author: ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Eric S. Fenz, Defendant-Appellant.
    Court of Appeals

      Nos. 01-1434-CR, 01-1435-CR, 01-1436-CR.

      Submitted on briefs

      February 12, 2002.

    Decided September 26, 2002.

    2002 WI App 244
    (Also reported in 653 N.W.2d 280.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jacob W. Gobel of Krek & Associates, S.C. of Jefferson.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and William L. Gansner, assistant attorney general.
    Before Roggensack, Deininger and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. Eric Fenz appeals his sentence for conviction of three counts of second-degree sexual assault and the court's order partially denying his motion for sentence modification. Fenz argues that the circuit court erroneously exercised its discretion when it used presentence credit as a factor in determining his sentence. Fenz also argues that the court erroneously added to his sentence the 342 days he spent in presentence custody and requests that we decrease his sentence by that amount. Because we conclude that the circuit court did not erroneously consider Fenz's presentence credit in determining an appropriate sentence and because Fenz was properly credited for time served, we affirm the imposed sentence and the circuit court's order partially denying his motion for sentence modification.

BACKGROUND

¶ 2. In January of 1996, Eric Fenz pled no contest to and was convicted of three counts of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2) (1999-2000). The circuit court withheld imposition of a sentence and placed Fenz on concurrent four-year probation terms for each count. His probation was subsequently revoked, and he returned to court for sentencing. Following a hearing, the circuit court sentenced Fenz to a total of ten years in prison; six years on count one, to run concurrent with a two year term on count two and a consecutive four year term on count three.

¶ 3. At sentencing, the circuit court determined that Fenz was entitled to 342 days of sentence credit for time served. The court also determined that because of the severity of Fenz's crimes and his failure on probation, to protect the public Fenz needed to receive institutional sex offender treatment. Correctional authorities advised the court that completion of such a program required at least six years of incarceration. To ensure that Fenz remained in prison for a term sufficient to complete the program, the court considered three factors that would influence the amount of time Fenz would spend in prison: (1) his 342 days of sentence credit, (2) the first date when he would be eligible for parole and (3) his likely mandatory release date. The court concluded that, "10 years . . . will result in about 8 years, which is in excess of the 6 years that they need to run you through the treatment program."

¶ 4. Fenz entered the prison system and was designated to participate in the sex offender program anticipated by the circuit court. Fenz appealed the designation and was reassigned to a treatment program that required significantly less time to complete. Fenz filed a postconviction motion seeking modification of his sentence on two grounds: (1) the circuit court erroneously exercised its discretion when it considered the amount of presentence credit as a factor in determining an appropriate sentence length and (2) reassignment to a shorter treatment program constituted a new factor which frustrated the intent of the court's sentence and rendered the imposed sentence excessive.

¶ 5. The circuit court rejected the first ground of Fenz's motion, ruling that the court was entitled to consider all relevant factors in determining an appropriate sentence length and that the amount of presen-tence credit was a "highly relevant" factor in determining a length of sentence necessary to ensure that Fenz received institutional treatment. The court, however, granted Fenz's motion on the second ground and reduced his sentence from ten to six years. The court emphasized that because its intent in sentencing Fenz was to ensure that he receive treatment, reassignment to a shorter treatment program justified modifying Fenz's sentence downward. Fenz appeals his current sentence and the court's order partially denying his motion for sentence modification.

DISCUSSION

Standard of Review. .

¶ 6. Sentencing is committed to the sound discretion of the circuit court, and our review is limited to determining whether the court erroneously exercised its discretion. McCleary v. State, 49 Wis. 2d 263, 278, 182 N.W.2d 512, 520 (1971).

Presentence Credit.

¶ 7. Our limited review of sentencing reflects a strong public policy against interference with sentencing discretion; we presume that the circuit court acted reasonably and assign to the defendant the burden to "show some unreasonable or unjustified basis in the record for the sentence." State v. Harris, 119 Wis. 2d 612, 622-23, 350 N.W.2d 633, 638-39 (1984). Fenz argues that the circuit court erred when it used the amount of his presentence credit as a factor in determining an appropriate sentence. An erroneous exercise of discretion may occur when a court has made a decision without explaining its reasoning or when a sentence has been based on clearly improper factors. State v. Wickstrom, 118 Wis. 2d 339, 354-55, 348 N.W.2d 183, 191 (Ct. App. 1984). Fenz contends that his constitutional right to receive "a just and deserving sentence" was compromised when the court failed to follow the sentencing procedure established in Klimas v. State, 75 Wis. 2d 244, 249 N.W.2d 285 (1977) and later reaffirmed in Struzik v. State, 90 Wis. 2d 357, 279 N.W.2d 922 (1979). We disagree.

¶ 8. In Klimas, the supreme court established a procedure for applying presentence credit against a sentence. Klimas, 75 Wis. 2d at 252, 249 N.W.2d at 289. The supreme court ruled that the equal protection provisions of the Fourteenth Amendment compelled it to reduce a sentence by the amount of credit due the defendant for time served in custody. Id. at 250, 249 N.W.2d at 288. The court suggested the following sentencing procedure:

[T]he trial judge [should] sentence for the gross amount that he concludes, in his discretion, to be appropriate. He then should make a separate finding that the defendant has ... been obliged to remain in custody for the ascertained period, and that such period of time be deemed time served in partial satisfaction of the sentence, and which time shall be credited as time served by the confining authority.

Id. at 252, 249 N.W.2d at 289.

¶ 9. The supreme court reaffirmed this procedure in Struzik, 90 Wis. 2d at 367, 279 N.W.2d at 926. In Struzik, the circuit court acknowledged at sentencing that Struzik was entitled to fourteen days credit for time served in custody prior to posting bail. Id. However, the court nullified this credit by sentencing Struzik to five years and fourteen days. Citing Klimas, the supreme court concluded that the circuit court's procedure was an erroneous exercise of discretion because proper procedure required the court to "first determine an appropriate sentence, then determine the time spent in preconviction custody, and finally credit that time toward the sentence imposed." Id. at 367-68, 279 N.W.2d at 926.

¶ 10. Fenz argues that Klimas and Struzik established a "bright line" rule for circuit courts to follow when applying credit for time served against a sentence. While we agree that Klimas and its progeny established a general rule for applying sentence credit, the circuit court's decision here does not run afoul of that Klimas ¡Struzik rule. The circuit court determined that Fenz needed to receive institutional sex offender treatment and that completion of that program required at least six years incarceration. In order to accomplish this very specific incarceration goal, it was necessary for the court to consider those factors that would influence the amount of time Fenz actually would spend in prison. This determination required consideration of the amount of presentence credit. Accordingly, we conclude that the circuit court properly employed the Klimas I Struzik rule because it articulated a specific time-related incarceration goal and that goal required the court to consider the presentence credit due Fenz.

¶ 11. Our holding is consistent with both Klimas and Struzik where the supreme court stated that, at sentencing, the circuit court's first responsibility is to determine an appropriate sentence. See Klimas, 75 Wis. 2d at 252, 249 N.W.2d at 289; Struzik, 90 Wis. 2d at 367, 279 N.W.2d at 926. Again in State v. Walker, 117 Wis. 2d 579, 345 N.W.2d 413 (1984), the supreme court stated that "trial judges are first to determine and impose an appropriate sentence." Walker, 117 Wis. 2d at 586, 345 N.W.2d at 416 (emphasis added). In order to fashion an appropriate sentence, the circuit court is entitled, indeed required, to consider all legally relevant factors. See Anderson v. State, 76 Wis. 2d 361, 364, 251 N.W.2d 768, 770 (1977). Here, one of the relevant factors is the length of Fenz's presentence custody because it will affect the time he actually spends in prison. His expected incarceration term impacted the circuit court's goal that Fenz receive sex offender treatment in an institutional setting while not remaining incarcerated longer than was necessary to receive treatment. And unlike Struzik, the circuit court did not tack onto the sentence chosen the amount of time served; rather, the circuit court used presentence credit as a factor to fashion a sentence appropriate to achieve the court's goal in the first instance.

¶ 12. In concluding that a court may, in specific circumstances, consider presentence credit as a factor in determining an appropriate sentence, we remain mindful of a defendant's constitutional right to receive credit for time already served. Here, the record indicates that Fenz was credited 342 days for time served. Therefore, we affirm Fenz's sentence and the court's order partially denying sentence modification.

CONCLUSION

¶ 13. Because we conclude that the circuit court did not erroneously consider Fenz's presentence credit in determining his sentence and because Fenz was properly credited for time served, we affirm his sentence and the circuit court's order partially denying his motion for sentence modification.

By the Court. — Judgment and order affirmed.

       Fenz was originally charged in three separate complaints involving three different victims with a total of four counts of second-degree sexual assault of a child, one count of second-degree sexual assault of a child by use of force and one count of first-degree sexual assault of a child. The circuit court consolidated the three cases and they remain consolidated. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Wisconsin Stat. § 948.02(2) has not been amended in a manner that would alter the disposition of this case since Fenz's conviction.

       As a condition of probation, the court required Fenz to receive counseling including sex offender treatment.

       The procedure outlined in Klimas was subsequently codified in Wis. Stat. § 973.155(2) (1999-2000). Section 973.155(2) provides that "[a]fter the imposition of sentence, the court shall make and enter a specific finding of the number of days for which sentence credit is to be granted, which finding shall be included in the judgment of conviction."

       The record unequivocally demonstrates that the circuit court's intent was to ensure that Fenz remained in prison long enough to complete a sex offender treatment program. The court stated this intent at original sentencing and later reduced the sentence because correctional authorities placed Fenz in a treatment program that required significantly less time to complete.


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    In re the Marriage of: Daniel R. Taylor, Petitioner-Respondent, v. Susan M. Taylor, Respondent-Appellant.
    Court of Appeals

      No. 02-0118.

      Submitted on briefs May 13, 2002.

    Decided September 26, 2002.

    2002 WI App 253
    (Also reported in 653 N.W.2d 524.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Michael D. Engleson and Gregg A. Auby of Auby & Engleson, LLC, Sun Prairie.

      On behalf of the petitioner-respondent, the cause was submitted on the brief of Daniel W. Hildebrand and Nancy C. Wettersten of DeWitt Ross & Stevens, S.C., Madison.
    Before Dykman, Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Susan Taylor appeals a circuit court order directing that the 35% share of a 401(k) plan awarded to her under a divorce property division be subject to a proportionate share of losses incurred by the plan following the date of divorce. Susan claims that she should receive a sum equal to 35% of the market value of the plan as of the date of her divorce from Daniel Taylor, without deduction for the losses which ensued. We conclude that under the unambiguous language of the parties' marital settlement agreement, Susan was awarded a 35% share of the plan as of the date of the divorce, and that Susan's share, like Daniel's, was subject to market gains and losses from that date until such time as she withdraws her share from the plan. Accordingly, we affirm the appealed order.

BACKGROUND

¶ 2. Daniel and Susan were divorced on September 15, 2000. They entered into a marital settlement agreement on that date which was approved by the court and incorporated into the judgment of divorce. As a part of the property division set forth in the agreement, Daniel's 401(k) plan, consisting primarily of stocks, was divided between the parties. Daniel received "[s]ixty-five percent (65%) of his Madison National Life 401(k) plan, to be divided by Qualified Domestic Relations Order (QDRO)," and Susan received "[t]hirty-five percent (35%) of Daniel's Madison National Life 401(k) plan, to be divided by QDRO."

¶ 3. Some six months after the date of the divorce, Susan's counsel forwarded a draft QDRO to Daniel, to the trial court, and to the plan administrator for Daniel's 401(k) plan. Section III of the draft QDRO provided in part:

The Plan Administrator... is hereby directed to divide [Daniel's] benefit.. . accrued as of September 15, 2000 ("the valuation date") as follows:
A. The Plan Administrator shall determine the total value of [Daniel's] account under the Plan as of the date of valuation as defined under the terms of the Plan preceding the valuation date....
B. Thirty-five (35%) Percent of the value determined under paragraph (A) above shall be transferred to an account under [Susan's] name .. . and such account shall thereafter be separately administered until it is fully distributed. There shall be no adjustment made to such transferred amount for changes in value of assets in [Daniel's] account under the Plan occurring after the valuation date through the date [Susan's] account... is actually established.

(Emphasis added.) The draft QDRO also provided that Susan's account "shall be distributed to [her] in a cash lump sum as soon as administratively feasible after acceptance by the Plan Administrator of this Order."

¶ 4. Daniel wrote Susan's counsel and the trial court objecting to the emphasized language in Paragraph III-B of the draft QDRO. Daniel noted that the stock market had declined since the date of divorce, causing his 401(k) plan to lose value. Daniel contended that if Susan were to receive a "transferred amount" that did not reflect a proportionate share of the post-divorce losses, he would be penalized by "absorb [ing] the losses on both my portion of the 401(k) plan and Susan Taylor's as well." Daniel argued further that "[t]his would create a division of assets, which would give [Susan] a much larger share than the court ordered 35% share."

¶ 5. The trial court requested briefing on the issue. Susan argued that she was entitled to receive a sum in dollars equal to 35% of the value of the 401(k) plan as of the divorce date, with no adjustment for subsequent losses. Daniel responded that because Susan had agreed to a percentage of Daniel's 401(k) plan rather than a fixed dollar amount, her share (like his) was subject to fluctuations in market value until redeemed. He asserted that the actual dollar value of Susan's 35% share on the date of divorce "has no relevance . . . except to the extent that it was useful for purposes of determining what percentage was equitable as of the date of divorce."

¶ 6. The trial court agreed with Daniel, concluding that "[b]y opting to take a percentage of the 401(k) Susan could enjoy the benefits of an increase in the value of the funds. At the same time, though, she had to assume the risk of a decrease in value." Accordingly, the court ordered that "Susan is entitled to 35% of the assets in Daniel's 401(k) on September 15, 2000, plus or minus any change in value attributable to those assets from that date until the creation" of the separate account for her share of the plan. Susan appeals, renewing her argument that her share of Daniel's 401(k) plan should consist of a sum equal to 35% of the dollar value of the plan as of the divorce date, without adjustment for subsequent losses.

ANALYSIS

¶ 7. We generally review a trial court's decisions relating to the division of property between divorcing parties for the erroneous exercise of discretion. Brandt v. Brandt, 145 Wis. 2d 394, 406, 427 N.W.2d 126 (Ct. App. 1988). This appeal, however, requires us to interpret the language of a marital settlement agreement, which is "in the nature of a contract," the construction of which is a question of law we decide de novo. Rosplock v. Rosplock, 217 Wis. 2d 22, 30, 577 N.W.2d 32 (Ct. App. 1998). When the terms of a contract are unambiguous, we will construe the contract as it stands without examining extrinsic evidence to determine the intent of the parties. Id. at 31. The language of a contract or marital settlement agreement is ambiguous if it is reasonably susceptible to more than one meaning. Id. at 30.

¶ 8. We conclude the language at issue is not ambiguous. The property division section of the agreement, which was signed by the parties on the date of their divorce, specifies that "the parties are awarded" the property thereafter enumerated for each. The itemization under the heading "To Daniel" includes "Sixty-five percent (65%) of his . . . 401(k) plan, to be divided by . . . (QDRO)." Similarly, among the items under the heading "To Susan" is "Thirty-five percent (35%) of Daniel's . . . 401(k) plan, to be divided by QDRO." The only reasonable interpretation of these provisions is that they grant Daniel a 65% share and Susan a 35% share of the 401(k) plan as of the date of the agreement and divorce.

¶ 9. Susan insists that the value of the 401(k) plan, and of her share in it, must be determined as of the date of the divorce, given the lack of "special circumstances" in this case. See Schinner v. Schinner, 143 Wis. 2d 81, 98, 420 N.W.2d 381 (Ct. App. 1988) (" [Generally the assets of a marriage are to be valued and divided as of the date of the divorce. Special circumstances can warrant deviation from this rule." (citation omitted)). We agree with Daniel, however, that the treatment of the 401(k) plan in this case fully comports with the general rule. It was "divided as of the date of the divorce," id., based on its value at that time, in order to equalize the value of the parties' respective shares of the marital estate.

¶ 10. In support of her claim that she is entitled to receive a dollar sum equal to 35% of the value of the 401(k) plan on the date of the divorce, Susan relies on our disposition in Schinner, where we affirmed the trial court's award to a wife of a fixed sum from the husband's pension fund. Id. at 95-98. We note first, however, that Schinner did not involve the interpretation of a marital settlement agreement. We were called upon in that appeal to review a trial court's fact-finding and exercise of discretion following a trial on disputed issues. Id. at 95. More importantly, we explained in Schinner that the wife.specifically requested the court to award her the fixed sum which she established as being the dollar value of the pension fund at the time of trial. Id. at 97 (The "value was not in dispute at trial. It was this amount which [wife] requested be awarded to her by use of a QDRO . . . .").

¶ 11. Thus, our conclusion in Schinner that the trial court did not err in awarding the wife the fixed amount she requested from the pension fund, while ordering that all post-valuation-date earnings of the fund be awarded to the husband, id. at 98, would be of benefit to Susan only if she, too, had received a fixed sum from Daniel's 401(k) instead of a percentage share. But, as we have discussed, that is not the agreement that the parties reached. The trial court aptly described the circumstances in its written decision:

Had [Susan] wanted to lock in a certain dollar figure, the parties could have agreed to that in their Marital Settlement Agreement....
Daniel's 401(k) was invested in a number of different funds. It is the nature of such investments that their value fluctuates. By opting to take a percentage of the 401(k) Susan could enjoy the benefits of an increase in the value of the funds. At the same time, though, she had to assume the risk of decrease in value.

¶ 12. "A court may not use the mechanism of construction to review an unambiguous contract in order to relieve a party from any disadvantageous terms to which the party has agreed." Rosplock, 217 Wis. 2d at 31. Nor may a court revise a divorce judgment with respect to a final property division. Wis. Stat. § 767.32(1)(a) (1999-2000) (providing that the court "shall not" revise or modify "the provisions of a judgment or order with respect to final division of property"). Thus, although time may have proven Susan's acceptance of a percentage share of Daniel's 401(k) plan as an unfortunate choice, neither we nor the trial court are in a position to rewrite the agreement or the divorce judgment incorporating it in order to eliminate Susan's loss. Quite simply, in agreeing to accept a percentage share of a variable asset, Susan agreed to assume a proportionate share of any subsequent gains or losses until such time as she liquidates the asset.

¶ 13. Susan asserts in her reply brief that allocating a proportionate share of plan losses incurred after the divorce date to her share of the account "is against fairness, policy, and judicial efficiency." We disagree. Daniel actually lost more in dollar value from the post-divorce diminution of the 401(k) plan than did Susan, given that his post-divorce share of the plan was almost twice that of Susan's. We fail to see how "fairness" would be served by shielding Susan from any post-divorce decline in plan value, while imposing the entire loss on Daniel.

¶ 14. Moreover, we note that many assets that are awarded to one party or another, or are divided on a percentage basis at the time of a divorce, may fluctuate in value thereafter. We conclude that judicial economy would be ill-served by permitting any party who suffers a loss upon liquidation of an asset awarded to him or her in a divorce to seek a judicial reallocation of the loss. If a party desires the comfort and security of a fixed dollar sum from a divorce property division, that is what he or she should bargain for — or ask the court to order, as did the wife in Schinner. In short, we see no equitable or policy reason why Susan should be relieved from the terms of the property division to which she agreed.

CONCLUSION

¶ 15. For the reasons discussed above, we affirm the appealed order.

By the Court. — Order affirmed.

       The Employee Retirement Income Security Act of 1974, and various provisions of the Internal Revenue Code, generally prohibit individuals from assigning their benefits in qualified private retirement plans to another person. Lindsey v. Lindsey, 140 Wis. 2d 684, 689-90, 412 N.W.2d 132 (Ct. App. 1987). However, in the event of divorce, parties may assign such benefits through a qualified domestic relations order (QDRO), which is a judgment, decree, or order made pursuant to a state domestic relations law that authorizes payment of retirement benefits to a former spouse in order to satisfy child support, alimony, or marital property obligations. See I.R.C. § 414(p)(1).


author: SCHUDSON, J.

text:
    Lesley Thomas, n/k/a Lesley Coulter, Plaintiff-Appellant,  v. Michael J. Bickler, General Casualty Company of Wisconsin, Valley Forge Insurance Company, Defendants-Third-Party Plaintiffs, Oconomowoc Lake Club, Defendant-Third-Party Plaintiff-Respondent, Primecare Health Plan, Inc., Defendant, v. Bartolotta Fireworks Company, General Star Indemnity Company, Third-Party Defendants-Respondents, Village of Oconomowoc Lake, Wausau Underwriters Insurance Company, Third-Party Defendants. Melissa Schmidt, Plaintiff, Humana Employers Health Insurance Co., Involuntary-Plaintiff, v. Michael J. Bickler, General Casualty Company of Wisconsin, Oconomowoc Lake Club, Defendants, Valley Forge Insurance Company, Defendant-Third-Party Plaintiff, v. Bartolotta Fireworks Company, General Star Indemnity Company, Village of Oconomowoc Lake, Wausau Underwriters Insurance Company, Third-Party Defendants.
    Court of Appeals

      No. 01-2006.

      Submitted on briefs June 5, 2002.

    Decided October 1, 2002.

    2002 WI App 268
    (Also reported in 654 N.W.2d 248.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James J. Murphy and Keith R. Stachowiak of Murphy, Gillick, Wicht & Pracht-hauser, of Milwaukee.
    On behalf of the defendant-third-party plaintiff-respondent Oconomowoc Lake Club and third-party defendant respondent Bartolotta Fireworks Company, the cause was submitted on the joint brief of Kevin A. Christensen of Leib & Katt, S.C., of Milwaukee, for Oconomowoc Lake Club, and Phillip C. Theesfeld, of Baxter & OMeara, S.C., of Milwaukee, for Bartolotta Fireworks Company.
    Amicus Curiae brief was filed by Mark L. Thomsen of Cannon & Dunphy, S.C., of Brookfield, for the Wisconsin Academy of Trial Lawyers.
    Before Fine, Schudson and Curley, JJ.

       Petition to review denied 12-10-02.

   SCHUDSON, J.

¶ 1. Lesley Thomas (n/k/a Lesley Coulter) appeals from the circuit court judgment, following a jury trial in her negligence action. She contends that the circuit court erred in concluding that Oconomowoc Lake Club and Bartolotta Fireworks Company were not jointly and severally liable for her damages. She argues that because she was free of any negligence, the 1995 amendment to the comparative negligence statute, Wis. Stat. § 895.045(1) (1999-2000), modifying joint and several liability, does not apply. We disagree and, therefore, affirm.

I. BACKGROUND

¶ 2. The relevant facts are undisputed. On July 4, 1998, Thomas, while watching a fireworks display, was seriously injured when she was struck by an errant shell after a rack used to launch the fireworks tipped over. She sued the Oconomowoc Lake Cluh, Bartolotta Fireworks, and the Village of Oconomowoc Lake. The defendants stipulated that Thomas was not negligent.

¶ 3. The jury awarded damages of $2,808,008.91, apportioning the causal negligence among the defendants: Oconomowoc Lake Club — 50%; Bartolotta Fireworks Company — 19%; and the Village of Oconomowoc Lake — 31%. The case against the Village was later dismissed; only the recoveries against the Oconomowoc Lake Club and Bartolotta are at issue in this appeal.

¶ 4. In motions after verdict, Thomas argued that because she was free of any negligence, the amendment to Wis. Stat. § 895.045, modifying joint and several liability, did not apply to her case. The circuit court disagreed. Analyzing the amended portion of the statute, the circuit court quoted the last three sentences of § 895.045(1) and then concluded:

There is nothing in these portions of the statute which references a non-negligent plaintiff and the title of the [statutory] section is not part of the statute. [Wis. Stat. § 990.001(6)]. The statute appears clear and unambiguous and needs no interpretation through extrinsic material.... [I]t appears that a tortfeasor who is less than 51% negligent cannot be held jointly and severally liable .... [And] it appears that the intent of the legislature was to equitably apportion negligence between or among joint tortfeasors.

Thus, consistent with its analysis, the circuit court entered judgment against the Oconomdwoc Lake Club for 50% of the damages award and against Bartolotta for 19% of the award.

II. ANALYSIS

¶ 5. Thomas argues that the legislature's 1995 amendment to Wis. Stat. § 895.045 does not apply to her case because she was not negligent. She contends that the final three sentences of the statute must be read in context with the entire statute that, as measured by its title and first sentence, apparently refers to circumstances involving plaintiffs who are contributo-rily negligent. Accordingly, she maintains that the amended portion of the statute does not apply "to a plaintiff who is free from all negligence."

¶ 6. Thomas offers an intriguing theory. She maintains that because the common law distinguishes plaintiffs who are free from negligence from those who are not, see, e.g., Miller v. Chicago, St. Paul, Minneapolis & Omaha Ry., 135 Wis. 247, 249, 115 N.W. 794 (1908), and because statutes in derogation of the common law must be strictly construed so as not to alter the common law unless such legislative intent is clear beyond a reasonable doubt, see, e.g., Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d 56, 74, 307 N.W.2d 256 (1981), and because the amendment to Wis. Stat. § 895.045 cannot be construed to alter the common law, her undisputed lack of any contributory negligence carries her beyond the statute's grasp. And Thomas asserts that the supreme court's recent declarations in Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, 244 Wis. 2d 758, 628 N.W.2d 833, and Matthies v. Positive Safety Manufacturing Co., 2001 WI 82, 244 Wis. 2d 720, 628 N.W.2d 842, which might appear to extend the statute to her case, were dicta and, therefore, do not control.

¶ 7. We conclude that Thomas' theory is refuted by the clear and unambiguous words of Wis. Stat. § 895.045(1). Further, any lingering doubt is erased by both the statute's legislative history and by the supreme court's comments in Fuchsgruber and Matthies.

¶ 8. Whether Wis. Stat. § 895.045(1) applies in circumstances where a plaintiff was not contributorily negligent is an issue requiring statutory interpretation and application, thus presenting a question of law subject to our de novo review. Wisconsin Cent. Ltd. v. DOR, 2000 WI App 14, ¶ 9, 232 Wis. 2d 323, 606 N.W.2d 226, review granted, 2000 WI 36, 234 Wis. 2d 175, 612 N.W.2d 732 (Wis. Mar. 20, 2000) (No. 99-0194). When interpreting a clear and unambiguous statute, we need not look beyond the statutory language to ascertain its. meaning; we may, however, construe such a statute "if a literal application would lead to an absurd or unreasonable result," Coca-Cola Bottling Co. of Wis. v. La Follette, 106 Wis. 2d 162, 170, 316 N.W.2d 129 (Ct. App. 1982), and we also may refer to legislative history for further confirmation of our interpretation, see Seider v. O'Connell, 2000 WI 76, ¶ 52, 236 Wis. 2d 211, 612 N.W.2d 659.

¶ 9. Thomas contends that under the common law, plaintiffs who were not contributorily negligent could recover all of their damages from any and all liable defendants irrespective of the defendants' assessed causal negligence. Citing Brown v. Haertel, 210 Wis. 354, 359, 246 N.W. 691 (Rehearing 1933), and Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 535-36, 252 N.W. 721 (1934), she asserts that the case law enunciated that Wis. Stat. § 331.045, the predecessor to Wis. Stat. § 895.045, "did not effect [sic] or alter the common law in the case of plaintiffs who were entirely free of any negligence." We disagree.

¶ 10. Although certain passages from these cases at first might seem to offer some tangential support for Thomas' argument, the cases are not only distinguishable, but also inapplicable in light of the statutory modification of the common-law doctrine of joint and several liability. First, both Brown and Walker concerned the right of one defendant to obtain contribution from another; hence, the courts were faced with issues not presented here. Second, because comparative negligence law, in general, and the doctrine of joint and several liability, in particular, are now controlled by statute, not common law, Thomas' argument has lost the common-law foundation on which it once might have been built. See Fuchsgruber, 2001 WI 81 at ¶ 19; see also Matthies, 2001 WI 82 at ¶ 9.

¶ 11. At common law, a plaintiffs contributory negligence, of any amount, served as an absolute defense and barred a plaintiffs recovery of any damages. See, e.g., Brewster v. Ludtke, 211 Wis. 344, 346, 247 N.W. 449 (1933); Crane v. Weber, 211 Wis. 294, 296, 247 N.W. 882 (1933) ("The collision occurred before enactment by the legislature of the comparative negligence statute so that contributory negligence is an absolute defense to the action.") Indeed, the Wisconsin Legislature, recognizing this harsh effect, departed from the common law by enacting Wis. Stat. § 331.045, which, for the first time, allowed a plaintiff to recover damages in situations in which the plaintiffs negligence was "not as great as the negligence of the person against whom recovery [was] sought." See Wis. Stat. § 331.045.

¶ 12. In 1971, the legislature revised the statute by substituting the words "greater than" for "as great as," thus modifying the comparative negligence standard to permit recovery when a plaintiffs negligence was not "greater than" the negligence of the person against whom recovery was sought. See Laws of 1971, ch. 47. And in 1995 the legislature amended the statute by: (1) codifying the supreme court's interpretation that in negligence actions against multiple defendants, the plaintiffs negligence is compared against the separate rather than the combined negligence of the defendants for purposes of determining liability; and (2) modifying joint and several liability. See 1995 Wis. Act 17, § 1; Fuchsgruber, 2001WI81 at ¶ 13; see also James E End, Comment, The Open and Obvious Danger Doctrine: Where Does It Belong in Our Comparative Negligence Regime?, 84 Marq. L. Rev. 445, 448 (2000); see also Wis JI — Civil 1007.

¶ 13. Thus, for many years under the common law, and continuing until the 1995 amendment of Wis. Stat. § 895.045, joint and several liability applied as long as the plaintiffs negligence did not exceed that of the individual defendant. See Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Constr. Corp., 96 Wis. 2d 314, 330-32, 291 N.W.2d 825 (1980). As the supreme court explained, commenting on the interplay between the common-law doctrine and the statute before its most recent amendment:

Shortly after our legislature enacted the comparative negligence statute, this court held that the common law doctrine of joint and several liability retained its vitality under the statute [Wis. Stat. § 895.045]:
"Sec.. .. [895.045] does not change the common-law rule as to the extent to which every joint tortfeasor, who is liable at all, is liable for such damage as the injured person is now entitled to recover. At common law the injured person could not recover at all, if. there was some negligence on his part which contributed to his injury. But, if he was entirely free from negligence, every one of the several tortfeasors, whose negligence was a cause of the injury, was liable for all of the resulting damage even though the negligence attributable to one of them may have been insignificant in proportion to the negligence of the others .... [T]here exists now, by virtue of the statute, a right to recover, subject, however, to the limitation prescribed by the statute, but the damage[s] allowed shall be diminished in proportion to the negligence attributable to the person recovering. That is the only limitation prescribed in respect to the amount recoverable. Otherwise, there is no provision which effects any change in the common-law rule that all tortfeasors who are liable at all, are liable to the injured person for the entire amount now recoverable by him.

Id. at 331-32 (quoting Walker, 214 Wis. at 535-36).

¶ 14. The 1995 amendment to Wis. Stat. § 895.045, however, accomplished precisely what the pre-amended statute had not — it modified the common-law doctrine of joint and several liability. Under Wis. Stat. § 895.045(1), a joint tortfeasor cannot be jointly and severally liable unless he or she is found to be 51% or more causally negligent. And, contrary to Thomas' contention, the statute applies in instances where the plaintiff has no contributory negligence.

¶ 15. The amendment to Wis. Stat. § 895.045 is but the latest reflection of long-standing concerns about the inequities associated with the distribution of liability between and among joint tortfeasors. Cf. Bielski v. Schulze, 16 Wis. 2d 1, 7, 114 N.W.2d 105 (1962) (in which the supreme court abolished the common-law rule of equal distribution of contribution among joint tortfeasors in favor of pro rata allocation of contribution). While the courts have repeatedly resisted the temptation to modify joint and several liability to conform to the law of contribution articulated in Biel-ski, see Chille v. Howell, 34 Wis. 2d 491, 500,149 N.W.2d 600 (1967) (joint and several liability imposed on driver whose causal negligence was twenty percent); Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis. 2d 321, 331-32, 227 N.W.2d 444 (1975) (joint and several liability imposed on defendant whose liability was thirty percent), the Wisconsin Legislature has chosen otherwise, thus preventing the unfairness that would come to minimally negligent defendants who otherwise would bear the burden of principally culpable but judgment-proof defendants.

¶ 16. Had the legislature intended to limit the application of the amendment, as Thomas would wish, it could have said so; it did not. In fact, the drafting records to 1995 Wis. Act 17, § 1, indicate that the legislature considered and rejected a broader scope of liability for joint tortfeasors. The records show that the Committee on Judiciary offered Assembly Substitute Amendment 1 to 1995 Senate Bill 11, which stated:

Except as provided in this subsection and subs. (2) and (3), the liability of each person found to be causally negligent whose percentage of causal negligence is less than 15% is limited to the percentage of total causal negligence attributed to that person. Any person whose percentage of causal negligence is less than 15% shall be jointly and severally liable for the damages allowed if the person's causal negligence is at least twice that of the causal negligence of the person recovering or the causal negligence of the person recovering is 0%, and only to the extent of the limits of any applicable insurance of the person whose percentage of causal negligence is less than 15%.

1995 S.B. 11 (quoting A.S.A. 1) (emphasis added). On April 6, 1995, after a motion to revive, Assembly Substitute Amendment 1 was voted down. Clearly, the history of this proposed amendment establishes that the legislature considered and rejected the concept of joint and several liability that Thomas seeks to advance.

¶ 17. Moreover, in its two cases addressing the amendment to the statute, the supreme court has neither qualified the legislative statements nor suggested that the statute applies only if a plaintiff is contributorily negligent. See Fuchsgruber, 2001 WI 81; Matthies, 2001 WI 82. To the contrary, the court has intimated that the statute applies in negligence actions without limitation.

¶ 18. In Fuchsgruber, the supreme court considered whether the comparative negligence statute applied to cases involving strict product liability actions. Fuchsgruber, 2001 WI 81 at ¶ 2. The court concluded that the statute did not apply because "[sjtrict liability for injuries caused by defective and unreasonably dangerous products ... is liability in tort, not liability for negligence." Id. The court explained that

strict product liability is not negligence; the concept of contributory negligence is simply borrowed from negligence law and transplanted in product liability theory for purposes of making the defense available to sellers. Neither the availability of this defense, nor the availability of contribution rights among defendants, means that strict product liability is actually negligence for all intents and purposes, including application of the comparative negligence statute.

Id. at ¶ 27. The court stated, without limitation, that one of the two "apparent purposes" of the amendment was "the modification of joint and several liability." Id. at ¶ 13. The court explained:

The 1995 amendment had two apparent purposes: 1) the codification of the pre-existing requirement in negligence actions that, where there are multiple defendants, a plaintiffs negligence is compared against the separate rather than the combined negligence of the defendants for purposes of determining liability; and 2) the modification of joint and several liability. As to the latter, under the new statute, only a defendant found 51 percent or more causally negligent can he jointly and severally liable for a plaintiffs total damages (adjusted for any contributory negligence). The liability of a defendant whose causal negligence is less than 51 percent is limited to the percentage of causal negligence attributed to that defendant.

Id. (emphasis added; footnote omitted).

¶ 19. In Matthies, the court addressed whether the retroactive application of the 1995 amendment to the comparative negligence statute unconstitutionally limited a plaintiffs right to recover joint and several damages from one of several negligent parties, when the injury occurred prior to, but the lawsuit was filed after, the effective date of the amendment. Matthies, 2001 WI 82 at ¶ 25. The court held that Wis. Stat. § 895.045(1) could not be applied retroactively to deprive the plaintiff of vested rights in his negligence action. Id. at ¶ 48. Reaching this conclusion, the court observed that "[t]he legislature's amendment of Wis. Stat. § 895.045 . . . significantly changed joint and several liability [law in Wisconsin]." Id. at ¶ 14. Articulating the breadth of this change, the court explained by example:

Assuming that the plaintiff is not negligent, that plaintiff can still recover all of his or her damages from one of two or more joint tortfeasors so long as one is found to be 51% or more causally negligent. But a plaintiff can no longer recover all of his or her damages from that same tortfeasor if that tortfeasor is found to be less than 51% causally negligent.

Id. (emphases added). The court concluded that "1995 Wisconsin Act 17, in amending § 895.045, thus limits a plaintiffs recovery from that tortfeasor found 51% or less causally negligent to that portion of the total negligence that is attributed to that tortfeasor." Id. Although this may be dictum, it nevertheless illustrates how the supreme court anticipates the statute would be applied in cases like the instant one.

III. CONCLUSION

¶ 20. Wisconsin Stat. § 895.045(1) is clear on its face: only a tortfeasor found to be 51% or more causally negligent shall be jointly and severally liable for a plaintiffs total damages. Here, therefore, based on the jury's apportionment of negligence, the circuit court correctly concluded that neither Oconomowoc Lake Club nor Bartolotta Fireworks Company could be held jointly or severally liable for Thomas' damages, and properly entered judgment against them for their respective 50% and 19% portions of the award.

By the Court. — Judgment affirmed.

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

       The legislature amended Wis. Stat. § 895.045 (1993-94), as follows:
      Section 1. 895.045 of the statutes is renumbered 895.045 (1) and amended to read:
      895.045 (1) (title) Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.

      1995 Wis. Act 17, § 1 (italics indicating amended language added; stricken language omitted).

       Black's Law Dictionaey defines common law:
      As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from ... the judgments and decrees of the courts .... In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments.
      Black's Law Dictionaey 276 (6th ed. 1990).

       Laws of 1931, ch. 242, § 1, created Wis. Stat. § 331.045, which provided in pertinent part:
      Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount'of negligence attributable to the person recovering.

        In Bielski v. Schultze, 16 Wis. 2d 1, 114 N.W.2d 105 (1962), the supreme court, addressing the doctrine of contribution, observed:
      If the doctrine is to do equity, there is no reason in logic or in natural justice why the shares of common liability of joint tort-feasors should not he translated into the percentage of the causal negligence which contributed to the injury. This is merely a refinement of the equitable principle. It is difficult to justify, either on a layman's sense of justice or on natural justice, why a joint tort-feasor who is five percent causally negligent should only recover 50% of the amount he paid to the plaintiff from a co-tort-feasor who is 95% causally negligent, and conversely why the defendant who is found five percent causally negligent should be required to pay 50% of the loss by way of reimbursement to the co-tort-feasor who is 95% negligent.

        Id. at 9.

       Understandably, Thomas maintains that applying Wis. Stat. § 895.045(1) to a plaintiff who is free of any negligence would also be unfair. She argues, therefore, that, as a matter of equity, the statute should not apply. We are not convinced.
      Were we to abide by Thomas' interpretation, it would, in some instances, lead to unreasonable results. See State v. West, 181 Wis. 2d 792, 796, 512 N.W.2d 207 (Ct. App. 1993) (Basic rules of statutory construction dictate that statutes must be interpreted to avoid unreasonable results.).
      Assume, for example, a jury found Plaintiff 1% negligent, Defendant A 1% negligent, and Defendant B 98% negligent. Assume also that Defendant B is immune or judgment proof.. Under Wis. Stat. § 895.045(1), Defendant A is responsible for 1% of plaintiffs damages.
      But assume the jury finds Plaintiff 0% negligent, Defendant A 1% negligent, and Defendant B 99% negligent. Under Thomas' interpretation of Wis. Stat. § 895.045(1), Defendant A would be responsible for 100% of plaintiffs damages. Clearly, this is would be an unreasonable result.
      Under any of several formulations of joint-and-several liability law, including Wisconsin's current statutory scheme, absolute equity will not be possible in all cases. The legislature, however, was entitled to balance the scales in the manner it concluded would most often provide relative fairness to plaintiffs and defendants. See Wis. Const, art. W § L


author: PETERSON, J.

text:
    Richard Bender, Arvilla Bender, FB & Company, LLP and Dale Howard, Petitioners-Respondents-Cross-Appellants, v. Town of Kronenwetter, Respondent-Appellant-Cross-Respondent.
    Court of Appeals

      No. 02-0403.

      Submitted on briefs August 23, 2002.

    Decided October 1, 2002.

    2002 WI App 284
    (Also reported in 654 N.W.2d 57.)

      On behalf of the respondent-appellant-cross-respondent, the cause was submitted on the briefs of Russell W. Wilson and Julie M. Falk of Ruder, Ware & Michler, Wausau.
    On behalf of the petitioners-respondents-cross-appellants, the cause was submitted on the briefs of Gary R. McCartan oí McCartan Law Firm, S.C., Wau-sau.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. The town of Kronenwetter appeals a decision that (1) the town's litigation costs could not be included in a special assessment levy; and (2) the special assessment of Dale Howard's property is reasonable as it pertains to water, but not as it pertains to sewer. The town argues that the litigation costs should be included in the special assessment and that Howard's property was reasonably assessed for both sewer and water.

¶ 2. Richard Bender, Arvilla Bender, F.B. & Company, LLR and Dale Howard ("the Bender Group") cross-appeal the circuit court's order that Dale Howard's property consists of two parcels for special assessment purposes, the order denying the Bender Group's petition to amend their notice of appeal, and the order granting the town's summary judgment motion on all contractual and equitable theories of law. The Bender Group argues that (1) they are entitled to a jury trial on claims of fraud and breach of contract; (2) the town is bound by an oral contract between the Bender Group and the town's engineer; (3) their fraud claim should not have been dismissed; (4) Howard's parcel was exempt from the special assessment as "eligible farm land;" (5) the Bender Group has a right to amend their notice of appeal to the circuit court; (6) the town is estopped from denying the oral contract; and (7) the special assessment is unreasonable. We affirm the circuit court's orders in all respects except as regards the Howard property assessment, which we conclude is "eligible farmland."

BACKGROUND

¶ 3. This case focuses on an extension of sewer and water lines along a county highway beside the Bender Group's properties. When the extension was first discussed in October 1998, the Bender Group indicated to the town board it would not be interested in the extension if the town would impose a special assessment against its properties.

¶ 4. At a town board meeting on May 20,1999, the town decided that a plan for sewer and water was needed to service two new subdivisions. The board approved the extension on July 12, 1999, deciding to install it along County Highway X. The board agreed to a special assessment based on the same methodology it had used on a previous project.

¶ 5. On August 3, 1999, the town board contracted with Schneider Consultants, Inc., to install the sewer and water extension. The board authorized Richard Schneider, the town engineer, to engage in discussions with Felix Bender regarding an easement on his property. However, the board decided not to offer any compensation in exchange for easements.

¶ 6. On August 23, 1999, the town board approved a resolution to install sewer and water along County Highway X from County Highway XX to Pleasant Drive. Richard Schneider indicated to the board that the Bender Group would voluntarily convey an easement. Schneider did not inform the board of any plan to defer the special assessments in exchange for the easements. However, the Bender Group maintains that Schneider promised Richard Bender an exemption from the special assessment. Additionally, Felix Bender claims Schneider told him that the Bender Group would not be charged for sewer and water until they tapped into it. The Bender Group never confirmed any of this with the town board.

¶ 7.- On September 28, 1999, the town had a public hearing on the proposed assessments. It was at this time that the Bender Group first raised its allegations that they were to be exempt from the assessment. As a result of this and other complaints, the board voted on October 6, 1999, to cancel the project. However, on October 25, 1999, the board reversed its position and decided to go ahead with the project. Another public hearing was held on November 29, 1999, at which time the Bender Group presented arguments attacking the reasonableness of the special assessment. Specifically, they argued that landowners who did not want sewer and water would have to pay for it, while only one landowner would benefit. They made no mention at this time of Schneider's promise of an exemption or deferral of the assessment.

¶ 8. The town adopted a resolution on December 6, 1999, to go ahead with the project and approved the engineer's report, finding the special assessments to be reasonable. The town board never approved any agreement between Schneider and the Bender Group regarding an exemption or deferral.

¶ 9. The Bender Group appealed to the circuit court, requesting a jury trial on its claims of fraud and breach of contract. It also argued that the Howard property was exempt from the assessment because it was "eligible farmland," that the Benders were exempt by contract, and that the special assessment was unreasonable.

¶ 10. On May 18, 2000, the circuit court denied the Bender Group's motion for a jury trial. Then, on September 20, 2000, the court granted partial summary judgment to the town and dismissed the Bender Group's allegations regarding breach of contract and fraud, holding that the town was not bound by Schneider's alleged agreement to defer or exempt the special assessment.

¶ 11. On January 3, 2001, the circuit court held that the Howard property consisted of two parcels, one of which did not quality as "eligible farmland," and that the Benders would not be allowed to amend their notice of appeal. The court granted the town's motion for summary judgment on all contractual and equitable theories.

¶ 12. On September 14, 2001, the circuit court ordered that the town's litigation costs were not reasonably related to the sewer and water improvement. Therefore, these costs could not be added to the special assessment. Additionally, the court held that the town's decision to assess only those properties with a direct benefit was reasonable. Finally, the court held that the assessment of the Howard property for water was reasonable, while the assessment for sewer was not.

DISCUSSION

I. Cost of Litigation

¶ 13. The first issue is whether the town is entitled to add its legal expenses associated with this litigation to the special assessment levy, which it argues is permitted by Wis. Stat. § 66.60(5). The interpretation of a statute and its application to a set of facts are questions of law we review independently. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999). The purpose of statutory interpretation is to discern the intent of the legislature. Id. at 365.

¶ 14. Wisconsin Stat. § 66.60(l)(a) authorizes a municipality to levy and collect special assessments "for special benefits conferred upon such property by any municipal work or improvement. . . ." Additionally, the municipality "may provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of such special assessments." Id. Thus, only the cost of a "work or improvement" conferring a "special benefit" may be assessed against a property.

¶ 15. Wisconsin Stat. § 66.60(5) allows a municipality to add to the special assessment "the cost of any architectural, engineering and legal services, and any other item of direct or indirect cost which may reasonably be attributed to the proposed work or improvement." The town claims that the use of the word "any" gives the statute a broad interpretation. However, the Bender Group argues a narrower construction because of the statute's requirement that the cost must be reasonably attributed to the work or improvement. The Bender Group argues that there is a distinction between litigation costs that are associated with the work or improvement and those associated with an appeal of a special assessment.

¶ 16. As the circuit court noted, although "the use of the terms 'any' and 'indirect' in the statute indicate the broad nature of it. . . the term 'reasonable' provides some limitation [which] prohibits the town from adding its additional costs to the assessment." We agree. The legal expenses the town is seeking to add to the assessment are not reasonably attributed to the work or improvement. They do not aid in its creation or development, but arise after completion of the engineering report and after the municipality has published its final resolution. They are instead attributed to an appeal from the special assessment. While the town would be entitled to legal costs for establishing the project, the statute does not allow for the addition of legal expenses that are speculative and uncertain, and merely the result of a legal challenge. We therefore affirm the circuit court's decision not to allow the inclusion of litigation costs.

II. Right to a Jury Trial

¶ 17. The Bender Group argues that it is entitled to a jury trial. It does not claim that this right stems from the appeal of the special assessment itself, but because it raises issues of fraud and breach of contract. The Wisconsin Constitution guarantees the right to a jury trial. Wis. Const, art. I, §§ 5 and 7. However, this right attaches only to actions at law that were "known to the common law in 1848 . . . ." State v. Ameritech Corp., 185 Wis. 2d 686, 698, 517 N.W.2d 705 (Ct. App. 1994). The right to a jury trial "does not extend to 'equity cases, in which the party has never been held entitled to a jury trial as a matter of right.'" Spensley Feeds v. Livingston Feed & Lumber, 128 Wis. 2d 279, 288, 381 N.W.2d 601 (Ct. App. 1985) (quoting Stilwell v. Kellogg, 14 Wis. 499, 503 (1861)). Whether the Bender Group's constitutional and statutory fight to a jury trial was violated is a question of law that we review independently of the trial court. See Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585, 591, 527 N.W.2d 301 (1995).

¶ 18. Claims for fraud and breach of contract are indeed actions at law, which carry a right to a jury trial. See, e.g, Becker v. Holm, 89 Wis. 86, 90-91, 61 N.W. 307 (1894); Lombard v. Cowham, 34 Wis. 486, 492 (1874). In this case, however, the Bender Group is simply challenging the special assessment. They have not actually filed any claims for fraud or breach of contract requesting monetary damages. Instead, they have asked to have the assessment voided, in part, because of conduct they allege amounts to fraud and breach of contract. They are seeking equitable relief and are therefore not entitled to a jury trial. Consequently, we affirm the circuit court's order denying a jury trial.

III. Oral Contract Between Schneider and the Bender Group

¶ 19. The Bender Group argues that the town is bound by an oral contract entered into with Schneider deferring or exempting them from the assessment. The trial court granted the town's motion for summary judgment on this issue, holding that Schneider had no authority to bind the town to such an agreement.

¶ 20. We review a grant of summary judgment independently, using the same methodology as the circuit court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995). "[I]f a genuine dispute of material fact exists or if the evidence presented is subject to conflicting inferences or factual interpretations, summary judgment must be denied." Hanson v. Prudential Prop. & Cas. Ins. Co., 224 Wis. 2d 356, 362, 591 N.W.2d 619 (Ct. App. 1999).

¶ 21.. The Bender Group cites Wis. Stat. 66.605(1), which states that a town may defer special assessments "on such terms and in such manner as prescribed by its governing body. . . ." (Emphasis added.) They note that Black's Law Dictionary 1183 (6th ed. 1991), defines "prescribe" as "To lay down authoritatively as a guide, direction, or rule; to impose as a peremptory order; to dictate; to point; to direct; to give as a guide, direction, or rule of action; to give law. To direct, define, mark out." The Bender Group then argues that "prescribe" is a broad term that does not specifically require adoption of a formal resolution. Because the town gave Schneider authority to negotiate and draft easements on behalf of the town, the Bender Group argues that he also had the authority to bind the town to any contracts he made. As a result, they argue that summary judgment was inappropriate because a reasonable person could infer from the facts that Schneider was authorized to bargain with the Bender Group regarding the easement.

¶ 22. The town, however, notes that a deferral can only be granted according to statute, and claims that the word "prescribe" in Wis. Stat. § 66.605 is defined as "to write beforehand; to set down as a rule or direction; order." Webster's New World College Dictionary 1065 (3rd ed. 1996). As a result, the town argues that Schneider is unable to bind the town to a deferral because this method of obtaining a deferral was not "prescribed" by the board and is therefore not in compliance with the statute.

¶ 23. We conclude that it is immaterial whether "prescribe" is broadly or narrowly defined or whether the town must formally or informally provide for the manner in which it will authorize others to bind it. Under any interpretation, the Bender Group has failed to show that the town prescribed for Schneider to defer assessments.

¶ 24. The Bender Group also maintains that it is entitled to an exemption. Wisconsin Stat. § 66.605(1) only deals with deferrals, however, and the Bender Group does not cite any authority allowing exemptions. Therefore, because Schneider was not authorized by statute to grant a deferral from the special assessment, the town could not be bound by the oral contract. As a result, we affirm the trial court's grant of the town's motion for summary judgment on this issue.

IV Fraud

¶ 25. When the trial court granted the town's motion for summary judgment, it also dismissed the Bender Group's challenge to the assessment on the basis of fraud. The Bender Group argues that this was error because a reasonable person could conclude that the town board and Schneider had perpetrated a fraud on the Bender Group to obtain the easement. Again, we review a grant of summary judgment independently. M&I First Nat'l Bank, 195 Wis. 2d at 496-97.

¶ 26. The Bender Group points to certain statements made by town board members at the August 3, 1999, meeting that the Bender Group interprets as fraudulent. For example, the Bender Group claims that one town board member said the board should lead the Benders to believe one thing and then would "stick it to them." Further, they claim another member of the board stated that if the Board was ever questioned about any negotiations, it would simply indicate that "nobody ever talked to us about it." The Bender Group claims that these statements indicate the Board's plan to fraudulently obtain the easement.

¶ 27. In order to prove fraud, the Bender Group must show:

First, there must be a knowingly false representation of fact. Second, the representation must be made with intent to defraud and for the purpose of inducing another to act upon it. Third, the other person must rely on the representation and be induced by it to act, causing his or her own injury or damage. The actor's reliance on the representation must be justifiable. Finally, "[t]he party alleging the fraud has the burden of proving the elements by clear and convincing evidence."

Korhumel Steel Corp. v. Wandler, 229 Wis. 2d 395, 403, 600 N.W.2d 592 (Ct. App. 1999) (citations omitted).

¶ 28. The statements the Bender Group cites are taken out of context and are not evidence of fraud. The statement that the board would "stick it to" the Bender Group appears to mean that the Bender Group would be stuck with the assessment along with other property owners in the area. This statement does not show any intent to defraud.

¶ 29. Similarly, the statement that the board could simply say that "nobody ever talked to us about it" is taken out of context. The entire statement was: "What I do like about that is, I mean, you can say, and it's perfectly true, [Schneider doesn't] have the final say. You're just talking options, and it also protects-[Unintelligible]-the allegation that nobody ever talked to us about it." This statement also is inconsistent with fraudulent conduct. It is a statement acknowledging the fact that Schneider can engage in discussions with the Bender Group, but that his discussions would not be "the final say."

¶ 30. The result of the August 3 meeting was that the board decided it would not offer the Bender Group any compensation for an easement. There is no indication, however, that the board intended to obtain the easement by fraud, and therefore no issue of material fact exists that would render summary judgment appropriate.

V. Howard's Parcel

¶ 31. Howard contends that his property, a tree farm, is exempt from the special assessment because it is "eligible farmland" under Wis. Stat. § 66.60(6m). The trial court determined that his 62.6 acres should be treated as two parcels, one 38.7 acres and another 23.9 acres. Because the statute only exempts parcels of thirty-five acres or more, only the 38.7-acre parcel was exempt from the special assessment. Howard argues that his land should be considered one parcel and therefore the entire 62.6 acres should be exempt. We agree.

¶ 32. Statutory interpretation and its application to the facts are questions of law we review independently to discern the intent of the legislature. Reyes, 227 Wis. 2d at 364-65. We first look at the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986).

¶ 33. Wisconsin Stat. 66.60(6m)(a)2 states:

"Eligible farmland" means a parcel of 35 or more acres of contiguous land which is devoted exclusively to agricultural use which during the year preceding the year in which the land is subject to a special assessment under this section produced gross farm profits, as defined in s. 71.58(4), of not less than $6,000 or which, during the 3 years preceding the year in which the land is subject to a special assessment under this section, produced gross farm profits, as defined in s. 71.58(4), of not less than $18,000. (Emphasis added.)

The key issue is the meaning of "á parcel." The trial court defined "parcel" based on Wis. Adm. Code § Tax 18.05, which states a parcel is "land, contained within a single legal description." The town argues that this is the correct definition because a special assessment is in the nature of taxation. Therefore, the statute should be read in conjunction with the taxing code. The Howard property is treated as two separate parcels for tax purposes. Under this definition, the 23.9-acre property is not exempt from the special assessment.

¶ 34. Howard contends, however, that it was error to use the tax code definition of a parcel. In fact, Wis. Stat. § 66.60(6m)(a)2 defines "eligible farmland" as "a parcel of 35 or more acres of contiguous land." It makes no reference to any special meaning of "parcel." Therefore, we should use the plain meaning of the word "parcel," which is "a tract of land." Black's, supra 1137. This suggests that any contiguous portion of land greater than thirty-five acres would constitute "eligible farmland," regardless of the number of parcels into which it might be divided for tax purposes. We agree. The statute's requirement that land be greater than thirty-five acres is not dependent on how land is allocated in a property tax bill. We therefore conclude that Howard's property is one parcel under § 66.60(6m)(a)2.

¶ 35. The town also appeals the circuit court's decision that the Howard property was reasonably assessed as to water, but not as to sewer. However, because we later hold that the Howard property is exempt from the special assessment as "eligible farmland," we need not decide this issue.

VI. Right to Amend Notice of Appeal

¶ 36. The Bender Group argues that they had a statutory right to amend their notice of appeal to allege that Schneider promised a deferral of the special assessment. Initially, the Bender Group's notice of appeal asserted that Schneider promised them an exemption from the special assessment in exchange for the easement. After the circuit court held that the town had no authority to exempt property owners from special assessments, the Bender Group sought to amend their notice to allege that Schneider promised deferments.

¶ 37. The trial court did not decide this issue, however, because it held that Schneider, as town engineer, lacked the authority to bind the town to an exemption or deferral. Because we note in sections III and VII of this opinion that Schneider did not have the authority to bind the town, we also need not address this issue.

VII. Estoppel from Denying the Oral Contract

¶ 38. The Bender Group argues that the town should be estopped from denying the oral contract between Schneider and the Bender Group for a deferral or exemption of the special assessment. They claim that the court should have balanced the injustice to the Bender Group by not applying the estoppel doctrine, and the harm to the public interest by applying the doctrine. See Beane v. City of Sturgeon Bay, 112 Wis. 2d 609, 620-21, 334 N.W.2d 235 (1983). We review a grant of summary judgment independently. M&I First Nat'l Bank, 195 Wis. 2d at 496-97.

¶ 39. It is generally held that a municipality may not be estopped from denying the validity of a contract which is not within the power of the municipality to make. Village of McFarland v. Town Of Dunn, 82 Wis. 2d 469, 474, 263 N.W.2d 167 (1978). Furthermore, "estoppel cannot make enforceable a municipal contract which is not executed in compliance with the mandatory or prohibitive conditions expressly prescribed by statute ...." Id.

¶ 40. A special assessment can only be levied by a resolution of the town board, and can only be deferred by the governing body. Wis. Stat. § 66.60. As we have already recognized, because Schneider is merely the town engineer, he is not authorized to defer the special assessment. Thus, any claimed contract was either not within the town's power or was not executed as required by statute.

¶ 41. Additionally, estoppel does not apply against a municipality that is exercising its police powers. City of Milwaukee v. Leavitt, 31 Wis. 2d 72, 76, 142 N.W.2d 169 (1966). Here, the special assessment was levied by the town pursuant to its police powers for the safety and welfare of its citizens. As a result, an unauthorized oral contract between Schneider and the Bender Group cannot be the basis to estop the town from denying the contract.

VIII. Reasonableness of the Special Assessment

¶ 42. Finally, the Bender Group contends that the entire special assessment is unreasonable in its methodology, allocation and result. The trial court held that the town's decision to assess only those property owners with a direct benefit was reasonable, and we agree.

¶ 43. Wisconsin Stat. § 66.60(1)(b) requires special assessments made under a municipality's police power to be made upon a "reasonable basis." Whether an assessment fulfills the legal standard of reasonableness is a question of law, which we review independently. Lac La Belle Golf Club v. Village of Lac La Belle, 187 Wis. 2d 274, 281-82, 522 N.W.2d 277 (Ct. App. 1994). However, we review any factual determinations made by the trial court in the course of reaching its reasonableness determination under the clearly erroneous standard. Wis. Stat. § 805.17(2); Lac La Bell Golf Club, 187 Wis. 2d at 281-82.

¶ 44. The Bender Group argues that the assessment was unreasonable because some property owners with "direct access" will incur more expense and more difficulty connecting to the sewer than those who have "indirect access." The Bender Group contends that even though they are deemed to have "direct access," they would have to construct internal streets, sewer and water systems, and roadways. As a result, they argue that the distinction between "direct" and "indirect" access is illusory, arbitrary and capricious and therefore unreasonable.

¶ 45. If a special assessment is uniformly applied, it is deemed to be reasonable. Id. at 285-86. Here, the record demonstrates that the assessment was done according to a consistent, accepted method (the acreage methodology). In fact, this method was used in prior sewer and water projects in the town. Additionally, the town applied the assessment according to the location of each property and whether it would be directly benefited. The Benders can, if they wish, directly and immediately connect to sewer and water, while those with "indirect" access cannot. We conclude the assessment was imposed on a reasonable basis.

CONCLUSION

¶ 46. We reverse the trial court on the issue of the Howard property, which we hold to be "eligible farmland" and therefore exempt from the special assessment. In all other respects, we affirm the trial court.

By the Court.-Judgment and orders affirmed in part and reversed in part. No costs awarded on appeal.

       WISCONSIN Stat. § 66.60(5) (1997-98). All references to the Wisconsin Statutes are to the 1997-1998 version unless otherwise noted. This section has been renumbered as § 66.0703(2) (1999-2000). All 1997-98 statutes cited in this opinion have been amended or renumbered by 1999 Act 150 §§ 525-537, eff. Jan. 1, 2001. Their substance has not changed as they are applied in this opinion.

       Renumbered as Wis. Stat. § 66.0703(l)(a) (1999-2000).

       Renumbered and amended as Wis. Stat. § 66.0715(2) (1999-2000). Wisconsin Stat. § 66.605 (1997-98) states in part:
      Notwithstanding any other statute, the due date of any special assessment levied against property abutting on or benefited by a public improvement may be deferred on such terms and in such manner as prescribed by its governing body while no use of the improvement is made in connection with the property.

       Renumbered as Wis. Stat. § 66.0703(l)(b) (1999-2000).

       According to Schneider's affidavit, properties having indirect access "(a) cannot connect directly and immediately by means of laterals to the assessed project because those properties do not have frontage on the assessed water mains and sewer interceptors, but (b) could eventually connect after future development occurs by means of construction of extensions to the water mains and sewer interceptors."


text:
    State of Wisconsin, Plaintiff-Respondent, v. Darin W Baratka, Defendant-Appellant.

    Court of Appeals

      No 02-0770.

      Submitted on briefs September 5, 2002.

    Decided October 1, 2002.

    2002 WI App 288
    (Also reported in 654 N.W.2d 875.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael C. Witt of Monogue & Witt, S.C., Jefferson.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Patrick G. Schilling, Phillips.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 2-19-03.

   PETERSON, J.

¶ 1. Darin W. Baratka appeals from an order revoking his driver's license because he unlawfully refused to submit to a chemical test, in violation of Wis. Stat. § 343.305(9). Baratka presents two arguments on appeal: (1) the trial court erred by determining that the State's failure to respond to requests for admission was excusable neglect; and (2) Baratka was not properly informed of his rights regarding the chemical testing, and he did not refuse this testing. We disagree and accordingly affirm the order.

FACTS

¶ 2. On June 14, 2001, Baratka was stopped by an officer from the Phillips Police Department for alleged traffic violations. The officer noticed physical traits and behavior indicating that Baratka might be under the influence of an intoxicant. When the officer asked Baratka to perform field sobriety tests, Baratka produced an "assertion of rights" card and asked for a lawyer. The officer responded that he had a right to conduct these tests under the implied consent law, as well as to take samples of Baratka's blood, breath or urine. After Baratka continued to assert his right to decline the field tests, he was placed under arrest for operating a motor vehicle while under the influence of an intoxicant in violation of Wis. Stat. § 346.63(l)(a).

¶ 3. At the sheriffs department, the officer read Baratka the Informing the Accused form. Baratka stated that he did not understand and requested an attorney. The officer stated that Baratka did not have a right to an attorney at that stage. The officer reread the form and Baratka again stated that he did not understand and wanted to speak to an attorney. The officer then marked on the form that Baratka refused chemical testing.

¶ 4. On July 12, 2001, Baratka requested a hearing and submitted a request for admissions pursuant to Wis. Stat. § 804.11. When the State did not respond, Baratka moved for summary judgment. The State then responded to the request for admissions, denying each of them. The State also filed a motion to withdraw its admissions. The prosecutor filed an affidavit stating that he thought he had obtained an extension of time for answering the requests. Baratka's attorneys denied this.

¶ 5. At a hearing held on November 21, the court allowed the State to withdraw the admissions, finding excusable neglect. The court then extended the time to respond to the requests to the day when the State responded.

¶ 6. A refusal hearing was held on March 11, 2002. The court found that Baratka was properly informed of his rights, that the information regarding the chemical testing was correct and that there was no evidence that Baratka actually had difficulty understanding the Informing the Accused form. Therefore, the court found that Baratka had refused chemical testing and revoked his operating privileges. Baratka appeals.

STANDARD OF REVIEW

¶ 7. Application of the implied consent statute to an undisputed set of facts is a question of law that we review independently. Similarly, reconciling constitutional considerations of due process and equal protection with the requirements of the implied consent statute involve questions of law, which we also review independently. State v. Piddington, 2001 WI 24, ¶ 13, 241 Wis. 2d 754, 623 N.W.2d 528. To the extent the circuit court's decision involves findings of evidentiary or historical facts, those findings will not be overturned unless they are clearly erroneous. State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996).

ANALYSIS

I. Summary Judgment

¶ 8. Baratka argues that the trial court erred in finding that the State's failure to respond to his request for admissions constituted excusable neglect. As a result, Baratka claims that his motion for summary judgment should have been granted.

¶ 9. This court recently determined that summary judgment does not apply in a traffic forfeiture prosecution under Wis. Stat. ch. 345. See State v. Schneck, 2002 WI App 239, 652 Wis. 2d 434, 652 N.W.2d 434. In that case, Schneck was issued a citation for knowingly transporting alcohol in a motor vehicle as an underage person pursuant to Wis. Stat. § 346.93(1). He pled not guilty and filed a motion for summary judgment.

¶ 10. We explained that in order to award summary judgment, the court must "determine whether the plaintiffs complaint states a claim and, if so, whether the defendant's answer has joined material issues of fact or law." Id. at ¶ 9. Wisconsin Stat. ch. 345 proceedings do not conform to this procedure. While a citation stands as a complaint, nothing in ch. 345 requires a responsive pleading that would allow a court to decide if there is a material issue of fact or law. Id. at ¶ 10. Chapter 345 requires only pleas of guilty, not guilty or no contest. These are not the equivalent of an answer in a civil action. Id. Additionally, summary judgment is not applicable because civil procedure terms such as "summons," "scheduling order," "claim," "counterclaim" and "third-party claim" are foreign to traffic forfeiture pleadings and procedure. Id. at ¶ 11. Thus, we held summary judgment is not available in ch. 345 cases. Id. at ¶ 16.

¶ 11. The same reasoning applies to a refusal proceeding under Wis. Stat. ch. 343. As in Wis. Stat. ch. 345 proceedings, ch. 343 does not require responsive pleadings that would allow the court to determine if there is a material issue of fact or law. Additionally, the same civil procedure terms that are absent in ch. 345 are likewise absent in ch. 343. As a result, summary judgment is inapplicable in ch. 343 hearings. Because we hold that summary judgment is not available in this case, it is not necessary to address Baratka's argument about the request for admission.

II. Refusal to Submit to Chemical Testing

¶ 12. Baratka claims that he was not properly informed of his choices and was therefore unable to understand his rights regarding chemical testing. In order for Baratka to prove he was not adequately informed, he must show:

1. Has the law enforcement officer not met, or exceeded his or her duty under §§ 343.305(4) and 343.305(4m) to provide information to the accused driver;
2. Is the lack or oversupply of information misleading; and
3. Has the failure to properly inform the driver affected his or her ability to make the choice about chemical testing!.]

County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995).

¶ 13. The officer incorrectly stated that he had a right under the implied consent law to perform field sobriety tests. As a result, Baratka argues that this misleading statement interfered with his ability to understand his rights. Therefore, he argues he was unable to make an informed choice and did not know that his assertion of rights would amount to a refusal.

¶ 14. While the officer was mistaken regarding the right to require Baratka to perform field tests, there was no misinformation regarding the request for chemical testing. The officer's right to request the test was properly stated when the officer read the Informing the Accused form. In fact, Baratka does not identify how any misinformation about the field tests affected his understanding of the chemical testing.

¶ 15. Additionally, Baratka argues that he never verbally or physically refused testing. However, when asked to submit to a test, rather than respond he twice requested to speak to an attorney. Repeated requests for an attorney can amount to a refusal as long as the officer informs the driver that there is no right to an attorney at that point. State v. Reitter, 227 Wis. 2d 213, 235, 595 N.W.2d 646 (1999). The officer did so inform Baratka. We therefore conclude that the evidence supports the trial court's finding that Baratka refused chemical testing, and its order revoking Baratka's operating privileges.

By the Court. — Order affirmed.

       Originally assigned as a one-judge appeal, this case was reassigned to a three-judge panel on September 26, 2002. See Wis. Stat. Rule 809.41(3) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Based on our decision in State v. Schneck, 2002 WI App 239, 257 Wis. 2d 704, 652 N.W.2d 434, we question whether requests for admission are permissible in refusal and traffic cases.


text:
    State of Wisconsin, Plaintiff-Respondent, v. George Schertz, Defendant-Appellant.
    Court of Appeals

      No. 02-0789.

      Submitted on briefs September 9, 2002.

    Decided October 1, 2002.

    2002 WI App 289
    (Also reported in 655 N.W.2d 175.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Barbara A. Cadwell, White Lake.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and Sally L. Wellman, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. George Schertz appeals from an order revoking his conditional release and remanding him to Winnebago Mental Health Institute. Schertz claims that because a hearing on the State's petition to revoke his conditional release was not held within thirty days of filing pursuant to Wis. Stat. § 971.17(3)(e), the court lost competency. Because we conclude that § 971.17(3)(e) is directory rather than mandatory, we affirm the order.

FACTS

¶ 2. In November 1998, Schertz was charged with two counts of battery by an inmate in violation of Wis. Stat. § 940.20(1). He was found not guilty by reason of mental disease or defect, and the court ordered his conditional release.

¶ 3. On May 25, 2001, the State filed a statement of probable cause for Schertz's detention and a petition for revocation of his conditional release. The petition alleged that Schertz violated his conditions of release by drinking alcohol, being in a tavern and missing curfew at his residential placement. A hearing was held on June 25 where the trial court dismissed the petition because more than thirty days had passed since its filing, in violation of Wis. Stat. § 971.17(3)(e).

¶ 4. On June 27, the State filed another petition for revocation alleging the same violations as the previous petition. Schertz moved for dismissal. On September 14 the trial court held that the thirty-day limit in Wis. Stat. § 971.17(3)(e) was directory and allowed the State to proceed. At an October 15 hearing, the court found that Schertz violated the terms of his conditional release and he was remanded to the Winnebago Mental Health Institute. Schertz appeals.

STANDARD OF REVIEW

¶ 5. Whether a trial court has lost competency to act presents a question of law, which we review independently. State v. Kywanda F., 200 Wis. 2d 26, 32-33, 546 N.W.2d 440 (1996). Competency in this context means the court's power to adjudicate the specific type of controversy before it, and the court loses competency when it fails to comply with the requirements necessary for the valid exercise of that power. Green County DHS v. H.N., 162 Wis. 2d 635, 655-56 n.17, 469 N.W.2d 845 (1991).

¶ 6. In this case, the issue is whether the thirty-day requirement in Wis. Stat. § 971.17(3)(e) is mandatory or directory. "Whether a statute is mandatory or directory is a matter of statutory construction and, as such, is a question of law which we review without deference to the trial court." Combined Investigative Servs. v. Scottsdale Ins. Co., 165 Wis. 2d 262, 273, 477 N.W.2d 82 (Ct. App. 1991). Only when a statutory time limit is mandatory does the circuit court generally lose competence to proceed if that time limit is not met. Cf. Kywanda F., 200 Wis. 2d at 34; see Schoenwald v. M.C., 146 Wis. 2d 377, 391-92, 432 N.W.2d 588 (Ct. App. 1988).

DISCUSSION

¶ 7. Wisconsin Stat. § 971.17(3)(e) states in part:

If the department of health and family services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health and family services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 hours after the detention. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. (Emphasis added.)

Schertz maintains that the word "shall" makes this provision mandatory. However, statutory time limits are often held to be directory despite the word "shall." Eby v. Kozarek, 153 Wis. 2d 75, 79-80, 450 N.W.2d 249 (1990). In deciding whether a statute's use of the word "shall" is mandatory or directory, we consider the objectives sought to be accomplished by the statute, the statute's history, the consequences that would flow from the alternative interpretations, and whether a penalty is imposed by its violation. State v. Perry, 181 Wis. 2d 43, 53-54, 510 N.W.2d 722 (Ct. App. 1993).

¶ 8. As the State correctly points out, the analysis in State v. R.R.E., 162 Wis. 2d 698, 470 N.W.2d 283 (1991), is controlling and we apply the same methodology to determine whether the thirty-day provision is directory or mandatory. In R.R.E., the defendant was found not guilty of second-degree murder and attempted murder by reason of mental disease or defect, and was committed to the State Department of Health and Social Services pursuant to Wis. Stat. § 971.17. Id. at 702. R.R.E. petitioned the court for reexamination numerous times. Each time, the petition was either withdrawn by R.R.E. or the court determined that it was unsafe to release him. Id. at 703. The case centered on one such petition, which was lost for three months. R.R.E. argued that he was entitled to release from his criminal commitment because more than thirty days passed between the filing of the petition and the hearing. Id. Determining that the legislature did not intend the release of criminally committed individuals without a court determination that it was safe to do so, the supreme court concluded that the thirty-day provision was directory rather than mandatory. Id. at 715. We follow the same analysis.

¶ 9. To begin, we attempt to discern Wis. Stat. § 971.17's objective. In R.R.E., the supreme court stated that "[t]he legislature did not intend the release of criminally committed individuals without a court determination that the individual may be safely released." Id. at 704. The court then noted that the purpose of the statute is to protect the public, while still providing a defendant a right to periodic reexamination so that he or she may be released if he or she is no longer dangerous. The thirty-day requirement protects against delay by the court or the State in this evaluation process. Id. at 709. These same objectives apply in this case. The public will be protected from subsequent dangerous acts in violation of Schertz's conditions of release, and Schertz retains his right to release when he is no longer dangerous.

¶ 10. There is nothing in Wis. Stat. § 971.17's legislative history to suggest it should be mandatory, nor does the statute prescribe any penalty for its violation. In fact, the absence of a penalty provision within a statute suggests that a statutory provision is directory. Id. at 710. Further, if the legislature intends a penalty, it is up to that body to enact it. Id. at 710-11. It has not done so in this situation.

¶ 11. Finally, we look to the consequences that would flow from alternative interpretations. Schertz argues that the only consequence of the provision being mandatory would be that he would be released. He adds that even if released, the public will still be protected because he remains under supervision. However, the holding in R.R.E. again applies here. The legislature has made it clear that a criminally committed individual should not be released until the period of commitment expires, or a court has determined that the individual is no longer dangerous. Id. at 710. The supreme court was concerned about putting the burden on society for "nominal procedural delays of the court." Id. at 709. Schertz has committed acts in violation of his conditional release. To read the thirty-day provision as mandatory would allow Schertz to be released regardless of the potential danger to himself or others. This puts the public at risk of further violations.

¶ 12. Schertz argues that R.R.E. does not apply because his commitment is not criminal. He is mistaken. Wisconsin Stat. § 971.17(3)(e) is contained in the criminal code. Like R.R.E., Schertz was found not guilty by reason of mental disease or defect of a criminal offense. He was thereafter conditionally released pursuant to § 971.17. Without question, his commitment is criminal, and R.R.E. controls our analysis.

¶ 13. Schertz also argues that the legislature intended the thirty-day period to be mandatory in order to protect an individual's due process rights. He argues that if the time period was directory, an individual could be indefinitely deprived of his liberty without a hearing. He was held for more than thirty days on the first petition, and the detention was extended when the second petition was filed alleging the same violations as the first. However, we do not agree that an individual could be held indefinitely. Although the thirty-day provision is directory rather than mandatory, this does not mean that it is merely discretionary or permissive. R.R.E., 162 Wis. 2d at 715.

¶ 14. We conclude that the thirty-day requirement is directory. As a result, the failure to have a hearing within thirty days did not cause the court to lose competence to decide the second petition.

By the Court. — Order affirmed.

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

       This hearing was originally scheduled for June 22, the last day of the thirty-day period. However, Schertz was not present at that hearing because the mental institution staff would not allow him to leave because the habeas writ did not comply with the institution's requirement of a forty-eight-hour notice. The defense moved to dismiss because they could not have the hearing without him. The court granted the dismissal but stated that the State could file a new petition. Schertz's counsel stated he would object if the new petition did not allege new violations.