2003 WI App 256
    (Also reported in 673 N.W.2d 716.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Thomas J. Basting, Jr. and Jack Y. Perry of Briggs and Morgan PA. of Minneapolis, MN.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Gordon K. Morris of Bruce, WI.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.
   CANE, C.J.

¶ 1. Walter and Kathleen Turner appeal a summary judgment granted in favor of Duane, Kathleen and Dean Taylor, and Robert and Barbara Lorkowski. The circuit court concluded an easement benefiting the Taylors' and Lorkowskis' properties, and burdening the Turners' land, was not extinguished by the bona fide purchaser defense under Wis. Stat. § 706.09(l)(k) because the defense does not apply to easements. Thus, the Taylors and Lorkowskis could enforce the easement pursuant to Wis. Stat. § 893.33(6). Because we conclude the bona fide purchaser defense does apply to easements, we reverse the summary judgment and remand for a determination as to whether the Turners otherwise had notice of the easement at the time they purchased the property.

Background

¶ 2. This dispute stems from a complicated history of numerous land conveyances. What was once a single parcel of real estate in 1927 has since been divided into a number of smaller parcels. Those relevant to this appeal include a parcel owned by Walter and Kathleen Turner and purchased in 1994; two parcels owned by Duane and Kathleen Taylor, one bought in 1970 and the other in 1990; and one parcel owned by Robert and Barbara Lorkowski, acquired in 1988. Viewing the properties from west to east, the Turners own the first parcel (the Turner Parcel), the Taylors own the following two (the West Taylor Parcel and the East Taylor Parcel), and the Lorkowskis own the last one (the Lorkowski Parcel).

¶ 3. This appeal centers on an easement that was last recorded in 1959 in a deed for the East Taylor Parcel. The easement burdened the Turner Parcel and the West Taylor Parcel by providing the East Taylor Parcel and the Lorkowski Parcel with ingress and egress across the West Taylor and Turner Parcels. The Turners purchased the Turner Parcel in 1994, but there was no mention in the deed of any easements or other interest burdening this land.

¶ 4. On June 21, 2000, the Turners filed suit demanding a declaration of interest eliminating the easement or an order restraining the Taylors and Lorkowskis from using it. See Wis. Stat. § 840.03. The Turners maintained their property should be free of the easement by virtue of Wis. Stat. § 706.09(l)(k), which provides that a purchaser for valuable consideration and without notice takes the land free and clear of any interest not recorded in the prior thirty years. The Taylors and the Lorkowskis counterclaimed to enforce the easement pursuant to Wis. Stat. § 893.33(6) and (8), the statute of limitations to commence an action to enforce recorded easements.

¶ 5. The circuit court granted summary judgment in favor of the Taylors and the Lorkowskis. Even though more than thirty years had passed since the easement's last recording, the court concluded the easement was not extinguished by Wis. Stat. § 706.09(l)(k) for two reasons. First, the State of Wisconsin Abstracting Standards require an abstractor to include easements recorded sixty years prior to the date the abstract was last continued. The court stated there was "no reason for the State Bar of Wisconsin to adopt that abstracting standard if the 30 year statute [§ 706.09(l)(k)] applies." Second, § 706.09(l)(k) was little more than a curative statute amounting to a "stale records law," while Wis. Stat. § 893.33(8) and Wis. Stat. § 893.15(5) (1977), allowed for the enforcement of easements for up to sixty years. Because the easement was recorded within the sixty-year window, the court determined the easement was enforceable and, therefore, it need not determine whether the Turners took the property with affirmative or express notice of the easement.

¶ 6. The matter was then set over for a determination of the precise location of the easement. All parties stipulated to its location, and the court determined its width to be thirty-three feet. Final judgment was entered and the Turners appeal.

Discussion

¶ 7. When reviewing a summary judgment, we perform the same function as the trial court, making our review de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment must be entered "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." Wis. Stat. § 802.08(2).

I. Wisconsin Stat. § 706.09(l)(k) Includes Easements

¶ 8. Wisconsin Stat. § 706.09 operates as a "title curative" statute that corrects defects in titles to real estate. Schapiro v. Security S&L Ass'n, 149 Wis. 2d 176, 185-86, 441 N.W.2d 241 (Ct. App. 1989). It extinguishes interests or claims that are adverse to or inconsistent with merchantable title when the following circumstances are present. See Wis. Stat. § 706.09; see also Badger State Agri-Credit & Realty, Inc. v. Lubahn, 122 Wis. 2d 718, 728-29, 365 N.W.2d 616 (Ct. App. 1985). First, the estate or interest must be purchased for valuable consideration, i.e., the purchaser must be bona fide. Wis. Stat. § 706.09(1). Second, the adverse claim or interest must fall into one of the eleven listed situations. Wis. Stat. §§ 706.09(l)(a)-(k). Third, the adverse claim or interest must not be exempt from the statute. Wis. Stat. § 706.09(3). Fourth, the purchaser must not have had affirmative or express notice of the adverse claim or interest at the time the purchaser's interest developed in law or equity. Wis. Stat. §§ 706.09(1), (2).

¶ 9. The limited issue on appeal concerns the second element; specifically whether "any interest not of record within 30 years" includes easements. See Wis. Stat. § 706.09(l)(k) (emphasis added). Statutory interpretation is a question of law we review de novo. German v. DOT, 2000 WI 62, ¶ 7, 235 Wis. 2d 576, 612 N.W.2d 50. The goal of statutory interpretation is to discern the legislature's intent. State v. Byers, 2003 WI 86, ¶ 13, 263 Wis. 2d 113, 665 N.W.2d 729. Statutory language is given its common, ordinary and accepted meaning, although technical words or phrases with a peculiar meaning in the law must be construed according to such meaning. Bruno v. Milwaukee County, 2003 WI 28, ¶ 8, 260 Wis. 2d 633, 660 N.W.2d 656. If the statute's language is facially clear, we need not look any further than the statutory text to determine the statute's meaning. State v. Peters, 2003 WI 88, ¶ 14, 263 Wis. 2d 475, 665 N.W.2d 171.

¶ 10. The language of the statute does not limit the types of interests that fall within its purview. Thus, the resolution of this issue hinges on what an "interest" is and if an easement is an interest. An "interest" is a technical word that has a peculiar meaning in the law; hence, to understand its meaning we look outside the statute. See Bruno, 260 Wis. 2d 633, ¶¶ 7-8. An interest is defined as "[a] legal share in something; all or part of a legal or equitable claim to or right in property." Black's Law Dictionary 816 (7th ed. 1999). An easement is, among other attributes, an "interest in another's land, with a right to enjoy it fully and without obstruction." Krepel v. Darnell, 165 Wis. 2d 235, 244, 477 N.W.2d 333 (Ct. App. 1991); see also Millen v. Thomas, 201 Wis. 2d 675, 691, 550 N.W.2d 134 (Ct. App. 1996). While the definition of easement includes the word interest, of paramount importance is that the meaning of interest is synonymously used. That is, an interest is a right in property and an easement is a right in another's property. Because we see no logical equivocation in the use of the term, Wis. Stat. § 706.09(1)(k) applies to easements as a matter of course.

¶ 11. While it is unnecessary to look beyond the plain language, we observe that this conclusion is bolstered by the public policy embodied in Wis. Stat. § 706.09. The legislature included a statutory declaration within this section that asserts, "[n]othing in this section shall be construed to raise or support any inference adverse or hostile to marketability of titles." Wis. Stat. § 706.09(5). A marketable title is "one that can be held in peace and quiet; not subject to litigation to determine its validity; not open to judicial doubt." Baldwin v. Anderson, 40 Wis. 2d 33, 43, 161 N.W.2d 553 (1968) (citation omitted). It has been described as meaning "good title." Genske v. Jensen, 188 Wis. 17, 19, 205 N.W. 548 (1925). However, ”[t]itle that is encumbered by an easement is not a good title." Bankers Trust Co. v. Bregant, 2003 WI App 86, ¶ 18, 261 Wis. 2d 855, 661 N.W.2d 498. Consequently, if we construed § 706.09(1)(k) not to include easements, we would, in effect, encourage an interpretation of the statute that is adverse to the marketability of titles. If such were the case, we would be acting contrary not only to the legislature's clear intent, but also to public policy.

¶ 12. Our conclusion is also in accord with the overall scope and construction of Wis. Stat. ch. 706. Wisconsin Stat. § 706.001 states, "this chapter shall govern every transaction by which any interest in land is created, aliened, mortgaged, assigned or may be otherwise affected in law or in equity." Here again, the legislature chose to use unrestrained terms regarding what interests the chapter controls. Because an easement is an interest, and because Wis. Stat. §§ 706.001 and 706.09(l)(k) speak in terms of "any interest," we see no escape from the conclusion that easements fall within the scope of § 706.09(l)(k).

II. Comparison with Other Statutes

¶ 13. The Taylors first challenge this conclusion by claiming it would conflict with the statute of limitations for recorded easements and the conservation easement exemption from the recorded easement statute of limitations, and expands the mineral rights interest recording provisions. Although not advanced by the Taylors, it could also be contended that the legislature's action in amending Wis. Stat. § 893.33(6) subsequent to enacting Wis. Stat. § 706.09 requires a different conclusion. We consider this contention after the Taylors' claim that our conclusion conflicts with the statute of limitations for recorded easements. We are not persuaded by any of these arguments.

A. The Statute of Limitations for Recorded Easements, Wis. Stat. § 893.33(6), Compared with Wis. Stat. § 706.09

¶ 14. The Taylors first argue that because Wis. Stat. § 893.33(6) provides a forty-year period for commencing an action to enforce a recorded easement, it is contrary to the legislature's intent to conclude Wis. Stat. § 706.09(l)(k) applies to easements, given that such a conclusion effectively shortens the forty-year period of limitations by ten years. We do not agree. Because § 706.09 and § 893.33 pertain to the same general subject matter, we must reconcile their language in a manner that gives each statute its full force and effect. German, 235 Wis. 2d 576, ¶ 11. Application of this rule reveals the statutes operate for two very-different purposes.

¶ 15. Wisconsin Stat. § 893.33(6) merely sets forth the time period for commencing an action to enforce a recorded easement. It is a statute of limitations that asserts the action "shall not be barred by this section" unless the following requirements are met. There must (1) be an interest in the form of an easement, (2) set forth in a recorded instrument, (3) that was recorded, or referenced in another recorded instrument, within the prior forty years. Wis. Stat. § 893.33(6). If the plaintiff meets these requirements, § 893.33(6) does nothing more than to say the plaintiffs action is not time-barred, or, stated differently, the plaintiff is entitled to sue on the claim.

¶ 16. In comparison, and as indicated, Wis. Stat. § 706.09 operates as a "title curative" statute that frees property of adverse claims and interests. Schapiro, 149 Wis. 2d at 185-86. Even though it contains time provisions, it is not, as the Taylors urge, a statute of limitations. Instead, it is similar to an affirmative defense in that it effectively relates to defending against a claim, thereby defeating an otherwise legitimate interest. That is, for a bona fide purchaser without notice, the statute destroys interests that are adverse to or inconsistent with merchantable title, provided the other requisites of the statute are satisfied. See § 706.09(1) and (5); see also Badger State Agri-Credit, 122 Wis. 2d at 728-29.

¶ 17. With this being the case, it is apparent the statutes have very different purposes. On the one hand, Wis. Stat. § 893.33(6) establishes the time period to bring an action to enforce an easement. On the other hand, Wis. Stat. § 706.09 relates to defending against claims asserting rights to an interest in property. Given the limited import of § 893.33(6) and the thrust of § 706.09, our conclusion that § 706.09(1)(k) applies to easements does not conflict with § 893.33(6).

¶ 18. For similar reasons, our conclusion does not render Wis. Stat. § 893.33(6) meaningless. Wisconsin Stat. § 706.09 will not always extinguish easement interests because it operates under very limited and specific circumstances. Yet even if those circumstances are present and a bona fide purchaser raises § 706.09 to extinguish an easement and is ultimately successful, nothing in § 893.33(6) has been surrendered. Again, all § 893.33(6) does is to provide threshold requirements an action must clear. If the claim meets these requirements, it is dubbed timely. However, a timely filed claim under this section cannot, by itself, entitle the claimant to a judgment, for it is still subject to defenses. In this case, the defense is § 706.09.

¶ 19. This is no different from other instances where the legislature establishes a time limit to commence an action but still permits the action to be subject to certain defenses. For example, the legislature has established a three-year time limit to commence a negligence claim for injury to the person. Wis. Stat. § 893.54. However, the action is still subject to the defense of, for example, comparative negligence. See Wis. Stat. § 895.045(1). Hypothetically, if a plaintiff timely files an action for negligence, and the defendant raises comparative negligence as an affirmative defense, it would be of no avail for the plaintiff to assert that raising the comparative negligence statute somehow creates a conflict with the negligence statute of limitations. The same principle applies here. The negligence statute of limitations, like the recorded easement statute of limitations, does nothing more than provide the time during which an action must be commenced. Once commenced, though, the action is not immune from defenses, and if defenses are raised and eventually carry the day, there simply is no conflict generated with the particular statute of limitations. Accordingly, Wis. Stat. § 893.33(6) remains unimpaired.

B. Amendment to Wis. Stat. § 893.33(6) Subsequent to the Enactment of Wis. Stat. § 706.09

¶ 20. While not advanced by the Taylors, an argument could be made that the legislature's action in shortening the time period to enforce a recorded easement from sixty to forty years subsequent to enacting Wis. Stat. § 706.09 implies the legislature never intended § 706.09(l)(k) to include easements. Section 706.09 became effective for qualified purchasers whose interest arose on or after July 1, 1968. Wis. Stat. § 706.09(6). The statute of limitations at that time for an action to enforce a recorded easement was sixty years. Wis. Stat. § 893.15(5) (1967). Around the time § 706.09 was enacted, a commentator discussed and analyzed the effect of § 706.09, and § 706.09(l)(k) in particular, in light of the conflicts it potentially posed in relation to the then sixty-year statute of limitations for easements. The commentator noted that § 706.09(l)(k)

is generally a restatement of section 893.15 [now 893.33] with the following minor changes. (1) The requirement of no affirmative notice is expressly added to the 30 year statute.... (2) The period for enforcing easements and restrictive covenants not of record is reduced from 60 to 30 years.
The Wisconsin legislature, however, has unwisely retained section 893.15 in its entirety. The repeal or amendment of section 893.15 should be sought since the notice provisions are different. Retention of section 893.15 in its present form can only lead to uncertainty and litigation concerning the inconsistencies ....

Note, Real Estate — Title Legislation — Merchantability of Title, 1968 Wis. L. Rev. 937, 941. The commentator concluded the discussion by recommending legislative action in regards to the easement statute of limitations to clear up any confusion that could arise:

[T]his new legislation goes further than the legislation of any other state in paring down the time period for cutting off adverse claims not entered into the record. ... To be entirely successful, however, section 893.15 should be amended or repealed to eliminate any conflicts with the new statute.

Id. at 946.

¶ 21. The legislature did not follow this recommendation. In fact, in 1979, the legislature shortened the easement statute of limitations, but did not harmonize it with Wis. Stat. § 706.09(l)(k). Instead, the legislature simply reduced the statute of limitations for recorded easements from sixty years to forty years. See Wis. Stat. § 893.33(6) (1979-80). The. legislature is presumed to know the law when it enacts legislation. Spence v. Cooke, 222 Wis. 2d 530, 537, 587 N.W.2d 904 (Ct. App. 1998). Because the legislature simply reduced the statute of limitations for easements, and did not, as the commentator suggested, correlate it with § 706.09(1)(k), arguably the legislature never intended § 706.09(1)(k) to apply to easements.

¶ 22. However, this argument succumbs to the same flaw as the Taylors' earlier contention. Again, a statute of limitations does nothing more than establish the requirements a claim must pass in order to be dubbed timely, yet a timely filed claim cannot guarantee the claimant will prevail on the merits. The claim is still susceptible to defenses. That being so, while the legislature has shortened the time period in which an easement holder can sue to enforce his or her interest, this action does not affect the conclusion that § 706.09(1)(k) includes easements. Instead, it merely affects the time in which an easement holder can bring an action.

C. The Conservation Easement Exemption From Wis. Stat. § 893.33(6)

¶ 23. The Taylors next claim that applying Wis. Stat. § 706.09(l)(k) to easements could subvert the conservation easement's exemption from the recording requirement. Wisconsin Stat. § 893.33(6m) does provide that the forty-year period to enforce an easement "does not apply to any interest in a conservation easement." The Taylors suggest this excludes conservation easements from the re-recording requirements of § 893.33. To hold § 706.09(1)(k) includes easements would require, they argue, conservation easements to be rerecorded every thirty years to prevent their extinguishment. They conclude that imposing this requirement on the conservation easement holder is contrary to the legislature's intent as captured in § 893.33(6m).

¶ 24. Assuming the Taylors' interpretation that Wis. Stat. § 893.33(6m) excludes conservation easements from re-recording is correct, their argument is undercut by the conservation easement statute, Wis. Stat. § 700.40. While the legislature did provide that a conservation easement is "unlimited in duration unless the conservation easement otherwise provides," Wis. Stat. § 700.40(2)(c), it nonetheless limited the endurance of these easements by § 700.40(3)(b). See Wis. Stat. § 700.40(2)(c). Section 700.40(3)(b) allows a conservation easement to be modified or terminated "in accordance with any principle of law or equity." Our conclusion that Wis. Stat. § 706.09(l)(k) includes easements is a principle of law that could terminate a conservation easement. In light of § 700.40(3)(b), this would not be contrary to § 893.33(6m).

D. The Mineral Rights Interest Lapse Provision, Wis. Stat. § 706.057(3)

¶ 25. The Taylors further contend that applying Wis. Stat. § 706.09(l)(k) to easements would somehow extend a mineral rights interest under Wis. Stat. § 706.057(3). Section 706.057(3) provides that "an interest in minerals lapses if the interest in minerals was not used during the previous 20 years." The lapse may be cured by recording the interest in conformity with § 706.057(4). See Wis. Stat. § 706.057(3) and (5). The Taylors suggest our holding extends the lapse period from twenty years to thirty years. We are not persuaded. Their argument is conclusory and does not advance any reasons why this would occur in light of our conclusion that § 706.09(l)(k) applies to easements.

III. Abstracting Standards

¶ 26. The Taylors' final argument is that applying Wis. Stat. § 706.09(1)(k) to easements conflicts with the State Bar of Wisconsin's Abstracting Standards. They observe that the standards require including easements recorded within the prior sixty years in a title abstract. The standard states in relevant part:

Items Always Shown
The following must always be shown:
(6) Easements or covenants restricting the use of real estate recorded within 60 years prior to the date to which the abstract is last continued; if an instrument or notice recorded within the last 60 years expressly refers to an easement or covenant recorded more than 60 years prior to the date the abstract is last continued, such easement or covenant shall be known.

James J. Vance, Titles To Real Estate ch. 6 (1998 rev. ed.) (reprinting State Bajr of Wisconsin Abstracting Standards, ch. 6 (1979)). The circuit court found this obligation to be persuasive. It noted there would be no reason for the standards to adopt a sixty-year period for investigating easements if Wis. Stat. § 706.09, which extinguishes interests after thirty years, applied to easements.

¶ 27. However, the preface to the "Items Always Shown" section reveals the State Bar was conscious of the problems Wis. Stat. § 706.09 potentially presented to those preparing abstracts. The preface states;

Whenever the abstractor is uncertain of the law or whether or not there is a defect of any sort in the title, whether the question arises under Wis. Stat. § 706.09 or otherwise, the abstractor shall abstract the defect, it being the responsibility of the attorney and not the abstractor to decide all questions of law.

Vance, supra. The passage recognizes that the abstractor will not be able to determine whether a prospective purchaser passes all the elements of § 706.09 by simply looking at a recording index. As such, "the State Bar Abstracting Standards do not rely upon section 706.09 to tell the abstractor that he or she need not show certain things in the abstract." Vance, supra, § 8.05. The standards require abstractors to err on the side of caution and show any easements that appear of record as far back as sixty years. See id. This prudential measure serves to avoid potential liability for abstractors. Thus, when considered in its proper context, the standard does not support the conclusion that § 706.09 was never intended to include easements.

IV Conclusion

¶ 28. We acknowledge that our holding may have the effect of extinguishing a legitimate interest. However, Wis. Stat. § 706.09 was built on a theory that allowed for this possibility. One of the architects of § 706.09 explained it was constructed on the following assumption:

[W]hen the most recent notice of a claim or interest is allowed to become 30 years old, a strong practical suspicion or inference arises that such claim or interest has probably been extinguished by some conveyance, transaction, or event not appearing — or not satisfactorily or completely appearing — of record.

Ray J. Aiken, Commentary on Proposed Title Legislation, Wis. Bar Bull. 49, 50 (April 1963). On this assumption, the effect of § 706.09 was to create "a conclusive presumption that evidence tending to amplify, clarify or correct the record . . . would, if actually provided, negative the existence of any defect in the actual title of the current grantor where the existence of such defect does not appear affirmatively and expressly of record" within the provided time frames. Id. at 53. Aiken was aware that this assumption was not perfect and that crafting § 706.09 in light of it could result in the destruction of legitimate interests. However, he observed that the legal safeguards of notice and the substantial time periods built into § 706.09 "reduce the gamble of the assumption to completely microscopic proportions." Id. at 52. This may be one of those microscopic cases.

¶ 29. Applying our holding, it is undisputed the easement was last recorded or referenced in the 1959 deed for the East Taylor Parcel and that the Turners' interest in their property arose in 1994, a difference of thirty-five years. This is outside of Wis. Stat. § 706.09(1)(k)'s thirty-year time period. However, we remand the matter for a fact-finding hearing to determine if the Turners otherwise had affirmative or express notice of the easement. See Wis. Stat. § 706.09(2). If not, the easement is extinguished.

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

       Because this conclusion disposes of the appeal, we do not consider the Turners' alternative argument that the recorded easement does not benefit the West Taylor Parcel and it would be unreasonable to expand the easement's benefits to the West Taylor Parcel. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) ("As one sufficient ground for support of the judgment has been declared, there is no need to discuss the others urged.").

       Wisconsin Stat. § 840.03 provides in part:
      (1) Any person having an interest in real property may bring an action relating to that interest, in which the person may demand the following remedies singly, or in any combination, or in combination with other remedies not listed, unless the use of a remedy is denied in a specified situation:
      (a) Declaration of interest.
      Ob) Extinguishment or foreclosure of interest of another.
      (L) Restraint of another's use of, activities on, or encroachment upon land in which plaintiff has an interest.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Wisconsin Stat. § 706.09(l)(k) states:
      (1) When conveyance is free of prior adverse claim. A purchaser for a valuable consideration, without notice as defined in sub. (2), and the purchaser's successors in interest, shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
      (k) Interests not of record within 30 years. Any interest of which no affirmative and express notice appears of record within 30 years.

       Wisconsin Stat. § 893.33 reads in pertinent part:
      (6) Actions to enforce easements, or covenants restricting the use of real estate, set forth in any recorded instrument shall not be barred by this section for a period of 40 years after the date of recording such instrument, and the timely recording of an instrument expressly referring to the easements or covenants or of notices pursuant to this section shall extend such time for 40-year periods from the recording.
      (8) If a period of limitation prescribed in s. 893.15(5), 1977 stats., has begun to run prior to July 1, 1980, an action shall be commenced within the period prescribed by s. 893.15, 1977 stat., or 40 years after July 1, 1980, whichever terminates first.
      Wisconsin Stat. § 893.15(5) (1977), referenced in § 893.33(6) above, provides:
      Actions to enforce easements, or covenants restricting the use of real estate set forth in any instrument of public record shall not be barred by this section for a period of 60 years after the date of recording such instrument, and the timely recording of instruments expressly referring to such easements or covenants or of notices pursuant to this section shall extend such time for 60-year periods from such recording.
      The period of limitations to bring an action to enforce a recorded easement used to be sixty years. See Wis. Stat. § 893.15(5) (1977). The same period of limitations is now forty years. See Wis. Stat. § 893.33(6). However, because the easement interest at issue in this case was last recorded in 1959, the period of limitations to enforce the easement began to run prior to July 1,1980. Thus, according to § 893.33(8), the Taylors have sixty years to bring an action to enforce the easement. For simplicity, we will only refer to § 893.33(6) as the statute of limitations for recorded easements throughout our discussion.

       We reject the Taylors' argument that the statute is ambiguous. The test for statutory ambiguity is as follows:
      [T]he test for statutory ambiguity focuses first (as it must) on the language of the statute, not the competing interpretations of it offered by lawyers or judges. The statutory language is given its common and ordinary meaning, and technical or specially-defined terms are given the technical or special definitional meaning assigned to them.... If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.
      The presence of different "plain meaning" interpretations by lawyers or judges does not authorize the court to skip this process, assume ambiguity, and begin searching for extrinsic sources of legislative intent. Rather,... the court examines the statutory or ordinance language to determine whether " 'well-informed persons' should have become confused," that is, whether the statutory or ordinance language reasonably gives rise to different meanings. A statute is ambiguous if it is susceptible of two or more "equally sensible interpretations."

        Bruno v. Milwaukee County, 2003 WT 28, ¶¶ 20-21, 260 Wis. 2d 633, 660 N.W.2d 656 (citations omitted). The plain meaning analysis produced a clear statutory meaning. Because of this, the language is not susceptible of two or more equally sensible interpretations. Thus, there is no ambiguity.
      Furthermore, because the plain meaning of the statute compels our conclusion, we also decline to address the Taylors' argument that we should resort to the statutory canon of construction ejusdem generis. See State v. Peters, 2003 WI 88, ¶ 14, 263 Wis. 2d 475, 665 N.W.2d 171 (If a statute's language is clear on its face, we need not look any further than the statutory text to determine the statute's meaning.); see also La Barge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976), and Watkins v. Milwaukee County Civil Serv. Comm'n, 88 Wis. 2d 411, 276 N.W.2d 775 (1979), for an explanation of the canon of construction ejusdem generis.

        Finally, we understand the supreme court has recently resorted to reviewing legislative history when interpreting a statute without first determining the statute is ambiguous. See Hubbard v. Messer, 2003 WI 145, ¶¶ 19-20, 267 Wis. 2d 92, 673 N.W.2d 676. Although we are not employing this method for statutory interpretation, we do note that we have reviewed the legislative history and found nothing helpful in determining whether the legislature intended to include or exclude easements as part of Wis. Stat. § 706.09(1)(k).

       We say "effectively" because we do not imply that it can only be used as a shield to defend against an action. It can also be used as a sword to defeat interests, which is exactly what was done in this case: the Turners filed an action pursuant to Wis. Stat. § 840.03 seeking a declaration of interests that their property was free from the easement, on the grounds that the easement was extinguished pursuant to Wis. Stat. § 706.09(l)(k).

       Wisconsin Stat. § 893.15(5) (1967) states:

        Actions to enforce easements, or covenants restricting the use of real estate set forth in any instrument of public record shall not be barred by this section for a period of 60 years after the date of recording such instrument, and the timely recording of instruments expressly referring to such easements or covenants or of notices pursuant to this section shall extend such time for 60-year periods from such recording.

       Wisconsin Stat. § 893.33(6) (1979-80) states:
      Actions to enforce easements, or covenants restricting the use of real estate, set forth in any recorded instrument shall not be barred by this section for a period of 40 years after the date of recording such instrument, and the timely recording of an instrument expressly referring to the easement or covenants or of notices pursuant to this section shall extend such time for 40-year periods from the recording.

       Because the circuit court concluded Wis. Stat. § 706.09(1) (k) did not apply to easements, it did not address the Taylors' contention that the Turners otherwise had notice of the easement because it was being used openly, notoriously, and continuously. Thus, we do not have any findings of fact in this regard.

       Wisconsin Stat. § 706.09(2) states in part:
      (2) Notice of prior claim. A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser's interest arises in law or equity:
      (a) Affirmative notice. Such purchaser has affirmative notice apart from the record of the existence of such prior outstanding claim, including notice, actual or constructive, arising from use or occupancy of the real estate by any person at the time such purchaser's interest therein arises, whether or not such use or occupancy is exclusive; but no constructive notice shall be deemed to arise from use or occupancy unless due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest; nor unless such use or occupancy is actual, visible, open and notorious.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    Wilber Lime Products, Inc., Plaintiff-Respondent, v. Renee L. Ahrndt, Renee L. Ahrndt, as Attorney-in-Fact for Shirley D. Ahrndt, Renee L. Ahrndt, as Personal Representative of the Estate of Robert J. Ahrndt and Renee L. Ahrndt, as Personal Representative of the Estate of Shirley D. Ahrndt, Defendants, Sonnentag Family Limited Partnership, Defendant-Appellant.
    Court of Appeals

      No. 03-0838-FT.

      Submitted on briefs August 25, 2003.

      Decided November 25, 2003.

    2003 WI App 259
    (Also reported in 673 N.W.2d 339.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John B. Wagman, of The Law Offices of Tuchscherer, Eckert, Ruffi & Wagman, S.C., a limited liability organization, Wausau.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Bruce J. Brovold and Keith J. Pilger of Kostner, Koslo & Brovold, LLC, Arcadia.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. Wilber Lime Products held a right of first refusal to twenty-five acres of a 180-acre farm owned by Robert Ahrndt. Upon Ahrndt's death, his estate sold the parcel to Renee Ahrndt. The trial court held that this sale triggered Wilber Lime's right to purchase the twenty-five acres. We agree. We further conclude that Wilber Lime may purchase the twenty-five acres at its fair market value and we remand to the trial court to determine that figure.

BACKGROUND

¶ 2. Robert Ahrndt owned a 180-acre farm in Caledonia, Wisconsin. Wilber Lime held a right of first refusal to twenty-five of the acres. The right of first refusal was contained in a mineral lease dated July 3, 1992. The lease granted "unto LESSEE the Right of First Refusal to Purchase any of the lands herein described for an amount equal to any bona fide written offer to purchase tendered to OWNER by any THIRD PARTY." The right of first refusal was effective until the expiration of the lease on July 3, 2002.

¶ 3. Ahrndt died on July 9, 1994. His daughter, Renee Ahrndt, purchased the entire farm, including the twenty-five acres, from the estate on September 19, 1994. Wilber Lime received no notice of the transaction.

¶ 4. Through several transactions that are not germane to this opinion, Sonnentag Family Limited Parnership agreed that, when Wilber Lime's right of first refusal terminated, Sonnentag would buy twenty of the twenty-five acres from Renee.

¶ 5. Sometime after Wilber Lime's right of first refusal terminated, Wilber Lime learned that Renee had purchased the 180-acre farm at a time when Wilber Lime's right of first refusal was still in effect. Wilber Lime then filed this action, claiming it was entitled to purchase the twenty-five acres when the land was sold from Robert Ahrndt's estate to Renee. Sonnentag filed a motion for summary judgment, arguing Wilber Lime's right of first refusal was never triggered before it was terminated.

¶ 6. The circuit court concluded Wilber Lime's right of first refusal was triggered by the sale to Renee and that Wilber Lime was entitled to specific performance. The court stated that Wilber Lime was entitled to purchase the twenty-five acres "at a price to be determined at a later date." The court therefore granted summary judgment in favor of Wilber Lime. Sonnentag appeals.

STANDARD OF REVIEW

¶ 7. We review summary judgment decisions independently, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-17, 401 N.W.2d 816 (1987). That methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

DISCUSSION

¶ 8. This is a case of first impression in Wisconsin. Authority in other jurisdictions is split. The circuit court, in a thoughtful opinion, concluded that the position exemplified by Brenner v. Duncan, 27 N.W.2d 320 (Mich. 1947), was appropriate. There, the Michigan Supreme Court determined that the sale of a large parcel of land triggers a right of first refusal on a smaller portion within the large parcel. Id. at 322.

The terms of the lease imposed... a duty [on the landowner], before selling [the land], to fix a specific sum as the amount at which she was willing to sell the premises in question and to afford the [owner of the right of first refusal] an opportunity to buy the same at such figure.

Id. The entire parcel in Brenner was sold for $15,000. However, there was no specific sum allotted to the smaller parcel subject to the right of first refusal. Id. The court held that the landowner could not rely on the lack of the specific sum to defeat the right of first refusal. Id. The court concluded that the landowner "must be deemed to have sold the . . . parcel for a sum bearing such ratio to $15,000 as the value of said parcel bears to the value of the entire ... parcel. Plaintiffs are entitled to purchase the [smaller parcel] for such figure, if they so desire." Id. This calculation established a per-acre purchase price of the land.

¶ 9. The ruling in Brenner recognizes the landowner's right to dispose of land as the owner wishes at a price the owner is willing to accept. The ruling construes the package deal as triggering the right of first refusal on the smaller parcel. At the same time, the ruling protects the holder of the right of first refusal's ability to exercise the holder's option when the land is sold. To determine otherwise would enable the landowner to make an end run around his or her obligation to the holder of the right of first refusal. In The Berry-Iverson Co. v. Johnson, 242 N.W.2d 126, 134 (N.D. 1976), the North Dakota Supreme Court noted:

[W]e conclude that an intention to sell a larger parcel of land, including a tract under lease to a tenant, is evidence of an intention to sell the leased premises, even where no separate apportionment of value is made by owner and purchaser. To conclude otherwise would permit an owner and prospective purchaser to, in effect, destroy a bargained-for purchase preemption before the expiration of the term for which such preemption was obtained.

¶ 10. The majority of jurisdictions disagree with this approach. For example, in Chapman v. Mutual Life Ins. Co., 800 P.2d 1147 (Wyo. 1990), the Wyoming Supreme Court determined that an attempt to sell a large parcel of land did not trigger a right of first refusal on a smaller portion. Id. at 1151. However, the court still recognized the validity of the right of first refusal on the smaller portion. In order to protect that right, the court enjoined the sale of the large parcel. The right of first refusal would not be triggered until the owner received an offer specifically for the smaller portion. In the meantime, the large parcel could not be sold. This decision "recognizes [the parties'] agreement and provides the opportunity for its performance without judicial intrusion into establishment of the price term of any desired sale." Id. at 1152. The right of first refusal "remains in an unripened or suspended state, awaiting the energizing spark provided when the condition precedent of intent and offer is met." Id. at 1152.

¶ 11. The Fourth Circuit Court of Appeals took a middle road in Pantry Pride Enters. v. The Stop & Shop Cos., 806 F.2d 1227, 1230 (4th Cir. 1986). The court commented on some of its concerns about the appropriate remedy:

First, if the lessor sold the leased and nonleased portions together, he would probably receive a greater price than if he sold the properties separately. By forcing the lessor to sell only the leased portion, the court may be depriving the lessor of this premium. Second, the remaining property may be difficult to sell without the attached leased portion. Third, specific performance forces the lessor to separate his contiguous property merely because he leased a portion of it to the lessee. Because of these equitable considerations, most courts do not grant specific performance, but simply protect the lessee's option by enjoining the sale of the leased portion.

That said, the court concluded that the right of first refusal was triggered and that awarding specific performance was consistent with the parties' intent when they agreed to the right of first refusal. Id. However, the court did not think that a simple pro rata valuation was fair. Instead, the court remanded the case for an allocation of the fair market value of the property burdened by the right of first refusal. Id. at 1231. "Permitting the exercise of the first refusal right [based on the purchase price of the whole] provides [the holder of the right] a windfall for which it never bargained in the lease." Id. It would bear "no relation to its worth" and the holder of the right of first refusal would "have acquired [the property] at an absurdly low price and on terms never really agreed to between [the parties]." Id.

¶ 12. We conclude that the Pantry Pride approach is the most persuasive. Therefore, we agree with the circuit court's decision that the sale of the entire 180-acre farm to Renee triggered Wilber Lime's right of first refusal to the twenty-five acres. Granting specific performance protects Wilber Lime's right of first refusal. Wilber Lime expected to be offered the opportunity to purchase the twenty-five acres in the event they were ever sold. The twenty-five acres were sold, albeit as part of a package deal. Wilber Lime should therefore have had the right to purchase the land.

¶ 13. Further, like the court in Pantry Pride, we recognize the possibility that the acres being sold are not all of equal value. We conclude that the most equitable resolution is to determine the fair market value of the twenty-five acres. This protects the landowner from being forced to sell the twenty-five acres at a price lower than its fair market value and therefore lower than the owner would accept if the twenty-five acres were sold alone. It also prevents Wilber Lime from receiving a windfall of being able to purchase the land at a price lower than its value. This approach best fulfills the intentions of the parties when they entered into the agreement granting Wilber Lime the right of first refusal.

¶ 14. We therefore remand the case to the trial court for a determination of the fair market value of the twenty-five acres. Wilber Lime will then have the opportunity to purchase the twenty-five acres at that price if it so chooses.

By the Court. — Order affirmed and cause remanded with directions.

       This is an expedited appeal under Wis. Stat. Rule 809.17. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
      We granted leave to appeal on May 1, 2003.


author: DYKMAN, J.

text:
    Meriter Hospital, Inc., Plaintiff-Appellant-Cross-Respondent,  v. Dane County, Defendant-Respondent-Cross-Appellant.
    Court of Appeals

      No. 02-2837.

      Submitted on briefs August 13, 2003.

      Decided November 26, 2003.

    2003 WI App 248
    (Also reported in 673 N.W.2d 328.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of John Walsh and Guy DuBeau of Axley Brynelson, LLP, Madison.
    On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the brief of Kristi A. Gullen, assistant corporation counsel, of Dane County Corporation Counsel, Madison.
    A nonparty brief was filed by Timothy J. Yanacheck and John M. Moore of Bell, Gierhart & Moore S.C., Madison, for the Badger State Sheriffs Association.
    A nonparty brief was filed by John J. Prentice and Andrew T. Phillips of Prentice & Phillips LLP, Milwaukee, for the Wisconsin Counties Association.
    A nonparty brief was filed by Laura J. Leitch of Wisconsin Hospital Association, Inc., Madison, for Wisconsin Hospital Association, Inc.
    Before Deininger, PJ., Dykman and Nettesheim, JJ.

       Petition to review granted 3-23-04.

   DYKMAN, J.

¶ 1. Both Meriter Hospital, Inc. (Meriter) and Dane County appeal from a judgment against Dane County awarding Meriter $8,623.07. Meriter contends that Wis. Stat. § 302.38 (2001-2001) requires Dane County to pay the medical bills Michael Gibson incurred at Meriter because Gibson was a prisoner when admitted and was "otherwise detained" throughout his hospitalization. We conclude Gibson was held under state criminal laws only for the first three days of his stay at Meriter and affirm.

¶ 2. Dane County cross-appeals and claims the trial court erred by using the Diagnostic Related Group (DRG) rate for compensation rather than the discharge rate. We conclude that the Department of Health and Family Services (DHFS) requires Dane County to pay Meriter according to the DRG method. We affirm.

FACTS

¶ 3. The parties do not dispute the material facts. The Dane County Sheriffs Department brought inmate Michael Gibson to Meriter when he became very ill. Within three days, the sheriff informed the prosecutor that Gibson had been hospitalized. The State moved to dismiss the charges against Gibson and the trial court granted the motion. The Department of Probation and Parole also cancelled an order to detain Gibson. Thereafter, a deputy no longer needed to guard Gibson at Meriter. The Department of Corrections issued an Apprehension Request, stating that Meriter was to contact the sheriff or Gibson's probation agent prior to releasing Gibson from the hospital. When the time came, however, the sheriff did hot detain Gibson. Gibson's treatment at Meriter lasted thirty-four days. His medical bills amounted to $187,569.37, which he is unable to pay.

¶ 4. Both parties agree that Wis. Stat. § 302.38 controls this appeal, that Gibson was an indigent prisoner when admitted, and that Meriter may recoup from Dane County some of the costs of Gibson's medical care.

DISCUSSION

Criminal Status of Gibson

¶ 5. Meriter's issue on appeal is whether Wis. Stat. § 302.38 requires Dane County to pay for the costs Gibson incurred after the trial court dismissed the charges against him. Application of a statute to undisputed facts constitutes a conclusion of law. Kania v. Airborne Freight Corp., 99 Wis. 2d 746, 758, 300 N.W.2d 63 (1981). We review matters of law without deference to the trial court. First Nat'l Leasing Corp. v. Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251 (1977).

¶ 6. Meriter contends that Wis. Stat. § 302.38 does not sever Dane County's liability when the court dismissed charges against Gibson. Meriter makes two arguments. First, it claims that § 302.38 determines Dane County's liability when Meriter admits the patient for care. Therefore, irrespective of any future events, Dane County is liable for Gibson's expenses incurred throughout the thirty-four days he was hospitalized. Meriter relies upon the eligibility procedures used for medical assistance to support this position. Although indigent prisoners do not qualify for medical assistance, Meriter contends that this framework is the most useful analogy for establishing eligibility. Under that system, the hospital determines a patient's eligibility at admittance.

¶ 7. Wisconsin Stat. § 302.38(2) requires the county to "pay the costs in the case of persons held under the state criminal laws or for contempt of court. . .." We conclude that this statute is not ambiguous. Thus, we do not need to refer to the medical assistance framework as Meriter suggests. We apply the ordinary and plain meaning of unambiguous statutory language. State v. Peterson, 2001 WI App 220, ¶ 13, 247 Wis. 2d 871, 634 N.W.2d 893. The circumstances altering Gibson's criminal status do not render the statute ambiguous. Compare State v. McKee, 2002 WI App 148, ¶¶ 9-10, 256 Wis. 2d 547, 648 N.W.2d 34, review denied, 2002 WI 121, 257 Wis. 2d 118, 653 N.W.2d 890 (Wis. Sept. 26, 2002). Section 302.38 does not fix admittance as the time when we determine the county's liability for indigent prisoners. We will not confine the eligibility determination to that time.

¶ 8. We conclude that a patient must either be held under the state criminal laws or for contempt of court" while receiving treatment in order for the county to be liable for medical costs. If a patient already admitted to the hospital becomes "held under the state criminal laws or for contempt of court," then the county will be liable for medical costs if that person is indigent. In Gibson's case, the reverse occurred. He lost his status as a person "held under the state criminal laws." Wis. Stat. § 302.38. We conclude Dane County was no longer liable for medical costs incurred after the trial court dismissed charges against Gibson.

¶ 9. Alternatively, Meriter argues Gibson did not lose his criminal status after the court dismissed his charges because an Apprehension Request "otherwise detained" him according to Wis. Stat. § 301.01(2). This request required the hospital to notify the sheriff prior to releasing Gibson. Meriter also asserts that Gibson was also constructively detained because he was in a coma, making it impossible for him to leave the hospital. Additionally, Meriter notes that Gibson's attorney continued to negotiate concerning his case because he was unaware that the court dismissed the charges.

¶ 10. The pertinent inquiry is whether Gibson was "held under state criminal laws." Wis. Stat. § 302.38. We recently decided that a person did not have criminal status while hospitalized once a trial court stays confinement. State v. Edwards, 2003 WI App 221, 267 Wis. 2d 491, 671 N.W.2d 371. We reached that determination in State v. Edwards, which addressed jail credits for hospitalized offenders. An offender subject to an escape charge for leaving the hospital was in "custody" pursuant to Wis. Stat. § 946.42(1). Id., ¶ 21. We did not consider the fact that the jail administrator instructed the hospital to notify him when it was time for the hospital to release the offender probative of criminal status. Id., ¶ 5. Similarly, Gibson was not in custody after the trial court dismissed the charges against him. The State could not have charged him with escape if he had left the hospital. See § 946.42. Section 302.38(2) does not allow us to substitute an Apprehension Request for criminal charges.

¶ 11. Finally, Meriter proffers several miscellaneous arguments about why Dane County's liability stems beyond Gibson's first three days in the hospital. It argues that Dane County could not have satisfied its statutory obligation to provide Gibson "appropriate" care if Gibson had been released after three days because he was gravely ill. Wis. Stat. § 302.38(1). Meriter also argues that the sheriff exercised his discretion by bringing Gibson to the hospital and that Dane County now cannot shirk from the ramifications of that decision. Moreover, the sheriff instigated Gibson's release by informing the prosecutor that Gibson required medical treatment at Meriter. It argues that concerns about expensive medical treatment motivated the sheriff to suggest Gibson's release, violating the sheriffs duty to secure prisoners. It also argues that the sheriff has no legal authority to seek the release of prisoners.

¶ 12. We decline to consider these peripheral issues. Whether Dane County could have fulfilled its statutory obligation to provide care to Gibson in three days is irrelevant because those are not the facts of this appeal. Wisconsin Stat. § 302.38 does not consider the State's or the sheriffs motives; we will not presume as much when applying this unambiguous statute. Dane County is liable only for the first three days of Gibson's medical treatment.

Prorating the DRG Value

¶ 13. Meriter argues that Wis. Stat. § 302.38 does not require it to prorate the DRG value over the number of days the patient stays in the hospital. It explains that the DRG classification system "lump[s] various patients into categories based on their diagnosis determined by the nature of the treatment they required." It maintains that the DRG value considers the "entire scope of the treatment provided." In other words, this aggregate cost assessment is indivisible by the number of days a patient stays in the hospital. While Meriter's argument may have merit in the context of medical assistance claims, § 302.38(2) limits reimbursement for medical care to indigent prisoners. An indigent prisoner may lose his or her criminal status. At that point, the county's liability ends. We conclude that § 302.38 does not hold the county liable for the entire DRG value. To hold otherwise would render the limit on liability meaningless; the county would be liable for the "entire scope of treatment provided" regardless of criminal status. Meriter has argued that the trial court should not have prorated the DRG value. It has not argued that the trial court incorrectly prorated the DRG value.

Discharge Rate v. DRG Method

¶ 14. Dane County cross-appeals the trial court's order granting partial summary judgment to Meriter on the DRG rate issue. We review orders granting summary judgment de novo, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

¶ 15. Dane County claims the trial court erred by calculating Meriter's fee according to the DRG method. It asserts that the in pari materia doctrine requires us to read Wis. Stat. § 302.38, which governs indigent prisoners, with Wis. Stat. § 49.02(5)(bm), which governs relief block grants. Both statutes direct the agencies to pay according to the medical assistance rate determined by DHFS. Dane County claims that DHFS has set the medical assistance rate for relief block grants at the discharge rate. It argues that an absurd result will occur if we read § 302.38 to require different county agencies to pay different fees to Meriter for the same services to indigent clients. Therefore, it urges us to apply the discharge rate to indigent prisoners as well. It also asserts that the attorney general supported its position by characterizing § 49.02 and § 302.38 as "similar species," such that one department could process forms and negotiate costs for both the jail and general relief agencies. See OAG 249, 255 (1988).

¶ 16. Meriter replies that there is no basis to read Wis. Stat. § 302.38(3) in conjunction with Wis. Stat. § 49.02(5)(bm). We agree. The in para materia doctrine applies when statutes relate to the same subject matter or have a common purpose. Perra v. Menomonee Mut. Ins. Co., 2000 WI App 215, ¶ 9, 239 Wis. 2d 26, 619 N.W.2d 123. These two statutes provide medical care for different groups of indigent people: non-prisoners and prisoners. The difference between these groups is considerable. We cannot presume that each statute's policy concerns are sufficiently similar to merit the in para materia doctrine. Although the attorney general characterized the agencies as similar, that opinion does not bind us and does not address the issue of this cross-appeal.

¶ 17. The record contains DHFS guidelines directing Meriter to use DRG methodology and a letter from DHFS to Dane County that reads in pertinent part: "Mfedicaid actually pays hospitals on a Diagnosis Related Group (DRG) basis . . . ." DHFS requires Meriter to use the DRG rate for medical assistance claims. Wisconsin Stat. § 302.38(3) limits the county's liability "to the amount payable by medical assistance under subch. IV of ch. 49 ...." Thus, the statute directs the county to pay according to the rate DHFS has set for medical assistance, which is the DRG rate.

¶ 18. Dane County contends that requiring it to pay the full DRG amount renders the term "maximum" meaningless. It argues that Wis. Stat. § 302.38(3) does not prohibit Dane County from paying less than the maximum medical assistance amount; it only prohibits paying more. Meriter asserts that this interpretation of "maximum" would render § 302.38(2) meaningless because Dane County could comply with § 302.38(3) by paying one dollar. Such a payment would not exceed the maximum permitted, but would violate the mandate that "the county shall pay the costs...." provided in § 308.38(2). We agree. The legislature has not granted the county discretion to pay any amount less than the maximum amount for medical assistance. Section 302.38(2) would be eviscerated by such discretion because the county would preserve its resources by paying as little as possible.

¶ 19. Dane County also claims that the usual practice between the parties was for it to pay Meriter the discharge rate and that Meriter is trying now to select the method most advantageous to it, absent any statutory to do so. We consider this argument unpersuasive. Pursuant to Wis. Stat. § 49.45(3)(e)l, DHFS determined that Meriter must calculate its fee according to the DRG method. The decision equally binds Meriter and Dane County. Neither party has statutory authority to regulate the payment system for Medicaid. The usual practice between the parties is immaterial.

¶ 20. Finally, Dane County asserts that the trial court should have granted it summary judgment because Meriter did not disprove its evidence that the State's fiscal agent advised it to pay Meriter the discharge rate. But the fiscal agent does not have statutory authority to administer Wis. Stat. § 302.38; DHFS bears that responsibility. Dane County also argues that no reasonable inferences exist to support granting Meriter partial summary judgment. It claims the evidence Meriter submitted to prove that DHFS required it to use the DRG rate for medical assistance was irrelevant. We disagree. The evidence Meriter submitted showing that it applied the DRG rate to medical assistance was probative of the county's liability for "the amount payable by medical assistance under subch. IV of ch. 49." We affirm.

By the Court. — Judgment affirmed.

       We note that Badger State Sheriffs Association, Wisconsin Counties Association, and Wisconsin Hospital Association, Inc., filed amicus curiae briefs in this case.

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

       Wisconsin Stat. § 302.38 reads in pertinent part:
      Medical Care of Prisoners. (1) If a prisoner needs medical or hospital care . .. [the] superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment and may transfer the prisoner to a hospital... making provision for the security of prisoner ....
      (2) The prisoner is liable for the costs of medical and hospital care outside the jail or house of correction. If the prisoner is unable to pay the costs, the county shall pay the costs in the case of persons held under the state criminal laws or for contempt of court....
      (3) The maximum amount that a governmental unit may pay for the costs of medical or hospital care under this section is limited for that care to the amount payable by medical assistance under subch. IV of ch. 49 ...."

       Wisconsin Stat. § 301.01(2) reads in pertinent part: " 'Prisoner' means any person who is either arrested, incarcerated, imprisoned or otherwise detained in excess of 12 hours by any law enforcement agency of this state .. . ."

       Pertinent portions of Wis. Stat. § 302.38 cited supra, footnote 2.

       Wisconsin Stat. § 49.02(5)(bm) provides in pertinent part: "A relief agency shall limit its liability for health care services funded by a relief block grant to the amount payable by medical assistance under subch. IV for care for which a medical assistance rate exists."

       Wisconsin Admin. Code § HFS 101.03(94m) provides: " 'Medicaid purchase plan' means the medical assistance program allowed under 42 USC 1396a(a)(10)(A)(ii) and s. 49.472, Stats." Wisconsin Stat. § 49.472 governs medical assistance purchase plans in Wisconsin. Therefore, Medicaid encompasses the medical assistance programs in Wisconsin.


author: NETTESHEIM, J.

text:
    Gerald Gielow and Carol Gielow, Plaintiffs-Appellants, v. Thaddeus F. G. Napiorkowski and Anna Napiorkowski, Defendants-Respondents.

    Court of Appeals

      No. 03-0050.

      Submitted on briefs September 25, 2003.

      Decided November 26, 2003.

    2003 WI App 249
    (Also reported in 673 N.W.2d 351.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Christopher T. Hale of Hale & Wagner, S.C. of Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Eric S. Darling of Schmidt, Darling & Erwin of Milwaukee.
    Before Anderson, PJ., Nettesheim and Snyder, JJ.

       Petition to review denied 2-24-04.

   NETTESHEIM, J.

¶ 1. Gerald and Carol Gielow brought this action against Thaddeus and Anna Napiorkowski, alleging that the Napiorkowskis misrepresented the condition of a home that Gerald purchased from them. At summary judgment, the trial court ruled that a "Release of All Claims" given by the Gielows to the Napiorkowskis in settlement of prior litigation between the parties also released the Gielows claims in this case. The court also rejected the Gielows' alternative claim that the Release should be set aside under the law of mutual mistake and unilateral mistake based on the Napiorkowskis' alleged fraud and misrepresentation.

¶ 2. We reverse and remand. We hold that the language of the Release is ambiguous as to whether the parties intended it to cover any future claims by the Gielows. We remand for a trial on this question. We also hold that there are material issues of fact on the Gielows' alternative claims that the Release should be set aside under the law of mutual mistake and unilateral mistake based on the alleged fraud. Similarly, we hold that a material question of fact exists on the Napiorkowskis' defense under the economic loss doctrine, which contains an exception where fraud induces the contract. We remand for a trial on these further issues should the fact finder determine that the Release covers the Gielows' claims in this case.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April 1988, the Napiorkowskis listed their home for sale, representing, among other things, that the home was a "ranch style" with a "family room" that had been refurbished within the last three years. The Napiorkowskis completed and provided Gerald with a Seller's Real Estate Condition Report dated April 26, 1988. The Condition Report stated that there had been no remodeling or additions that had changed the original floor plan of the home. As a result, the Gielows did not know that the Napiorkowskis had reconstructed a breezeway situated on a "floating slab" into an attached family room with a vaulted cathedral ceiling. On May 25, 1988, Gerald purchased the home from the Napiorkowskis.

¶ 4. In June 1989, Gerald discovered a problem with the electrical wiring and water lines in the basement of the home. Following an inspection, the village of Thiensville electrical inspector informed the Gielows that the electrical work in the basement had not been performed by a licensed electrical contractor and was performed without an electrical permit.

¶ 5. On May 24, 1991, Gerald filed an action against the Napiorkowskis alleging that the Napiorkowskis had made misrepresentations regarding the condition of the electrical and plumbing systems of the home. The action was eventually settled by the Napiorkowskis paying the Gielows the sum of $8500. In exchange, the Gielows executed a "Release of All Claims." The Release, drafted by the Napiorkowskis, states in relevant part:

Gerald L. Gielow ... hereby releases and forever discharges [the Napiorkowskis]... of and from any and all claims, demands, rights, liabilities, allegations, causes of action ... in law or in equity, which Gielow now has or may hereafter have against the Napiorkowskis in any shape arising out of, under, on account of... or by reason of any matter, cause, thing, action or nonaction whatsoever, which has occurred or accrued prior to or on the date of execution of this Release, and which has any connection whatsoever to the sale of [the property] by the Napiorkowskis to Gielow, and the claims set forth in the civil action... now pending in Milwaukee County Circuit Court....
As to the above matters covered hereby, this Release extinguishes all claims past, present, or future, whether known or unknown, foreseen or unforeseen, which are related to or arise out of, the above-described litigation .... The parties consciously intend to disregard the possibility that there may be further claims as causes of action or claims now existing which are related to, or arise out of, the above-described litigation to which they are not currently aware, and the parties consciously intend to waive and release all such claims entirely.

¶ 6. Thereafter, in October 1998, the remodeled family room of the Gielows' home separated from the remainder of the house. The village of Thiensville building inspector conducted an on-site inspection and informed the Gielows that the family room was built on a floating slab that had begun to settle and pull away from the house. As a result, the family room was in "structural failure." The inspector further advised that the family room had been constructed in violation of the building codes and without the necessary permits. The inspector opined that the Gielows could not have discovered the violation until the separation occurred. The cost to repair the separation was estimated at $80,000.

¶ 7. Based on these allegations, the Gielows commenced this action seeking relief from the Release on the grounds of mutual mistake and unilateral mistake based on fraud. Separate and apart from these mistake claims, the Gielows alleged claims of intentional misrepresentation and strict responsibility misrepresentation.

¶ 8. In response to the Gielows' amended complaint, the Napiorkowskis filed a motion to dismiss, relying on the Release executed by the Gielows in the previous action. During the course of the briefing and ensuing arguments, the parties supplied the trial court with evidentiary material beyond the allegations of the amended complaint. The trial court therefore treated the motion as one for summary judgment.

¶ 9. Originally, the trial court determined that the Release was unambiguous and covered the Gielows' claims in this case. Thus, the court turned to the Gielows' alternative claim seeking relief from the Release on the basis of mistake. Citing the Real Estate Condition Report provided by the Napiorkowskis and the disparity between the consideration paid for the Release in the prior case and the damages alleged in this case, the court held that there were material issues of fact as to the Gielows' mistake claims. Accordingly, the court denied the summary judgment motion.

¶ 10. However, the matter did not proceed to trial. Instead, following discovery, the Napiorkowskis filed a further motion for summary judgment, renewing their claim that the evidence did not establish any material issues of fact in support of the Gielows' claims for relief under the law of mistake. In addition, the Napiorkowskis claimed that the Gielows' tort claims arose out of a contractual relationship and were therefore barred by the economic loss doctrine. Reversing its earlier ruling, the trial court held that the summary judgment record did not reveal any material issue of fact in support of the Gielows' claim of mutual mistake. Based on that ruling and on the court's earlier ruling that the Release barred all future claims by the Gielows, the court granted the Napiorkowskis' motion for summary judgment dismissing the Gielows' action with prejudice.

¶ 11. The Gielows appeal.

DISCUSSION

Standard of Review and Summary Judgment Methodology

¶ 12. This court reviews a grant of summary judgment de novo, applying the same methodology as the circuit court. Miller ex rel. Fehring v. Wausau Underwriters Ins. Co., 2003 WI App 58, ¶ 10, 260 Wis. 2d 581, 659 N.W.2d 494. Summary judgment methodology is well known, and we will not repeat it here in detail. Suffice it to say that summary judgment is appropriate if there is no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law. Id.; Wis. Stat. § 802.08(2) (2001-02). We further observe that when the parties present matters outside the pleadings on a motion to dismiss, the motion shall be processed as one for summary judgment. See Wis. Stat. § 802.06(3).

The Release

¶ 13. We first address whether the Release executed by the Gielows to the Napiorkowskis in settlement of the prior action is global, thereby barring the Gielows' claims in this case.

¶ 14. A release is to be treated as a contract. Peiffer v. Allstate Ins. Co., 51 Wis. 2d 329, 336, 187 N.W.2d 182 (1971). Releases should be construed to give effect to the intention of the parties. Brown v. Hammermill Paper Co., 88 Wis. 2d 224, 233-34, 276 N.W.2d 709 (1979). However, the parties' intent "must be sought from the whole and every part of the instrument and from the surrounding conditions and circumstances." Id. at 234. Intent is a fact seldom determinable on summary judgment. Muchow v. Goding, 198 Wis. 2d 609, 629, 544 N.W.2d 218 (Ct. App. 1995). When a party's intent as to the scope of a release is the issue, "summary judgment is generally inappropriate." See id. (citation omitted). A fundamental rule of contract construction, which serves as a primary guideline in a court's consideration of a contract's ambiguity, is that any ambiguity must he construed most strongly against the drafting party. Capital Invs., Inc. v. Whitehall Packing Co. Inc., 91 Wis. 2d 178, 190, 280 N.W.2d 254 (1979).

¶ 15. Here, the trial court found that the Release was unambiguous and that the parties intended that it apply to the damages alleged in this action. Undoubtedly, certain isolated language in the Release supports the trial court's interpretation. For instance, the Release refers to possible future claims and states, "[T]he parties consciously intend to waive and release all such claims entirely." However, that phrase is preceded by the following language in the very same sentence: "The parties consciously intend to disregard the possibility that there may be further claims as causes of action or claims now existing which are related to, or arise out of, the above-described litigation to which they are not currently aware .. . (Emphasis added.) This qualifying language suggests that the Release is not global, but rather is limited to possible future claims relating to the electrical and plumbing issues, which were the subject of the litigation that produced the Release.

¶ 16. Another portion of the Release creates a similar interpretative dilemma:

Gerald L. Gielow ... hereby releases and forever discharges [the Napiorkowskis] ... of and from any and all claims ... which Gielow now has or may hereafter have against the Napiorkowskis in any shape arising out of, under, on account of, with respect to, in connection with, or by reason of any matter, cause, thing, action or nonaction whatsoever, which has occurred or accrued prior to or on the date of execution of this Release, and which has any connection whatsoever to the sale of [the property] by the Napiorkowskis to Gielow ... ,

This language certainly has a global ring. However, it concludes with the following: "and the claims set forth in the civil action in which Gielow is the plaintiff and the Napiorkowskis are defendants, now pending in Milwaukee County Circuit Court, Case No. 91-CV-007371." (Emphasis added.) As with the earlier example, this additional language in the very same sentence appears to qualify the otherwise sweeping effect of the preceding language.

¶ 17. The law favors interpretations that give a reasonable meaning to all of the language of a release. See Fleming v. Threshermen's Mut. Ins. Co., 131 Wis. 2d 123, 132, 388 N.W.2d 908 (1986). Giving a reasonable meaning to all of the language of the Release, we conclude that the Release is ambiguous on the question of whether the parties intended a global release or a release limited to the Gielows' claims in the prior litigation. In addition, we take note that the Napiorkowskis drafted the Release. As such, the ambiguities in the document are construed against them. See Capital Invs., 91 Wis. 2d at 190.

¶ 18. The law also recognizes that the consideration given for a release is a proper factor for consideration when determining the scope of a release. See Pokorny v. Stastny, 51 Wis. 2d 14, 23-24, 186 N.W.2d 284 (1971). Here, the disparity between the consideration paid for the Release ($8500) and the amount of damages claimed ($80,000) is significant. This disparity contributes to our conclusion that a material issue of fact exists as to the parties' intent regarding the scope of the release.

¶ 19. We reverse the trial court's grant of summary judgment on this issue and remand for a trial on the question of the parties' intent regarding the scope of the release.

Mutual Mistake and Unilateral Mistake

¶ 20. Our remand for a trial on the scope of the Release allows for the possibility that the fact finder might determine that the parties intended the Release to cover the Gielows' claims in this case. In that event, the Gielows' alternative claims seeking relief from the Release on the grounds of mutual mistake and unilateral mistake based on fraud come into play. We now address that question.

¶ 21. As noted, the Napiorkowskis moved to dismiss the Gielows' claim for relief from the Release under the law of mistake. Treating the motion as one for summary judgment, the trial court denied the motion. However, following discovery, the Napiorkowskis renewed their request for dismissal via a further motion for summary judgment. Based on the expanded record, the trial court changed its prior ruling and granted the motion. The Gielows appeal, contending that material issues of fact exist on the question of what the Napiorkowskis knew, or should reasonably be held to have known, regarding the alleged latent defect.

¶ 22. A "compromise" or contract settling a suit may be set aside for mutual mistake of fact. See Grand Trunk W.R.R. Co. v. Lahiff, 218 Wis. 457, 461, 261 N.W. 11 (1935). Mutual mistake exists where both parties to a contract are unaware of the existence of a past or present fact material to their agreement. Wis JI — Civil 3072. This unawareness or belief, however, must arise from a lack of knowledge of the possibility that the fact may or may not exist. Id. If there was conscious doubt or uncertainty on the part of the parties as to the existence or nonexistence of a fact or situation, and the parties reached an agreement under such circumstances, it is considered that it was their intention and contemplation to accept and compromise the consequences of the doubt and uncertainty, and they would not then be acting under mutual mistake of fact. Id. For a mistake to be mutual, it must involve both parties. Id.

¶ 23. However, mutuality of mistake is not required where the mistake is the product of fraud practiced by one party to the agreement against the other. In the words of the uniform jury instruction, "A mere mistake on the part of one, in the absence of fraud on the part of the other, is not such to avoid a contract obligation." Id. (emphasis added). See also Doyle v. Teasdale, 263 Wis. 328, 337, 57 N.W.2d 381 (1953). In this case, the Gielows sought relief from the Release based not only on mutual mistake, but also on unilateral mistake due to the Napiorkowskis' alleged fraud. We address both claims in a singular discussion since the evidence bearing on these claims is the same.

¶ 24. The trial court determined that there was no mutual mistake regarding the existence of a family room because the home did in fact have a family room. However, it is not the Gielows' knowledge that there was a family room as opposed to a breezeway that caused their damage. Rather, their claim rests on the allegation that the Napiorkowskis knew or should have known that the family room was improperly built on a floating slab without the necessary permits and in violation of building codes. As such, the Gielows contend that the Napiorkowskis knew, or should reasonably be held to have known, the potential for future damage.

¶ 25. The Napiorkowskis rely on their averments that they did not know what a "floating slab" was and that they were unaware that their remodeling violated the building codes or required permits. However, other evidence suggests that the conduct of the Napiorkowskis was not as benign. The Napiorkowskis provided the Gielows with a Real Estate Condition Report which inquired whether the Napiorkowskis constructed any remodeling or additions that may have changed the original floor plan of the dwelling. The Napiorkowskis answered "No." This response conveniently excused the Napiorkowskis from having to answer a subset question inquiring whether a building permit had been obtained authorizing the remodeling. However, the summary judgment evidence reveals that a building permit was required. And the affidavit of the Gielows' inspector, relying on the records of the village tax assessor, concluded that the remodeling did change the floor plan.

¶ 26. The Napiorkowskis also point to the fact that the parties did not discuss or investigate the question of whether there were potential problems with other aspects of the home prior to entering into the Release. However, this might well detract from, rather than support, their argument. We say this because it suggests an issue of fact on the questions of: (1) whether the parties had "conscious doubt or uncertainty... as to the existence or non-existence of [the defect], and ... reached an agreement under such circumstances ..." and (2) whether "it was [the parties'] intention and contemplation to accept and compromise the consequences of the doubt and uncertainty. . . ." See Wis JI — Civil 3072.

¶ 27. Finally, as with the prior issue concerning the scope of the release, the adequacy of the consideration paid for a release is also relevant on the question of mutual mistake or fraud. Jandrt v. Milwaukee Auto Ins. Co., 255 Wis. 618, 626, 39 N.W.2d 698 (1949). In fact, a court may place considerable significance on the adequacy of the consideration. Id. "Although inadequate consideration will not in itself justify setting aside a release, it is a factor properly considered and is strong evidence tending to show a mutual mistake of fact." Liles v. Employers Mut. Ins. of Wausau, 126 Wis. 2d 492, 498, 377 N.W.2d 214 (Ct. App. 1985). Here, if the fact finder determines that the Release was global, the Gielows received $8500 in exchange for all past and future claims, including the present claim, which alleges damages at $80,000 in the amended complaint and $100,000 according to subsequent evidence. This disparity supports our conclusion that a material issue of fact exists on the Gielows' claim of mutual mistake and the subset claim of unilateral mistake based on fraud. Moreover, evidence of such disparity would be relevant to a trial of these claims, should such a trial prove necessary.

¶ 28. We hold that the summary judgment evidence raises material questions of fact on the Gielows' claim of mutual mistake and unilateral mistake based on fraud. More specifically, the summary judgment evidence raises the legitimate question of whether the parties, in the words of the jury instruction, "[were] unaware of the existence of a past or present fact material to their agreement" or "[were] conscious or aware of, or alerted to, the possibility that a fact does or does not exist, and they waive any inquiry or make no investigation with respect to [such fact] . . . See Wis JI — Civil 3072. We similarly hold that the summary judgment evidence raises a material question of fact on the Gielows' related claim of unilateral mistake based on alleged fraud. "A mere mistake on the part of one, in the absence of fraud on the part of the other, is not such to avoid a contract obligation." Id. (emphasis added).

Economic Loss Doctrine

¶ 29. In their summary judgment motion, the Napiorkowskis also sought dismissal of the Gielows' claims under the economic loss doctrine. The trial court did not reach this question because its prior rulings rendered the issue moot. We choose to address the issue because the parties have fully briefed the matter and the question comes to us via a motion for summary judgment which presents a question of law. See Miller, 260 Wis. 2d 581, ¶ 10. Our discussion will also clarify how this issue should be addressed in the trial court, should the fact finder determine that the Gielows' claims are barred by the Release.

¶ 30. The economic loss doctrine exists to preserve the distinction between tort and contract law. It exists to protect the expectations of parties to commercial transactions to allow such parties the freedom to allocate any incidental risks. "In other words, the economic loss doctrine requires transacting parties in Wisconsin to pursue only their contractual remedies when asserting an economic loss claim, in order to preserve the distinction between contract and tort law." Digicorp, Inc. v. Ameritech Corp., 2003 WI 54, ¶ 34, 262 Wis. 2d 32, 662 N.W.2d 652.

¶ 31. However, in Digicorp, our supreme court recognized a narrow "fraud in the inducement" exception to the economic loss doctrine. Id., ¶ 3. Generally, in order for the fraud in the inducement exception to apply, the misrepresentation must have occurred before the formation of the contract. Id., ¶ 52. In addition, a plaintiff must prove the five elements of intentional deceit or misrepresentation set forth in the case law and in Wis JI — Civil 2401 by clear, satisfactory, and convincing evidence. Digicorp, 262 Wis. 2d 32, ¶ 52. In essence, the fraud in the inducement must be interwoven with the contract in that it involves matters for which risks and responsibilities were addressed. Id., ¶ 3. The Digicorp court noted that its adoption of this exception did not undo the purposes of the economic loss doctrine since the exception was a narrow one that maintains the distinction between contract and tort remedies in most situations. Id., ¶ 52.

¶ 32. We have already held that there are material issues of fact on the Gielows' claim for relief from the Release under the law of unilateral mistake based on fraud. From that, it logically follows that there are similar issues of fact regarding the fraud exception to the economic loss doctrine under Digicorp. In addition, there is a material question of fact as to whether any misrepresentation occurred before the parties entered into the contract. In short, the vitality of the Napiorkowskis' economic loss defense cannot he determined until these factual questions are resolved.

CONCLUSION

¶ 33. We hold that the language of the Release is ambiguous as to its scope and therefore there are material questions of fact regarding the parties' intent regarding the scope of the Release. We remand for a trial on that question.

¶ 34. We also hold that there are material questions of fact regarding the Gielows' claims seeking relief from the Release on the grounds of mutual mistake and unilateral mistake based on alleged fraud. In the event the fact finder determines that the Release covers the Gielows' misrepresentation claims, we direct a trial on these additional claims.

¶ 35. Finally, we hold that there are also material questions of fact regarding the "fraud in the inducement" exception to the economic loss doctrine. Again, should the fact finder determine that the Release covers the Gielows' misrepresentation claims, we direct a trial on this question.

By the Court. — Judgment reversed and cause remanded.

       Since the Gielows would first have to obtain relief from the Release, the trial court's ruling mooted the Gielows' further claims of intentional misrepresentation and strict responsibility misrepresentation.

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

       Although this language refers only to Gerald Gielow, the release was also signed by his wife, Carol, who was a co-plaintiff in the amended complaint. The Gielows do not argue that Carol is not bound by the terms and scope of the Release.

       A further provision of the Release clearly supports the Gielows' claim that the Release was limited to the claims asserted in the prior action. This provision reads: "As to the above matters covered hereby, this Release extinguishes all claims past, present, or future, whether known or unknown, foreseen or unforeseen, which are related to or arise out of, the above-described litigation." (Emphasis added.)

       Other evidence placed the damages in the $100,000 range.

       Most of the case law pertaining to "mutual mistake" addresses global releases given in reliance upon incorrect medical representations or diagnoses. See, e.g., Liles v. Employers Mut. Ins. of Wausau, 126 Wis. 2d 492, 496, 377 N.W.2d 214 (Ct. App. 1985); Krezinski v. Hay, 77 Wis. 2d 569, 574, 253 N.W.2d 522 (1977). The parties' briefs debate whether these medical diagnosis cases lend themselves to property defect cases such as this. However, we need not venture into that debate since an earlier case, Meeme Mutual Home Protection Fire Insurance Co. v. Lorfeld, 194 Wis. 322, 216 N.W. 507 (1927), applied the law of mutual mistake in a factual setting not involving a medical diagnosis. In Meeme, an insurance company paid a claim for a fire loss despite harboring a suspicion that the fire was arson. Id. at 322-23. Seeking to recover the payment after the suspected arsonist confessed, the supreme court applied the law of mutual mistake, concluding that the insurance company had not made the payment under a mistake of fact. Id. at 324 — 25. Moreover, the standard jury instruction, "Avoidance for Mutual Mistake of Fact," Wis JI — Civil 3072, contains a separate suggested paragraph for medical representation indicating that the preceding paragraphs apply to nonmedical situations.

       The work of the Civil Jury Instructions Committee is insightful and can be persuasive. Pachowitz v. LeDoux, 2003 WI App 120, ¶ 21 n.7, 265 Wis. 2d 631, 666 N.W.2d 88, review denied, 2003 WI 140, 266 Wis. 2d 63, 671 N.W.2d 849 (Wis. Oct. 21, 2003) (No. 02-2100).

       At the summary judgment hearing, the parties agreed with the trial court that the Gielows' claim of mutual mistake governed the motion. Therefore, the court's ruling did not expressly address the Gielows' subset claim of unilateral mistake based on fraud. This raises the prospect of waiver by the Gielows on their claim of unilateral mistake. However, since we hold that a material issue of fact exists on the Gielows' claim of mutual mistake (a claim not waived), we choose to address their additional claim of unilateral mistake.

       The Napiorkowskis do not contend that the Gielows knew, or had reason to know, that the family room was constructed on a "floating slab" in violation of the building codes and without the necessary permits. Thus, the focus of the inquiry is on the Napiorkowskis' knowledge and conduct.

       The Napiorkowskis cite to the fact that the Real Estate Condition Report bears a date after the date of the contract of sale. The Gielows cite to the fact that the contract includes the Condition Report and that the contract was later amended.