author: DYKMAN, EJ.

text:
    Zip Sort, Inc., d/b/a Federal Mailing Systems, Petitioner-Appellant, v. Wisconsin Department of Revenue, Respondent-Respondent.
    Court of Appeals

      No. 00-2824.

      Submitted on briefs March 9, 2001. —
    Decided July 18, 2001.

    2001 WI App 185
    (Also reported in 634 N.W.2d 99.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Kay Nord Hunt of Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, Minnesota.
    On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Stephen J. Nicks, assistant attorney general.
    Before Dykman, PJ., Vergeront and Roggensack, JJ.

       Petition to review denied 10-23-01.

   DYKMAN, EJ.

¶ 1. Zip Sort, Inc., appeals from an order affirming a Tax Appeals Commission (commission) decision that Zip Sort's property is not "manufacturing property" within the meaning of Wis. Stat. § 70.995 (1993-94). Zip Sort first asserts that we should apply a de novo standard of review to the commission's decision because it faced a question of first impression and because it has issued inconsistent decisions in the past. Zip Sort also argues that its property is manufacturing property as defined by § 70.995 because; (1) its business is more similar to manufacturing than not, and (2) the bar codes it "manufactures" are tangible personal property. The Department of Revenue (DOR) argues that the proper standard of review is great weight deference and that we should affirm the commission's decision because it was reasonable.

¶ 2. We disagree with Zip Sort's assertion that the correct standard of review is de novo because we conclude that the commission is experienced in interpreting Wis. Stat. § 70.995, and that any inconsistency in its past decisions was with regard to an issue not dispositive of this case. We need not determine whether the proper standard of review is due weight deference or great weight deference because the commission's interpretation of § 70.995(l)(a) is reasonable, and the alternative proposed by Zip Sort is not more reasonable. We therefore affirm.

I. Background

¶ 3. Since approximately November 1995, Zip Sort has been doing business in Milwaukee under the trade name "Federal Mailing Systems." Zip Sort's primary business is to make mail machine-sortable where it would otherwise have to be sorted by hand. It does so by applying an eleven-digit bar code to each piece of mail. Each mail piece is processed by a machine called a "multi-line optical character reader," in which a camera scans the address. The optical reader compares each address to a United States Postal Service (Postal Service) national directory and determines whether a bar code can be created for the particular address. If so, a bar code is printed on the piece of mail with an inkjet. The optical reader also verifies the bar codes and then sorts the mail to either three or five digits. Zip Sort bands and tags the partially sorted mail, and prepares it for shipment to the Postal Service. The Postal Service sorts the mail by the remaining digits.

¶ 4. Zip Sort generates revenue from its bar coding and sorting process in two ways: it charges customers to process their mail and it receives what is termed a "value-added refund" from the Postal Service for each piece of mail that is properly prepared according to Postal Service standards.

¶ 5. In February 1996, Zip Sort applied for classification of its Milwaukee location as "manufacturing property" under Wis. Stat. § 70.995. Wisconsin. Stat. ch. 70 contains the state's property tax statutes, and section 70.995 states, in part:

(1) Applicability, (a) In this section "manufacturing property" includes all lands, buildings, structures and other real property used in manufacturing, assembling, processing, fabricating, making or milling tangible personal property for profit....
(d) Except for the activities under sub. (2), activities not classified as manufacturing in the standard industrial classification manual, 1987 edition,, pub-bshed by the U.S. office of management and budget are not manufacturing for this section.
(2) FURTHER classification. In addition to the criteria set forth in sub. (1), property shall be deemed prima facie manufacturing property and eligible for assessment under this section if it is included in one of the following major group classifications set forth in the standard industrial classification manual, 1987 edition, published by the U.S. office of management and budget. For the purposes of this section, any other property described in this subsection shall also be deemed manufacturing property and eligible for assessment under this section:
(j) 27 — Printing, publishing and allied industries.
(v) 39 — Miscellaneous manufacturing industries.

DOR denied Zip Sort's request, concluding that Zip Sort's property did not meet the definition of manufacturing property as defined in Wis. Stat. § 70.995. Zip Sort filed an objection to DOR's determination with the State Board of Assessors, which upheld the decision by DOR.

¶ 6. Zip Sort appealed to the commission, which agreed with the decisions of DOR and the board. The commission determined that Wis. Stat. § 70.995(l)(d) and (2) must be read together, and that an activity is manufacturing for the purposes of § 70.995 if it is classifiable as manufacturing in the Standard Industrial Classification Manual (SIC manual) or if it is specifically defined as manufacturing by § 70.995, even though not listed in the SIC manual. The commission acknowledged that under Janesville Data Ctr., Inc. v. DOR, 84 Wis. 2d 341, 267 N.W.2d 656 (1978), the law was unclear as to whether the bar codes would constitute tangible personal property. The commission concluded, however, that classification of Zip Sort's property need not rest on such a determination.

¶ 7. The parties agreed before the commission that Zip Sort's business did not fit perfectly into any one of the categories listed in the SIC manual or otherwise enumerated in .Wis. Stat. § 70.995. As a result, the commission looked to the Wisconsin Property Assessment Manual (assessment manual) in order to determine whether Zip Sort's business could be considered manufacturing within the general definition of Wis. Stat. § 70.995(1). The assessment manual is promulgated by DOR pursuant to Wis. Stat. § 73.03 and is the primary document for defining assessment standards and practices in Wisconsin. State ex rel. Campbell v. Township of Delavan, 210 Wis. 2d 239, 258, 565 N.W.2d 209 (Ct. App. 1997).

¶ 8. The assessment manual states: "S. 70.995, Stats., and [the] SIC Manual may not cover every type of business in existence. For those not mentioned in either place, the criteria and general definitions included in s. 70.995(l)(a) and (b), Stats., shall be considered . . . ." Thus, the assessment manual acknowledges that even where a business does not fit perfectly into a SIC manual category or other classification specifically enumerated in Wis. Stat. § 70.995(2), it may nevertheless qualify as manufacturing property under the general definitions set forth in § 70.995(l)(a) and (b).

¶ 9. The assessment manual also states that, in order to determine whether a business qualifies under the general definition of Wis. Stat. § 70.995(l)(a) and (b), the following three questions should be asked, in order of priority:

1. Is the activity more similar to those specifically classified manufacturing by law and the SIC Manual, or more similar to those specifically classified nonmanufac-turing by law and the SIC Manual?
2. Is the activity more closely aligned with the general description of producing, assembling, fabricating, making or milling by machinery and equipment of a new article with a different form, use and name from existing materials, or is it more aligned with the general activities involved with services as generally described in the SIC Manual, wholesale trade, retail trade, agriculture, or construction?
3. Does the activity produce products more for wholesalers, interplant transfer, to order for industrial users or more for direct sale to domestic consumers?

¶ 10. Applying the three questions, the commission concluded that DOR properly denied manufacturing classification to Zip Sort. Zip Sort petitioned the circuit court for review of the commission's decision, and the circuit court affirmed the commission. Zip Sort appeals.

II. Analysis

A. Standard of Review

¶ 11. In an appeal following an administrative agency decision, we review the decision of the agency, not that of the circuit court. Zignego Co., Inc. v. DOR, 211 Wis. 2d 819, 824, 565 N.W.2d 590 (Ct. App. 1997). Here, we review the decision of the commission. See Hafner v. DOR, 2000 WI App 216, ¶ 3, 239 Wis. 2d 218, 619 N.W.2d 300. When we review an administrative agency's interpretation of a statute, there are three possible levels of deference. Barron Elec. Co-op. v. PSC, 212 Wis. 2d 752, 760, 569 N.W.2d 726 (Ct. App. 1997); see also Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 659-60, 539 N.W.2d 98 (1995).

¶ 12. When we give "great weight" deference to the agency's interpretation, we will sustain a reasonable agency conclusion even if an alternative conclusion is more reasonable. Zignego Co., 211 Wis. 2d at 823. We give "great weight" deference to the agency's interpretation when all of the following conditions are met: (1) the agency was charged by the legislature with the duty of administering the statute; (2) the interpretation of the agency is one of long standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. Id.

¶ 13. When we give "due weight" deference to the agency's interpretation, we will not overturn a reasonable agency decision that comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available. Zignego Co., 211 Wis. 2d at 823-24. We give "due weight" deference when the agency has some experience in an area, but has not developed the expertise that necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court. Id. at 823.

. ¶ 14. When we review an agency decision de novo, we give no deference to the agency's interpretation. Barron Elec., 212 Wis. 2d at 763. De novo review is appropriate if any of the following are true: (1) the issue before the agency is clearly one of first impression; (2) a legal question is presented and there is no evidence of any special agency expertise or experience; or (3) the agency's position on an issue has been so inconsistent that it provides no real guidance. Coutts v. Retirement Bd., 209 Wis. 2d 655, 664, 562 N.W.2d 917 (1997).

¶ 15. Zip Sort argues that we should review the commission's decision de novo. DOR contends that the proper standard of review is great weight deference. We disagree with Zip Sort that de novo review is required. We also conclude that we need not determine whether the proper standard of review is great weight deference or due weight deference because the commission's interpretation and application of Wis. Stat. § 70.995 is reasonable, whereas Zip Sort has not provided a more reasonable interpretation of § 70.995. We will first explain why de novo review is not required, and we will then turn to the reasonableness of the commission's conclusions under § 70.995.

¶ 16. Zip Sort first argues that de novo review is necessary because the question the commission faced was one of first impression, as well as one where it had no special expertise. Zip Sort asserts that it uses technology not contemplated by the SIC manual, which was published in 1987, and that the commission therefore could not rely on the SIC manual. We disagree.

¶ 17. We have previously considered and rejected the argument that because the commission has not already made an -identical determination to the one before it, de novo review is required:

[DOR] has been classifying manufacturing property since May 1, 1974, the effective date of the manufacturing machinery and equipment assessment and exemption law. The commission has reviewed numerous determinations by [DOR] under sec. 70.995, Stats. It is appropriate to give weight and deference to the commission's interpretation of a statute where it has experience and has developed expertise in construing a statute, although not on the precise question involved in a particular case.

Video Wisconsin Ltd. v. DOR, 175 Wis. 2d 195, 199-200, 498 N.W.2d 880 (Ct. App. 1993) (citations omitted); see also Susie Q Fish Co., Inc. v. DOR, 148 Wis. 2d 862, 868-69, 436 N.W.2d 914 (Ct. App. 1989). Referring to Susie Q Fish, we have also said:

[T]he key in determining what, if any, deference courts are to pay to an administrative agency's interpretation of a statute is the agency's experience in administering the particular statutory scheme — and that experience must necessarily derive from consideration of a variety of factual situations and circumstances. Indeed, we have recognized in a series of cases that an agency's experience and expertise need not have been exercised on the precise — -or even substantially similar- — facts in order for its decisions to be entitled to judicial deference.

Barron Elec., 212 Wis. 2d at 764; see also Johnson v. LIRC, 200 Wis. 2d 715, 721, 547 N.W.2d 783 (Ct. App. 1996) (giving due weight deference to a question of "very nearly first impression") (emphasis added).

¶ 18. Thus, even assuming the commission has not previously decided whether the application of bar codes to mail is manufacturing under Wis. Stat. § 70.995, it is still entitled to some degree of deference. Assuredly, this is not the first time that the commission has been called upon to make § 70.995 determinations for business activities that, due to technological advances, were not specifically contemplated by the fourteen-year-old SIC manual. As we explained in Video Wisconsin, the commission has many years of experience interpreting and implementing the statutory scheme set forth in § 70.995, and we are in no better position than the commission to address any perceived gap between the classification standards and recent technology.

¶ 19. Zip Sort refers us to S.C. Johnson & Son, Inc. v. DOR, 202 Wis. 2d 714, 726, 552 N.W.2d 102 (Ct. App. 1996), a case in which we engaged in a de novo review of the commission's interpretation of Wis. Stat. § 70.995. However, S.C. Johnson is readily distinguishable. In S.C. Johnson, the question was whether a manufacturing business's recreational facility could be considered part of its manufacturing property. Id. at 718. The taxpayer argued that the facility qualified under the part of § 70.995(l)(a) stating that "[m]anu-facturing property also includes warehouses, storage facilities and office structures when the predominant use of the warehouses, storage facilities or offices is in support of the manufacturing property." See id. at 722. In addition, the taxpayer also contended that its recreational facility qualified under § 70.995(2) and the SIC manual, which addresses the classification of recreational facilities. Id. at 724. We explained our reasons for reviewing the commission's conclusions de novo:

[DOR] acknowledged before the trial court that the taxpayer's appeal to the . .. Board of Assessors was "the first appeal in the past 20 years to the [board] to contest a denial to classify an auxiliary establishment as manu-factoring." The experience [DOR] has gained in classifying manufacturing property generally does not provide special expertise to resolve the legal issue of the relationship between auxiliary classifications under the SIC Manual and § 70.995(1) and (2), Stats.

Id. at 725-26. Thus, the situation in S.C. Johnson is unlike the situation here, where the commission's analysis was limited to the activities of the business itself. This is an area where the commission has a great deal of experience, as we emphasized in Video Wisconsin.

¶ 20. Zip Sort also asserts that we must review the commission's decision de novo because it has rendered inconsistent determinations. Zip Sort argues that the commission's decision in Health Micro Data Systems v. DOR, 87-S-418 Wis. Tax Rep. (CCH) ¶ 203-062 (May 29, 1989), is at odds with its decisions in B.I. Moyle Ass'n, Inc. v. DOR, 87-S-141, Wis. Tax Rep. (CCH)

¶ 203-208 (Dec. 12, 1990), and in Manpower Int'l, Inc. v. DOR, 93-S-255, Wis. Tax Rep. (CCH) ¶ 400-075 (Aug. 15, 1994). Zip Sort further asserts that the commission determination, in Health Micro is inconsistent with its determination in this case.

¶ 21. We need not recite all the details of those commission decisions here. The key point is that each decision addressed whether computer programs were tangible personal property for purposes of the Wis. Stat. ch. 77 sales and use tax. Manpower, Wis. Tax. Rep. (CCH) ¶ 400-075; B.I. Moyle, Wis. Tax Rep. (CCH) ¶ 203-208; Health Micro, Wis. Tax Rep. (CCH) ¶ 203-062. Even assuming the decisions present some inconsistencies, they are not "so inconsistent as to provide no real guidance" on the issue before the commission in this case. In Manpower, B.I. Moyle, and Health Micro, the commission was not interpreting Wis. Stat. § 70.995, and bar codes are not computer programs. The commission applied Janesville Data, a case we view as having questionable applicability for reasons we discuss further below. See infra ¶ 33. In short, we reject Zip Sort's assertion that the proper standard of review is de novo because of limited inconsistencies in previous commission decisions that are not on all fours with the case before us.

¶ 22. Having concluded that we should not apply de novo review, we turn to the reasonableness of the commission's interpretation of Wis. Stat. § 70.995. We do not determine whether the proper standard of review is due weight deference or great weight deference because we conclude that the commission's conclusions under § 70.995 at least met the due weight deference standard.

B. Commission's Conclusions under Wis. Stat. § 70.995

¶ 23. Under Wis. Stat. § 70.995(1)(d) and (2), certain categories of business activity qualify as "prima facie manufacturing property." However, the parties agree that Zip Sort's business does not fit perfectly into any of those categories. Therefore, Zip Sort's business qualifies as manufacturing property only if it fits within the general definition set forth in § 70.995(1). Section 70.995(l)(a) states in part:

(1) Applioability. (a) In this section "manufacturing property" includes all lands, buildings, structures and other real property used in manufacturing, assembling, processing, fabricating, making or milling tangible personal property for profit.

Zip Sort complains that the commission did not undertake its own independent statutory analysis but instead "deferred" to the three questions set forth in the assessment manual. Zip Sort argues that by focusing on the three questions, the commission failed to consider the plain language of Wis. Stat. § 70.995(l)(a) and (b).

¶ 24. As we noted earlier, the assessment manual was promulgated by DOR and is the primary document for defining assessment standards and practices in Wisconsin. See Campbell, 210 Wis. 2d at 258. The assessment manual explicitly recognizes that not all business activities will be covered by the SIC manual, and it sets forth the three questions precisely for the purpose of interpreting "the criteria and general definitions included in s. 70.995(l)(a) and (b)." The commission's decision to apply the three questions in the assessment manual in interpreting § 70.995 was therefore reasonable. The questions themselves refer to language in the statute, and Zip Sort's assertion that the general definition of "manufacturing property" in the statute must be analyzed independently of the questions is no more reasonable than the interpretation of the commission.

¶ 25. We turn next to the commission's conclusion under the three questions, again applying the reasonableness test. The first assessment manual question asks: is the activity more similar to those specifically classified as manufacturing by law and the SIC manual, or more similar to those specifically classified as non-manufacturing by law and the SIC manual? Answering this question, the commission concluded that Zip Sort's business was more like those classified as nonmanufac-turing than manufacturing. The commission noted that the major nonmanufacturing category of "Business Services" includes "establishments primarily engaged in rendering services, not elsewhere classified, to business establishments on a contract or fee basis, such as . . . mailing [or] data processing . ..The commission determined that Zip Sort's business was most similar to this category or to another general category, "Business Services, Not Elsewhere Classified," which includes "Presorting mail service."

¶ 26. Zip Sort asserts that its business is more analogous to several SIC manual manufacturing classifications, most notably "Commercial Printing, Not Elsewhere Classified," which contains the subcategory of "Labels, printed." Zip Sort points out that it is often the case that "what once may have been printed on labels is now printed directly on the mail piece itself."

¶ 27. The second question asks: is the activity more closely aligned with the general description of producing, assembling, fabricating, making or milling by machinery and equipment of a new article with a different form, use and name from existing materials, or is it more aligned with the general activities involved with services as generally described in the SIC manual, wholesale trade, retail trade, agriculture, or construction? Zip Sort asserts that its production of the bar code creates a "new article," that the bar code is something it produces that did not previously exist. The commission disagreed, reasoning that even if it assumed that the bar code was a new article with a different form and name from the addressed envelope, it did not follow "that its use is different than that of the original address, which is to facilitate the sorting and ultimate delivery of a mail piece." Looking at Zip Sort's business activity as a whole, which includes sorting after the application of the bar code, the commission determined that Zip Sort was more closely aligned with "services . . . such as data processing and mailing than with the general description of producing a new product from machinery and equipment." Therefore, the commission concluded, the second question also weighed against Zip Sort.

¶ 28. With regard to the first two questions, the commission's determination was reasonable, and Zip Sort's application of the questions is no more reasonable. It is arguable whether the bar code is an "article," let alone a new article with a use different from the original address. Given the categories in the SIC manual, it is no more reasonable to conclude that Zip Sort is engaged in printing labels than to conclude that it is engaged in presorting mail.

¶ 29. The third and final question asks: does the activity produce products more for wholesalers, inter-plant transfer, to order for industrial users or more for direct sale to domestic consumers? With regard to this question, the commission noted that "[t]he record doesn't provide a clear answer to this question." The commission then concluded that, because the first two questions weighed against Zip Sort and because the third question carried the least weight of the three, it did not need to answer the third question decisively to conclude that Zip Sort's property did not qualify as "manufacturing property" under Wis. Stat. § 70.995. Zip Sort makes its argument in one sentence: "Zip Sort's bar codes are produced for industrial users— namely, Zip Sort's private customers and the [Postal Service] — and not for direct sale to the domestic consumer market." We do not agree with Zip Sort because it assumes a conclusion that is part of the real issue in this case: whether Zip Sort is in fact making a product. Even if the bar codes were considered a product, Zip Sort's customers, other than the Postal Service, never actually receive the bar codes. They receive the service of having their outgoing mail coded and presorted in order to save money on postage. At any rate, the third question does not weigh strongly in favor of Zip Sort, if at all. We do not think the reasonableness of the commission's ultimate determination is undermined by its failure to make a determination with regard to the third question, particularly since the third question is to be given the least weight of the three.

¶ 30. Finally, Zip Sort argues that its Milwaukee property qualifies under Wis. Stat. § 70.995(l)(a) because a bar code should be considered tangible personal property. The commission concluded that it need not rest its decision on a determination of whether bar codes were tangible personal property. We agree with the commission.

¶ 31. First, we note that the classification of "manufacturing property" under Wis. Stat. § 70.995(1) does not depend only on whether tangible personal property is involved. The plain language of § 70.995 requires a broader analysis. Second, we have already explained that the assessment manual is the primary tool for classifying property under § 70.995(1), and it does not focus on defining tangible personal property.

¶ 32. Focusing on the definition of tangible personal property, as Zip Sort suggests, would not provide a more reasonable approach because there is no controlling authority on the question whether bar codes are tangible personal property. The closest is probably Janesville Data. There, the taxpayer transferred data provided by its customers onto key punch cards and magnetic tapes. Janesville Data, 84 Wis. 2d at 342. For almost all its customers, the taxpayer purchased key punch cards ahead of time in bulk and then passed that cost along to the customers. Id. at 342-43. One of the issues was whether the taxpayer's gross receipts were taxable under Wis. Stat. § 77.52 as involving the "sale, lease or rental at retail of tangible personal property." Id. at 343. Relying on a Texas case, the supreme court determined that "a keypunch operation was not taxable because the object of the transaction was the sale of intangible coded information, not the sale of tangible personal property." Id. at 346 (citing Bullock v. Statistical Tabulating Corp., 549 S.W.2d 166 (Tex. 1977)).

¶ 33. We question the applicability of Janesville Data here. It involved a different type of business and a different statute. See Janesville Data, 84 Wis. 2d at 342-43. Moreover, it is a twenty-three-year-old case set in an age of computer technology entirely different from the one in which we now live. If anything, it would appear to support a conclusion that bar codes are not tangible personal property. That conclusion would in turn support the commission's decision, albeit on other grounds. The existence of Janesville Data certainly does not suggest that Zip Sort's interpretation of Wis. Stat. § 70.995(l)(a) is more reasonable than that of the commission.

¶ 34. Given the questionable applicability of Jan-esville Data, and given our determination that the commission properly relied on the three questions in the assessment manual, we conclude that the commission need not have decided whether the bar codes were tangible personal property. The commission's ultimate conclusion is reasonable. Zip Sort's assertion that its bar codes are tangible personal property, and that because they are tangible personal property, its Milwaukee business is manufacturing property, is no more reasonable. We affirm the circuit court's decision upholding the commission's determination.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1993-94 version unless otherwise noted. Wisconsin Stat. § 70.995 states in part:
      (1) Applicability, (a) In this section "manufacturing property" includes all lands, buildings, structures and other real property used in manufacturing, assembling, processing, fabricating, making or milling tangible personal property for profit. Manufacturing property also includes warehouses, storage facilities and office structures when the predominant use of the warehouses, storage facilities or offices is in support of the manufacturing property, and all personal property owned or used by any person engaged in this state in any of the activities mentioned, and used in the activity, including raw materials, supplies, machinery, equipment, work in process and finished inventory when located at the site of the activity. Establishments engaged in assembling component parts of manufactured products are considered manufacturing establishments if the new product is neither a structure nor other fixed improvement. Materials processed by a manufacturing establishment include products of agriculture, forestry, fishing, mining and quarrying. For the purposes of this section, establishments which engage in mining metalliferous minerals are considered manufacturing establishments.
      (d) Except for the activities under sub. (2), activities not classified as manufacturing in the standard industrial classification manual, 1987 edition, published by the U.S. office of management and budget are not manufacturing for this section.
      (2) Further classification. In addition to the criteria set forth in sub. (1), property shall be deemed prima facie manufacturing property and eligible for assessment under this section if it is included in one of the following major group classifications set forth in the standard industrial classification manual, 1987 edition, published by the U.S. office of management and budget. For the purposes of this section, any other property described in this subsection shall also be deemed manufacturing property and eligible for assessment under this section:
      (j) 27 — Printing, publishing and allied industries.
      (v) 39 — Miscellaneous manufacturing industries.

       In addition to the categories cross-referenced to the SIC manual, Wis. Stat. § 70.995(2)(x)-(z) lists additional classifications.

       Wisconsin Stat. § 73.03 states, in part:
      It shall be the duty of the department of revenue, and it shall have power and authority:
      (2a) To prepare, have published and distribute to each county having a county assessor system under s. 70.99 and to each town, city and village in the state for the use of assessors, assessment personnel and the public detailed assessment manuals .... The manual shall discuss and illustrate accepted assessment methods, techniques and practices with a view to more nearly uniform and more consistent assessments of property at the local level.

       Zip Sort relies heavily on a Minnesota case in which that state's supreme court concluded that Zip Sort's bar codes were tangible personal property. See Zip Sort, Inc. v. Comm'r, 567 N.W.2d 34, 40 (Minn. 1997). Ofcourse, we are not bound by another state's judicial determinations. Koshiol v. American Family Mut. Ins. Co., 171 Wis. 2d 192, 196, 491 N.W.2d 776 (Ct. App. 1992). We decline to overturn the commission's decision based on another state's reading of its own sales tax statutes.


source: Caselaw Access Project

author: BROWN, PJ.

license: Public Domain

text:
    Tri-Tech Corporation of America, Plaintiff-Respondent, v. Americomp Services, Inc., Defendant, James Schmidt, Defendant-Appellants.

    Court of Appeals

      No. 00-3195.

      Submitted on briefs May 23, 2001. —
    Decided July 18, 2001.

    2001 WI App 191
    (Also reported in 633 N.W.2d 683.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Dayten P. Hanson of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert J. Welcenbach and Michael J. Widmann of Welcenbach & Widmann of Milwaukee
    Before Brown, PJ., Anderson and Snyder, JJ.

       Petition to review granted 10-23-01.

   BROWN, PJ.

¶ 1. This case concerns the imposition of treble damages plus the litigation costs for contractor theft based on a recent statute, Wis. Stat. § 895.80 (1999-2000). The most noteworthy issue, which we get to last, is whether violation of the contractor theft statute, Wis. Stat. § 943.20(l)(b), automatically means that the victim gets treble damages and attorney's fees upon proof that the statute was violated. We answer that question no. The plaintiff must initially prove that the contractor theft was accomplished with criminal intent pursuant to § 943.20(l)(b). But we nonetheless affirm treble damages because the summary judgment record supports it. We also hold that the installation of computer cabling in an office building is an "improvement" of that building under the contractor theft statute. There are other issues also raised that we will briefly touch upon.

¶ 2. We set forth a rather detailed account of the procedural history of this case because its recitation will help present the major issue in this case, as well as a preliminary issue in this case, which we hold to be waived.

¶ 3. This action began with a complaint, filed on March 7, 2000, by Tri-Tech Corporation of America against Americomp Services, Inc., and its owner and sole shareholder, James Schmidt. Americomp had entered into an arrangement with a third party, The Frantz Group, to perform computer networking installation. It hired Tri-Tech to lay the cable in the building in which The Frantz Group was housed. The cable was laid, the networking services were performed and The Frantz Group paid Americomp for this work. Tri-Tech submitted an invoice in the amount of $27,807.95.

¶ 4. Despite numerous demands, Americomp did not pay the bill. Tri-Tech alleged that any moneys paid by The Frantz Group to the defendants constituted a trust fund pursuant to Wis. Stat. § 779.02(5). Tri-Tech further alleged that the defendants were under an obligation to use funds received from The Frantz Group to pay Tri-Tech. Tri-Tech complained that failure to pay was a violation, therefore, of the theft by contractor statute for which Schmidt was personally liable. In addition, Tri-Tech alleged that the failure to pay the claim amounted to a misappropriation of trust funds and that based on the misappropriation, Tri-Tech was entitled to treble damages and costs and attorney's fees under Wis. Stat. §§ 895.80 and 943.20.

¶ 5. Americomp and Schmidt answered, admitting that Tri-Tech provided the work in the sum alleged, that The Frantz Group paid Americomp for that work and that Americomp had not paid Tri-Tech. They further admitted that Americomp had received an invoice, had also received numerous statements on the account from Tri-Tech and had not objected to them.

¶ 6. Thereafter, Tri-Tech moved for summary judgment, filed on May 18, providing an affidavit and a brief in support. This motion was made only against Americomp, not Schmidt. This motion asserted, inter alia, that Americomp was the prime contractor for The Frantz Group and that Wis. Stat. § 779.02(5) required it to hold all moneys paid to it in trust for the benefit of all subcontractors whose claims were due. Tri-Tech contended that Americomp was under obligation to hold these moneys for Tri-Tech and the failure to do so was a breach of its fiduciary duty. The motion was scheduled to be heard on June 19.

¶ 7. On June 6, Americomp filed an amended answer alleging that a set-off of $5700.71 was due for work performed by Americomp for Tri-Tech on another project, for which Americomp had not yet been paid. Tri-Tech denied that this amount was due and owing on June 16.

¶ 8. On June 16, Americomp, and not Schmidt, served by mail a brief in opposition to summary judgment. The brief argued, inter alia, that summary judgment against Americomp on the theft by contractor theory was inappropriate because Tri-Tech had to prove that The Frantz Group was the "owner" of the property upon which the improvements were made. Americomp contended that there was no evidentiary support in the summary judgment motion for that to be the case.

¶ 9. The summary judgment motion was heard by the court and the parties apparently stipulated to the court rendering judgment for Tri-Tech for $27,807.95 less a set-off of $5700.71. The judgment also stated that all causes of action against Schmidt, personally, were preserved.

¶ 10. Then on July 28, Tri-Tech filed a motion for summary judgment against Schmidt. As it did with Americomp, Tri-Tech argued in its brief that Americomp's actions amounted to theft by contractor. But Tri-Tech went further and pointed out that Wis. Stat. § 779.02(5) makes the officers and directors of the corporation personally liable. In addition, Tri-Tech contended that the use of such trust funds is considered a misappropriation punishable under the theft statute, Wis. Stat. § 943.20. Tri-Tech theorized that since Wis. Stat. § 895.80 provides for treble damages plus attorney's fees and costs to anyone who suffers a loss based on § 943.20, Schmidt was liable for treble damages.

¶ 11. The record does not contain any proof that a counteraffidavit or brief in opposition to this motion was filed before the hearing date, September 18. At the hearing, however, Schmidt had two basic points to make in opposition. First, that the installation of cable was not an "improvement" to the building and second, that the treble damages statute does not list the contractor theft statute as an underlying claim for which treble damages may be awarded. The trial court disagreed with Schmidt and ordered judgment of treble damages against him personally, plus attorney's fees and costs. This is Schmidt's appeal from that judgment. The judgment against Americomp is not being appealed.

1. EFFECT OF FAILURE TO TIMELY SUBMIT SPECIFIC EVIDENTIARY MATERIALS IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT.

¶ 12. With the procedural status at hand, we can easily answer Schmidt's first issue. He claims that neither Tri-Tech's pleadings nor its affidavit in support of summary judgment presents proof that The Frantz Group was an owner. This is important, claims Schmidt, because of the language contained in the first sentence of the theft by contractor statute. Wisconsin Stat. § 779.02(5) says, in pertinent part:

(5) Theft By CONTRACTORS. The proceeds of ... all moneys paid to any prime contractor or subcontractor by any owner for improvements, constitute a trust fund .... (Emphasis added.)

Schmidt reads the above to mean that only if the claimant proves that the moneys were paid by an "owner" does the statute become capable of enforcement.

¶ 13. But Schmidt's problem is that he did not follow the statute in opposing the motion for summary judgment. Wisconsin Stat. § 802.08(2) specifically requires that the adverse party shall serve opposing affidavits, if any, at least five days before the time fixed for the hearing. Here, Tri-Tech's pleading asserted that its installation of cabling occurred at a property owned by The Frantz Group. Supporting papers to the summary judgment motion made the same allegation. No opposing papers were presented by Schmidt. Thus, the factual issue of whether The Frantz Group was an owner was simply not disputed. Moreover, at the summary judgment hearing itself, Schmidt never raised the issue of whether The Frantz Group was an owner. The issue is thus raised for the first time on appeal and is waived.

¶ 14. Schmidt attempts to get around these problems by pointing out that he did present an affidavit contesting that The Frantz Group was an owner, albeit in response to the motion for summary judgment against Americomp, not in response to the motion for summary judgment against him. That will not suffice. The first motion for summary judgment was only against Americomp. Schmidt has offered no authority for the proposition that he can use the affidavit he filed opposing summary judgment against Americomp in the action later taken against him. Schmidt's first issue fails.

2. WHETHER THE INSTALLATION OF COMPUTER CABLING IN A BUILDING CONSTITUTES AN "IMPROVEMENT" FOR PURPOSES OF THE THEFT BY CONTRACTOR STATUTE.

¶ 15. Despite the fact that no supporting materials in opposition to the motion for summary judgment were submitted by Schmidt, that failure only affects the question of whether there are disputed issues of fact making summary judgment inappropriate. The failure to submit opposing materials does not affect whether a party moving for summary judgment is entitled to judgment as a matter of law. Schmidt's next issue is one of law, although, curiously, he labels it as a question of fact which he contends was disputed by the materials produced before the trial court at the summary judgment hearing. If indeed the issue were a question of fact, he would be out of court for the same reasons that his first issue, discussed above, fails. But the issue is whether cable installation constitutes an improvement under the statute. Therefore, the issue is one of applying undisputed facts to the law, which is an issue of law. State v. Williams, 104 Wis. 2d 15, 21-22, 310 N.W.2d 601 (1981). We move to the merits.

¶ 16. Schmidt contends that the word "improvements" as it exists in the theft by contractor statute, is a term of legal art with a specific meaning in mind. He points out that the statute defines an "improvement" as something "made or done on or to the land for its permanent benefit." Wis. Stat. § 779.01(2)(a). He insists that the computer cabling does not meet this definition. He claims that computer cabling is not "permanent" because it is capable of being removed and is therefore not an improvement.

¶ 17. We do not agree. Schmidt was hired to do computer networking. In the culture of the new technology, this is a term with a definite meaning. It means "two or more computers that are connected with one another for the purpose of communicating data electronically." Encyclopedia Britannica, Computer Network, available at http://www.britannica.com. "Two basic network types are local-area networks (LANs) and wide-area (or long-haul) networks. LANs connect computers and peripheral devices in a limited physical area, such as a business office ... by means of permanent links (wires, cables, fibre optics) that transmit data rapidly." Id. "Wide-area networks connect computers and smaller networks to larger networks over greater geographic areas, including different continents. They may link the computers by means of cables . . . but their users commonly access the networks via modem .... The largest wide-area network is the internet." Id.

¶ 18. Whether Tri-Tech was hired by Schmidt to provide links for a LANs network, which was probably the case, or a wide-area network is not important. What is important is that Tri-Tech was hired to provide the links and these links are laid in a manner similar to other forms of wiring that are commonly put into a building and which are considered by the courts to be permanent benefits. In fact, Schmidt stipulated before the trial court that when a building's infrastructure is laid with cable whose purpose is to connect two or more computers or peripheral devices, it becomes a benefit to the building just as the wiring for electricity, phone or intercom. It is obvious why Schmidt stipulated to this fact. A cable wiring plan requires the same long runs, the same gradual versus steep curves, the same stapling and splicing concerns as electrical wiring. Steve DeRose's guide to CAT5 computer network wiring (August 5, 2000), available at http://www. stg.brown. edu/~ sjd/wiring/CAT5-wiring.html. We conclude that such wiring provides a benefit to the building that was not there before. The building is now wired for networking where it was not so wired before.

¶ 19. While Schmidt admits that the wiring benefits the building in a manner that was not present before, he objects to the characterization that it is a "permanent" improvement, like electrical wiring, which is required by the statute. Schmidt theorizes that "rapid changes" in the computer industry will eventually require that the cable either be removed or that it will be rendered obsolete. He therefore asserts that one cannot say that the benefit to the building will be "permanent." It may turn out that his vision is correct. But that is all it is right now — a vision. And we could make the same speculative assumption with regard to electrical wiring and telephone wiring and just about everything else that we now consider to be permanent additions to a building. All may become obsolete someday. But we must deal with reality as it now exists. And for now, the cable provides a permanent benefit.

3. WHETHER SCHMIDT IS LIABLE FOR TREBLE DAMAGES.

¶ 20. Wisconsin Stat. ch. 943 pertains to crimes against property. The common law has always allowed persons whose property has been intentionally damaged or misappropriated to sue the perpetrator for damages in a civil action. However, in cases involving intentional torts, the supreme court adopted and applied the middle burden of proof in which the victim had to prove his or her case by clear and convincing evidence. Kuehn v. Kuehn, 11 Wis. 2d 15, 26-30, 104 N.W.2d 138 (1960).

¶ 21. The legislature, in an obvious policy choice, decided to create a new cause of action for victims of certain crimes against property, one in which the lower burden of proof — preponderance of the evidence— would be utilized. In another departure from common law, the legislature also decided that if the victims of these crimes against property prevailed in this new cause of action, they could recover treble damages plus the costs of investigation and litigation reasonably incurred. This relatively new statute, Wis. Stat. § 895.80, states in pertinent part:

895.80 Property damage or loss. (1) Any person who suffers damage or loss by reason of intentional conduct that occurs on or after November 1, 1995, and that is prohibited under s. 943.01, 943.20, 943.21, 943.24, 943.26, 943.34, 943.395, 943.41, 943.50 or 943.61... has a cause of action against the person who caused the damage or loss.
(2) The burden of proof... is ... by a preponderance of the credible evidence.
(3) If the plaintiff prevails in a civil action ... he or she may recover all of the following:
(a) Treble damages.
(b) All costs of investigation and litigation that were reasonably incurred.
(4) A person may bring a civil action .. . regardless of whether there has been a criminal action....

¶ 22. As we stated above, Tri-Tech's suit against Schmidt invoked this statute and the trial court's summary judgment awarded treble damages plus litigation costs. Schmidt argues that the award was inappropriate for two reasons. First, Schmidt argues that the legislature only meant to expose certain types of wrongdoers to treble damages and those wrongdoers consist of persons who violate the specific statutes listed in Wis. Stat. § 895.80(1). Schmidt argues that the doctrine of expressio unis est exclusio alterius is an apt maxim to use here. Under this doctrine, when a statute makes reference to a list of specific alternatives in a statute, it evidences the legislature's intent to exclude alternatives that have not been listed. See C.A.K. v. State, 154 Wis. 2d 612, 621, 453 N.W.2d 897 (1990). Schmidt asserts that the absence of Wis. Stat. § 779.02(5) from the list of statutes found in § 895.80(1) is proof that the legislature did not intend for victims of contractor theft to receive the benefits of the statute.

¶ 23. Tri-Tech counters that because Wis. Stat. § 779.02(5) specifically mentions how failure to hold moneys in trust for the benefit of subcontractors is "punishable under s. 943.20," the failure is ipso facto theft. Although Wis. Stat. § 895.80(1) does not enumerate § 779.02(5), it does enumerate Wis. Stat. § 943.20. Since a violation of § 779.02(5) is also a violation of § 943.20, Tri-Tech reasons that the mere failure to hold moneys in trust automatically comes under the purview of § 895.80(1).

¶ 24. Whether Wis. Stat. § 895.80(1) encompasses Wis. Stat. § 779.02(5) via Wis. Stat. § 943.20 involves statutory construction and is a question of law that we review de novo. Morris v. Juneau County, 219 Wis. 2d 543, 550, 579 N.W.2d 690 (1998). In deciding which party is correct in its interpretation, it is appropriate at this juncture to cite both Wis. Stat. §§ 943.20 and 779.02(5) in their pertinent parts:

943.20 Theft. (1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):
(b) By virtue of his or her office, business or employment, or as trustee ... having possession or custody of money . . . intentionally uses, transfers, conceals, or retains possession of such money .. . without the owner's consent, contrary to his or her authority, and with intent to convert to his or her own use or to the use of any other person except the owner. A refusal to deliver any money ... which is in his or her possession or custody by virtue of his or her office, business or employment, or as trustee . . . upon demand of the person entitled to receive it, or as required by law, is prima facie evidence of an intent to convert to his or her own use within the meaning of this paragraph. (Emphasis added.)

The contractor theft statute, Wis. Stat. § 779.02(5) says in pertinent part:

(5) Theft By CONTRACTORS. [A]ll moneys paid to any prime contractor or subcontractor by any owner for improvements, constitute a trust fund only in the hands of the prime contractor or subcontractor to the amount of all claims due or to become due or owing from the prime contractor or subcontractor for labor and materials used for the improvements, until all the claims have been paid, and shall not be a trust fund in the hands of any other person. The use of such moneys by any prime contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute . . . have been paid in full or proportionally in cases of a deficiency, is theft by the prime contractor or subcontractor of moneys so misappropriated and is punishable under s. 943.20. If the prime contractor or subcontractor is a corporation, such misappropriation also shall be deemed theft by any officers, directors or agents of the corporation responsible for the misappropriation. (Emphasis added.)

¶ 25. The former statute, Wis. Stat. § 943.20, is a criminal statute creating the crime of theft by contractor punishable under the provisions of that statute. See State v. Wolter, 85 Wis. 2d 353, 362, 270 N.W.2d 230 (Ct. App. 1978). Section 943.20 is the criminal action while the latter statute, Wis. Stat. § 779.02(5), is the action creating civil liability. See id. Case law informs us that the only difference between a civil and criminal action for theft by contractor is that the criminal conviction has an additional burden of proving criminal intent to defraud. See State v. Blaisdell, 85 Wis. 2d 172, 179, 270 N.W.2d 69 (1978).

¶ 26. Tri-Tech claims that Blaisdell, a supreme court case, was overruled by two later court of appeals cases, State v. Hess, 99 Wis. 2d 22, 298 N.W.2d 111 (Ct. App. 1980), and Wolter. That cannot be so. This court has no authority to overrule the supreme court. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). And neither Hess nor Wolter can be read to have diluted or narrowed the holding of Blaisdell. Rather, the cases followed and explained Blaisdell.

¶ 27. We hold that there is a difference between criminal and civil theft by contractor. The difference is that the criminal statute requires wrongful intent and the civil statute does not. Therefore, it is incorrect to say that a violation of Wis. Stat. § 779.02(5) is ipso facto a violation of Wis. Stat. § 943.20. While failure to hold moneys in trust is punishable under § 943.20, it does not mean that the mere failure to pay moneys out of the trust fund is automatically subject to criminal action. We agree, therefore, with Schmidt to a certain extent. Violation of the contractor theft statute, standing alone, does not mean that treble damages are automatically available to the victim.

¶ 28. A review of the types of crimes the legislature thought were deserving of a separate claim for treble damages enforces our belief that the intent of the legislature was to provide a cause of action to those who were victims of "criminal" conduct causing "property damage or loss." Those victims covered under the treble damages statute include the following: persons who were victims of intentional damage to property, fraud upon a hotel keeper, issuance of a worthless check, removal or damage to encumbered property, receiving or concealing stolen property, fraudulent insurance or employee benefits claims, credit card fraud, shoplifting and theft of library materials. See Wis. Stat. § 895.80(1). In each of these instances, a criminal conviction would require a state of mind on the part of the perpetrator commensurate with criminal intent to do the act. The statute speaks to violation of Wis. Stat. § 943.20. It does not speak to violation of Wis. Stat. § 779.02(5). Schmidt's interpretation of the statute in that regard is correct.

¶ 29. Our holding here does not, however, relieve Schmidt from exposure to treble damages. Having decided that criminal intent is a necessary precondition to victim compensation under the treble damages section, Schmidt maintains that this means criminal intent which is proven beyond a reasonable doubt. That is incorrect. The treble damages statute expressly states that the victim need only prove criminal intent to a preponderance of the evidence. Moreover, under the plain wording of the statute, there need not be a criminal action resulting in a conviction as a precondition to a suit for treble damages. Therefore, the victim pursuing treble damages must prove criminal intent, but only to a preponderance of the evidence.

¶ 30. There is also a question about what is meant by the term "criminal intent" for purposes of contractor theft. Schmidt maintains that, under Blaisdell, there must be a showing that he intended to defraud Tri-Tech and since there is no evidence that he had this evil purpose in mind, the treble damages statute may not be applied.

¶ 31. Schmidt's argument requires a close look at what the Blaisdell court meant by criminal intent to defraud. In Blaisdell, the defendants Blaisdell and Utech, doing business as electrical contractors, argued that criminal theft by contractor differed from civil theft by contractor in that, in a criminal matter, the State had to prove that it was their design never to pay their supplier from the funds received. Blaisdell, 85 Wis. 2d at 177. This, they thought, was different from the civil action where all that needed to be proven was that, for one reason or another, the supplier was not paid from the funds held in trust. Id. at 178-79. In other words, the two defendants were claiming that there had to be a showing that they had the intent to "stiff1 their supplier.

¶ 32. The Blaisdell court rejected the claim. It held that all the State needed to do in the criminal action was to prove that the defendants intentionally used the funds received from the general contractor for purposes other than payment to the supplier. Id. at 178. The Blaisdell court cited a memorandum from Professor Walter Raushenbush saying that "[i]f a contractor is building several houses and uses a progress payment on the most recent one to pay off the subs on a previous one, that is larceny." Id. Thus, "intent to defraud" was not synomymous with an intent to "stiff," but rather with the state of mind to use the money held in trust for purposes other than to pay the people who did the work for which the money was held in trust. The trial court in our case put it nicely. It said that the "intentional requirement doesn't require an intention to commit a criminal act, just requires that the conduct be intentional." The trial court was correct.

¶ 33. And how does the State, in a criminal action, prove that the defendant had the state of mind to use the money held in trust for another purpose? Blaisdell supplies the answer. The court wrote: "[I]ntent is a state of mind which can be evidenced only by words or conduct of the person who is claimed to have entertained it." Id. at 180 (citation omitted). Thus, proof of "intent to defraud" requires no more than the production of sufficient evidence to establish criminal intent. Hess, 99 Wis. 2d at 29. An example of such conduct is the receipt of money held in trust for paying the supplier or subcontractor but using the money to pay other suppliers or contractors or using it to pay oneself. Id. at 31-32.

¶ 34. The elements necessary for a conviction under Wis. Stat. § 943.20(1)(b) are as follows: (1) the defendant acted as prime contractor, (2) the defendant received money for the improvement of land from the owner or a mortgagee, (3) the defendant intentionally used the money for purposes other than the payment of bona fide claims for labor or materials prior to the payment of such claims; (4) the use was without the owner or mortgagee's consent, (5) the defendant knew the use was without consent and contrary to his authority, and (6) the defendant used the money with intent to convert it to his own use or the use of another. Hess, 99 Wis. 2d at 28.

¶ 35. Moreover, the theft statute states that a refusal to pay money to the subcontractor or supplier out of the trust fund is prima facie evidence of an intent to convert to his or her own use within the meaning of the statute.

¶ 36. Applying these standards to the summary judgment record, we find sufficient facts to allege an action under Wis. Stat. § 943.20(l)(b). Schmidt is identified in the complaint as the person who owned the company that was the prime contractor. The complaint and the affidavit in support of the summary judgment detail the nature of the contract, the payment by The Frantz Group for installing the cables and the nonpayment by Schmidt, despite accepting the material without objection and despite numerous demands for payment. From this conduct, Tri-Tech has laid out a prima facie case that Schmidt knew his company had the money in trust for Tri-Tech, knew that he had a fiduciary duty to pay those funds to Tri-Tech and misappropriated those funds for his or another use.

¶ 37. To this record, there is no affidavit by Schmidt in opposition. The result of that failure is that the prima facie case, set .forth by Tri-Tech, lies unre-butted. Tri-Tech has thus made its case for criminal intent to defraud it by a preponderance of the evidence. There is simply no pleading in the summary judgment record to join the issue.

¶ 38. The trial court surmised, "had Schmidt supplied an affidavit saying he meant to deposit the money into a trust account, but he put the wrong account number on the deposit form that would be the kind of factual issue that would contest whether it was intentional. But there is no factual issue of any kind about that. ... So there is no genuine issue of material fact." In our view, the trial court has, by hypothetical, accurately explained the difference between the civil contractor theft statute and the criminal statute. Had Schmidt provided an affidavit with the kind of information outlined in the trial court's hypothetical, then there would be a question of whether he intended to pay the money out of a trust fund for other purposes. Had he supplied such an affidavit and had the finder of fact ultimately chosen to believe his side of the story, he still would have been liable under the civil contractor theft statute because the money did not go to Tri-Tech as the civil statute commands. But he would not have been liable under the criminal statute because while TriTech was not paid, it was not because Schmidt had knowledge that he was using the trust fund to pay other sources.

¶ 39. We affirm the trial court.

By the Court. — Judgment and order affirmed.

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

       Schmidt also claims that there is a "disputed issue of fact" as to whether Tri-Tech's agreement with Americomp is one that falls within the scope of the construction lien statute set forth in Wis. Stat. § 779.02(5). Schmidt is apparently of the belief that recovery under the contractor theft statute requires, as a condition precedent, that the underlying contract was a "construction contract." He seems to argue that because there is no evidence that Tri-Tech filed lien notices or a construction lien, the underlying contract was not subject to the Construction Lien Law. This issue appears to us to be a question of law rather than fact. It asks whether, as a matter of law, construction liens and notices are a necessary condition precedent to a cause of action under the theft by contractor statute. Nevertheless, no matter how ill-framed the issue is, it is meritless for the answer has already been established by recent case law. In Wisconsin Dairies Coop. v. Citizens Bank & Trust, 160 Wis. 2d 758, 770, 467 N.W.2d 124 (1991), our supreme court held as follows:
      [Nleither the language of sec. 779.02(5), Stats., the legislative history, the policies behind the statute, nor our prior decisions support a conclusion that the legislature intended to terminate the trust fund if the subcontractor failed to preserve its lien rights. To the contrary, these factors demonstrate that the legislature intended to provide two independent and alternative remedies for protecting subcontractors — the construction lien provisions, see, e.g., sec. 779.01(3), and the trust fund statute.


author: VERGERONT, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. James W. Whistleman, Defendant-Respondent.
    Court of Appeals

      No. 00-2906-CR.

      Submitted on briefs June 11, 2001. —
    Decided July 19, 2001.

    2001 WI App 189
    (Also reported in 633 N.W.2d 249.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, Attorney General, and Daniel J. O'Brien, Asst. Attorney General.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael J. Devanie of La Crosse.
    Before Dykman, PJ., Vergeront and Deininger, JJ.
   VERGERONT, J.

¶ 1. The issue on this appeal is whether possession of a computer disk that stores images of child pornography is a violation of Wis. Stat. § 948.12 (1999-2000), which provides:

Possession of child pornography. Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction or audio recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class E felony:
(1) The person knows that he or she possesses the material.
(2) The person knows the character and content of the sexually explicit conduct shown in the material.
(3) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years.

The trial court concluded that possession of such a computer disk is not a violation of the statute, and the State appeals. We hold that computer disks that store images of child pornography are included within the meaning of the term "or other pictorial reproduction." Accordingly, we reverse and remand for further proceedings.

BACKGROUND

¶ 2. The amended complaint charged James W. Whistleman with four counts of possession of child pornography in violation of Wis. Stat. § 948.12. At the preliminary hearing the State introduced four photographs depicting children engaged in sexually explicit behavior. An investigator with the City of La Crosse Police Department testified that he obtained these photographs from computer zip-drive disks found at Whistleman's residence. The court ordered Whistle-man bound over for trial on those charges.

¶ 3. Whistleman filed a motion in limine seeking to suppress the photographs as evidence at trial. He contended the photographs were not found at his residence and the term "pictorial reproductions" in Wis. Stat. § 948.12 did not include the computer disks. After hearing the parties' arguments, the trial court agreed with Whistleman. It reasoned that since Wis. Stat. § 948.12 was a criminal statute, courts were to construe it narrowly, and the legislature could have chosen language that included computer disks, but it did not. After the court's ruling, the State asked to call a witness who could testify on how the zip-drive disks worked in order to make a complete record for appeal. The court allowed this, and at a continued hearing, the officer who had testified at the preliminary examination explained how the photographs were produced from the disks found at Whistleman's residence. He testified that as soon as one of the disks was inserted into a computer, a list of files appears labeled "juveniles" with various ages listed. Clicking on one of those files brought an image onto the screen, and clicking on "print" printed out the displayed image.

¶ 4. The trial court's ruling construing the statute did not change as a result of this testimony. Accordingly, the court ordered that the photographs could not be introduced into evidence. It then stayed the trial on the four charges pending this appeal.

DISCUSSION

¶ 5. The State contends the trial court erred in its interpretation of Wis. Stat. § 948.12 because the term "other pictorial reproduction" plainly includes computer disks that store visual images. According to the State, "other pictorial reproduction" indicates the legislature intended the statute to have a broad scope and to include all pictures of children engaged in sexually explicit conduct, no matter how those pictures are created, stored, or reproduced. Whistleman agrees that the statutory language is not ambiguous, but he asserts "other pictorial reproduction" plainly does not include computer disks.

¶ 6. The construction of a statute and its application to a particular set of facts is a question of law, which we review de novo. State v. Kittilstad, 231 Wis. 2d 245, 256, 603 N.W.2d 732 (1999). The aim of statutory construction is to determine the intent of the legislature, and we begin with the plain language of the statute. Id. If that language is unambiguous, we apply the ordinary and accepted meaning of the language to the facts before us. Id. In the absence of a statutory definition, we construe words according to their common and approved usage, which may be established by a dictionary. Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995). The need to look to a dictionary to establish the usual meaning of words does not mean the statute is ambiguous. State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 (1998).

¶ 7. The applicable dictionary definitions of "reproduce" are:

reproduce 1. To produce a counterpart, an image, or a copy of .... 3. To produce again or anew; re-create.

The American Heritage College Dictionary 1159 (3d ed. 1993). The applicable definitions of "pictorial" and "picture" are:

pictorial 1. Relating to, characterized by, or composed of pictures.
picture 1. A visual representation or image drawn, photographed, or otherwise rendered on a flat surface.

Id. at 1034. The computer disks taken from Whistleman's residence produce visual images on the computer screen when a person inserts the disks into a computer and clicks on a file. We conclude the disks thus come within the ordinary meaning of "pictorial reproduction."

¶ 8. Whistleman's argument that the disks are not "pictorial reproductions" because one cannot see the images of the children by looking at the disks is not persuasive. The words "or other" before "pictorial reproduction" indicate that the legislature meant that the preceding "videotape" is included within the term "pictorial reproduction." Yet one cannot see a visual image by looking at a videotape: the tape must be inserted into a VCR in order to produce a visual image on the screen. Nor do we find persuasive Whistleman's argument that the computer disks store data, not images of children. A videotape also stores the data necessary to create a visual image rather than the visual image itself, similar to the way Whistleman describes a computer disk functioning.

¶ 9. We also observe that two of the items preceding "or other pictorial reproduction" — "undeveloped film" and "photographic negatives" — are processed in particular ways to produce a "photograph," and thus are one way to produce a picture of a child, while "motion picture" and "videotape," each created through other and distinct processes, produce pictures of a child on a screen. The legislature's choice of the broad term "or other pictorial reproduction" following various specific items, which are created and processed in different ways in order to produce a picture of a child, indicates an intent to penalize items that are able to readily produce pictures of children engaging in sexually explicit conduct, whatever the particular process or technology. It is not reasonable to conclude that in choosing the broad term "or other pictorial representation," the legislature intended to exclude one particular, and increasingly common, means of storing and producing visual images.

¶ 10. We do not agree with Whistleman that the language of two other statutes shows the legislature intended to exclude computer disks in Wis. Stat. § 948.12. Whistleman first points to the definition of "data" in Wis. Stat. § 943.70(l)(f) which provides:

Computer crimes. (1) Definitions. In this section:
(f) "Data" means a representation of information, knowledge, facts, concepts or instructions that has been prepared or is being prepared in a formalized manner and has been processed, is being processed or is intended to be processed in a computer system or computer network. Data may be in any form including computer printouts, magnetic storage media, punched cards and as stored in the memory of the computer. Data are property. (Emphasis added by Whistleman.)

This definition is used in § 943.70(2)(a), which proscribes modification, destruction, theft, and other conduct regarding data, computer programs, and supporting documentation. According to Whistleman, the definition of "data" in § 943.70(l)(f) shows the legislature specifically refers to "data stored in the memory of a computer" when it intends to cover that. But the legislature's decision to specifically define technical terms in a statute covering computer crimes does not have a bearing on what the legislature intended in § 948.12, which has a completely different subject: the possession of child pornography.

¶ 11. The second statute Whistleman refers us to — Wis. Stat. § 948.05(lm) — concerns the sexual exploitation of children and therefore may be considered related to Wis. Stat. § 948.12. Section 948.05(lm) provides:

(lm) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes or possesses with intent to sell or distribute, any undeveloped film, photographic nega-five, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct is guilty of a Class C felony if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years. (Emphasis added by Whistle-man.)

¶ 12. Whistleman contends that because the legislature in Wis. Stat. § 948.05(lm) used the broader term "other reproduction," it intended by the modifier "pictorial" in Wis. Stat. § 948.12 to exclude computer disks. However, we see no indication that the addition of "pictorial" conveys this intent. Rather, we think the use of "pictorial" in § 948.12 but not in § 948.05(lm) is due simply to a different word order: in § 948.05(lm) "sound recording" directly precedes "or other reproduction," while in § 948.12 "or audio recording" directly follows "other pictorial reproduction." In other words, "other reproduction" in § 948.05(lm) is not modified by "pictorial" because one of the preceding items is not related to producing visual images. In contrast, all the items preceding "or other pictorial reproduction" in § 948.12 relate to producing visual images, as do Whistleman's computer disks.

¶ 13. We are satisfied that the language of Wis. Stat. § 948.12 conveys the legislature's intent to penalize possession of computer disks that produce visual images on a computer screen of children engaged in sexually explicit conduct, assuming the other conditions of the statute are met. We therefore reverse the trial court's order excluding the prints made of those screen images and remand for further proceedings.

By the Court. — Order reversed and cause remanded.

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

       The complaint also charged Whistleman with other felonies which were resolved by a plea agreement and are not relevant to this appeal.

       The investigating officer testified that a "zip-disk drive" is a floppy disk that is thicker and holds more material than a regular computer disk.

       After the preliminary hearing, but before the motion in limine, Whistleman filed a motion to dismiss Count II of the Information, one of the four charges under Wis. Stat. § 948.12, on the ground that the evidence produced at the preliminary examination did not support a finding of probable cause. The ground for this motion was essentially the same as that for the motion in limine — that the testimony did not establish the photographs were found at Whistleman's residence and the term "pictorial reproductions" did not include the computer disks. The court denied the motion to dismiss for reasons not relevant to this appeal and did not reach the issue of the construction of § 948.12.

       Whistleman contends the appeal is not timely, but we conclude it is. The relevant order for purposes of the appeal was not the oral ruling made by the court after hearing argument on August 7, 2000, but the written order entered on October 20, 2000, after presentation of the officer's testimony.

       Wisconsin Stat. § 943.70(2)(a) provides:
      (2) Offenses Against Computer Data and Programs, (a) Whoever wilfully, knowingly and without authorization does any of the following may be penalized as provided in par. (b):
      1. Modifies data, computer programs or supporting documentation.
      2. Destroys data, computer programs or supporting documentation.
      3. Accesses data, computer programs or supporting documentation:'
      4. Takes possession of data, computer programs or supporting documentation.
      5. Copies data, computer programs or supporting documentation.
      6. Discloses restricted access codes or other restricted access information to unauthorized persons.

       Although the trial court concluded Wis. Stat. § 948.12 should be strictly construed because it is a criminal statute, Whistleman does not make that argument. We observe that the rule of strict construction of a criminal statute does not apply when the legislature's intent is unambiguous. State v. Kittilstad, 231 Wis. 2d 245, 262, 603 N.W.2d 732 (1999).


author: FINE, J.

text:
    Ricky D. Stephenson, Individually and as the Personal Representative for the Estate of Kathy M. Stephenson, Plaintiff-Appellant, v. Universal Metrics, Inc., Ohio Casualty Insurance Company and West American Insurance Company, Defendants-Respondents, John H. Kreuser and Sentry Insurance, a mutual company, Defendants-Co-Appellants, American Family Mutual Insurance Company, Defendant.
    Court of Appeals

      No. 00-1947.

      Submitted on briefs June 5, 2001. —
    Decided July 24, 2001.

    2001 WI App 173
    (Also reported in 633 N.W.2d 707.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael L. Bertling of McLario, Helm & Bertling, S.C., Menomonee Falls.
    On behalf of the defendants-co-appellants, the cause was submitted on the brief of James M. Fredericks and Patrick S. Nolan of Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee.
    On behalf of the defendant-respondent, West American Insurance Company, the cause was submitted on the briefs of Philip C. Reid of Cook & Franke S.C., Milwaukee.
    On behalf of the defendant-respondent, Universal Metrics, Inc., the cause was submitted on the brief of Mark J. Mingo and Karen W. Moore of Mingo & Yankala, S.C., Milwaukee.
    Before Wedemeyer, PJ., Fine and Schudson, J.J.

       Petition to review filed.

   FINE, J.

¶ 1. Ricky D. Stephenson, individually and as personal representative of the estate of his wife Kathy M. Stephenson, and Sentry Insurance and its insured John H. Kreuser appeal from a judgment that dismissed all claims against Universal Metrics, Inc., and its insurance carrier West American Insurance Company. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2. As we noted in an earlier decision, Stephenson v. Universal Metrics, Inc., 2001 WI App 128, ¶¶ 1-4, 246 Wis. 2d 450, 630 N.W.2d 767, Kathy Stephenson died because while driving her car she was hit by a drunk driver. The drunk driver, Michael T. Devine, who also died as a result of the crash, was an employee of Universal Metrics. He got drunk, very drunk, at a pre-Christmas party sponsored by Universal Metrics at the Silver Spring Country Club. Indeed, after the accident he had a blood-alcohol level of .338, more than three times the highest lawful blood-alcohol concentration for drivers of less than .10. Wis. Stat. §§ 340.01(46m) and 346.63. Stephenson claimed that Kreuser volunteered to drive Devine home but did not do so. Although the trial court ruled that Wisconsin's liquor-provider immunity statute, Wis. Stat. § 125.035, precluded claims against Universal Metrics and West American Insurance, the trial court held that Kreuser was not immune for the alleged breach of the duty he had assumed voluntarily, namely to drive Devine home. Stephenson, 2001 WI App 128 at ¶ 5. We affirmed. We did not, however, address other claims asserted against Universal Metrics and West American Insurance. Stephenson claims that Universal Metrics and its insurer West American are liable for both Kreuser's alleged breach of the duty he assumed to drive Devine home, and for damages caused by Devine's drunk driving. We turn to these issues now.

¶ 3. The issues on this appeal were decided by the trial court on summary judgment. Summary judgment is used to determine whether there are any disputed facts that require a trial, and, if not, whether a party is entitled to judgment as a matter of law. Wis. Stat. Rule 802.08(2); U.S. Oil Co., Inc. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 86, 440 N.W.2d 825, 827 (Ct. App. 1989). Of course, "summary judgment is a drastic remedy and should not be granted unless the material facts are not in dispute, no competing inferences can arise, and the law that resolves the issue is clear." Lecus v. American Mut. Ins. Co., 81 Wis. 2d 183, 189, 260 N.W.2d 241, 243 (1977). Moreover, we must look at the facts in a light most favorable to the party opposing summary judgment. Lambrecht v. Kaczmarczyk, 2001 WI 25, ¶¶ 12, 23, 241 Wis. 2d 804, 812, 815, 623 N.W.2d 751, 758-759. Our review of a trial court's grant of summary judgment is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987).

¶ 4. The trial court held that Wis. Stat. § 125.035 barred claims against Universal Metrics and West American Insurance in connection with Kathy Stephenson's death at Devine's hand. That section provides, as material here:

Civil liability exemption: furnishing alcohol beverages. (1) In this section, "person" has the meaning given in s. 990.01(26).
(2) A person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person.

Wisconsin Stat. § 990.01(26) defines "person" to "include [] all partnerships, associations and bodies politic or corporate."

¶ 5. Wisconsin Stat. § 125.035(2) is a broad grant of immunity and not only prevents the imposition of liability on someone who gives a person alcohol, but also immunizes from liability those who: 1) encourage or help a person to drink, or conspire to do so; and 2) knowing that that person would drive, do nothing to either prevent that person from consuming alcohol or prevent that person from driving while drunk. Greene v. Farnsworth, 188 Wis. 2d 365, 368-369, 370-372, 525 N.W.2d 107, 108-109, 109-110 (Ct. App. 1994).

¶ 6. In Greene, a young child was severely injured when struck by a car driven by Michael J. Riekkoff. Riekkoff was drunk at the time, and the complaint alleged that William L. Farnsworth and Wayne A. Farnsworth "encouraged, advised and assisted Riekkoff to consume alcoholic beverages over the nine-hour period" they went from tavern to tavern. Id., 188 Wis. 2d at 369, 525 N.W.2d at 108. Greene noted that no matter how phrased, the plaintiffs' theories of liability arose "out of the Farnsworths' act[s] of providing Riekkoff with alcoholic beverages" and that the statute "specifically grants immunity 'from civil liability arising out of the act of procuring alcohol ... or giving away alcohol beverages.. . .'" Id., 188 Wis. 2d at 372, 525 N.W.2d at 110 (emphasis by Greene). Thus, the underlying theory of liability is irrelevant as long as the liability sought to be imposed arises out of the act of providing alcoholic beverages. Greene noted that there was no way to "distinguish between the underlying behavior and the conspiracy and aiding and abetting causes of action" alleged by the Greenes that was consistent with the legislature's intent to immunize "[tjaverns, businesses, social hosts and drinking companions" from lawsuits "for serving alcohol based on the theory that they were part of a conspiracy to encourage intoxication and drunk driving." Ibid. Greene upheld the trial court's dismissal of the Farnsworths from the action. Id., 188 Wis. 2d at 368-370, 525 N.W.2d at 108-109.

1. Liability of Universal Metrics and West American Insurance for Kreuser's alleged breach of an assumed duty to drive Devine home.

¶ 7. In our May 15, 2001, decision in Stephenson we held that Wis. Stat. § 125.035(2) did not provide Kreuser with immunity from liability for his voluntary undertaking to drive Devine home. There are two issues here in connection with that ruling. First, whether the West American Insurance policy covering Universal Metrics provides liability coverage if Kreuser is found to be liable for a breach of the voluntary undertaking. This requires us to apply West American's policy and presents an issue of law that we, like our main task on an appeal from a summary judgment determination by the trial court, also decide de novo. See Filing v. Commercial Union Midwest Ins. Co., 217 Wis. 2d 640, 644, 579 N.W.2d 65, 66 (Ct. App. 1998). Second, whether Universal Metrics is liable for Kreuser's alleged breach of the voluntary undertaking. As we will see, these two issues are interrelated.

A. Liability of West American Insurance under its policy for the actions of Kreuser.

8. The West American policy issued to Universal Metrics promises to "pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." An "insured" is defined by the policy as including Universal Metrics's " 'employees'other than either your 'executive officers,' (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business." West American Insurance does not contend on appeal that Kreuser fits within any of the nested exceptions to the policy's definition of which employees are insureds under the policy. See Reiman Assocs., Inc. v. R/A Advertising, Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981) (matters not argued are waived). Thus, we must determine if there are genuine issues of material fact regarding whether Kreuser was acting either within the "scope of his employment" with Universal Metrics or while he was "performing duties related to the conduct" of Universal Metrics's business when he undertook to drive Devine home. If so, summary judgment was not appropriate.

¶ 9. No one disputes that the party at the Silver Spring Country Club was a Universal Metrics affair, and that Universal Metrics had the exclusive use of a room at the club. Universal Metrics provided the food, and two drink tickets, which could be used for any type of drink. Employees checked in when they arrived, and received name tags in addition to their drink tickets. The president of Universal Metrics gave a speech to the employees after dinner, and there was a company awards ceremony. Additionally, the company president circulated among the employees. One of the party's purposes was to foster good will between Universal Metrics and its employees.

¶ 10. Much of the analysis of whether an employee acts within the scope of employment focuses on the employee's intent at the time. Olson v. Connerly, 156 Wis. 2d 488, 497-501, 457 N.W.2d 479, 482-484 (1990) (sex between medical assistant at health-care clinic and physician on medical-school faculty who was assigned to clinic as part of faculty duties was not within the scope of his employment at the clinic). Thus, an employee acts within the scope of his or her employment as long as the employee is, at least, "partially actuated by a purpose to serve the employer." Id., 156 Wis. 2d at 499, 457 N.W.2d at 483. On the other hand, an employee does not act within the scope of his or her employment if the employee does something that "is different in kind from that authorized [by the employer], far beyond the authorized time or space limits [established for the employment], or too little actuated by a purpose to serve the" employer. Scott v. Min-Aqua Bats Water Ski Club, Inc., 79 Wis. 2d 316, 321, 255 N.W.2d 536, 538 (1977) (sM club employee was acting within the scope of his employment when he accidently discharged a shotgun while practicing for a show). Moreover, "[s]erving the employer need not be the sole purpose of the employee's conduct, nor need it be even the primary purpose" for the employee to be acting within the scope of the employment. Block v. Gomez, 201 Wis. 2d 795, 806, 549 N.W.2d 783, 788 (Ct. App. 1996) (sex by therapist with patient not within scope of therapist's employment so as to make therapist's employer liable under respondeat superior).

¶ 11. Kreuser was part of Universal Metrics's management. Thus, although it might be entirely logical to conclude that he agreed to drive Devine home because, as he testified at his deposition, he was just being a "nice guy," that does not end the matter. A reasonable jury could also perceive that Kreuser had at least some business purpose in offering to drive Devine home. Devine was a valued employee. Either his arrest or involvement in an accident because he was driving while drunk would not only cause him personal problems that might decrease his job efficiency, but would also cause problems for Universal Metrics because he got drunk at a company party. This was not the first time that Devine had been in an alcohol-related crash. Moreover, Kreuser knew when he offered to drive Devine home that Devine had been previously convicted of drunk driving. Although, as noted, Kreuser testified at his deposition that Devine did not appear to be drunk when Kreuser agreed to drive him home, a reasonable jury might not believe him. First, Devine's post-accident blood-alcohol level was .338, which a forensic toxicologist with the state crime laboratory testified at the Waukesha County inquest into the double fatality meant that Devine had between thirteen and seventeen drinks that evening. Second, the bartender at the Universal Metrics party ■ that night testified at the inquest that when Kreuser agreed to drive Devine home, Devine was so drunk that she could not understand what he was saying. In light of all this, a reasonable jury could conclude that Kreuser was, in the words of Olson quoted above, at least "partially actuated by a purpose to serve the employer" in offering to drive Devine home. Olson, 156 Wis. 2d at 499, 457 N.W.2d at 483.

¶ 12. Applying to this case the first of the two additional factors discussed in Scott, whether what the employee did was "different in kind from that authorized by the employer," Scott, 79 Wis. 2d at 321, 255 N.W.2d 538, a reasonable jury could conclude that driving Devine home was not something that Universal Metrics would have forbidden had Kreuser asked first. Indeed, the jury could conclude that Kreuser was acting consistent with company policy. First, as we have seen, Kreuser was part of management. Second, the president of Universal Metrics testified in his deposition that if he had been aware that someone at the party was drunk, "an offer would have been made" to drive that person home. Third, Kreuser had driven Devine home from a company party once before because Devine had too much to drink.

¶ 13. Turning to the second of the two additional factors discussed by Scott, whether what the employee did was "beyond the authorized time or space limits" for the employment, ibid., a reasonable jury could conclude that Kreuser's offer to drive Devine was made on what was essentially company "time" and within company "space," albeit after normal business hours and away from the company's physical plant.

¶ 14. Finally, although we discussed earlier the third Scott factor, the employee's intent, ibid., we are mindful that a question of intent can rarely be resolved by the court as a matter of law. Lecus, 81 Wis. 2d at 190, 260 N.W.2d at 244. Additionally, whether an employee acts within the scope of his or her employment is generally a fact issue to be decided by a jury. Desotelle v. Continental Cas. Co., 136 Wis. 2d 13, 26-27, 400 N.W.2d 524, 529 (Ct. App. 1986). Accordingly, we believe that it is a jury question whether Kreuser was acting within the scope of his employment at Universal Metrics when he agreed to drive Devine home.

¶ 15. As noted earlier, the West American policy also provides liability coverage for acts of Universal Metrics's employees committed while the employees "are performing duties related to the conduct of [Universal Metrics's] business." Kreuser was at the Universal Metrics party because he was part of Universal Metrics's management. And, as we have seen, the party had business as well as social purposes; the business of an enterprise extends beyond the bare money-making activities of taking, processing, and selling goods or services. We believe, as with the scope-of-employment issue discussed above, and for the reasons already discussed, that it is also a jury question whether Kreuser was doing something related to the business of Universal Metrics when he offered to drive Devine home.

B. Liability of Universal Metrics for the actions of Kreuser.

¶ 16. An employer is vicariously liable for torts that an employee commits while the employee is acting within the scope of his or her employment. Scott, 79 Wis. 2d at 320, 255 N.W.2d at 538. For the reasons we have already discussed, it is for a jury to decide whether Kreuser was acting within the scope of his employment at Universal Metrics when he agreed to drive Devine home, but did not.

¶ 17. We reverse the trial court's grant of summary judgment dismissing the claims of Stephenson, Kreuser, and Sentry against Universal Metrics and West American Insurance in connection with Kreuser's undertaking to drive Devine home.

2. Liability of Universal Metrics for the actions of Devine under the doctrine of respondeat superior.

¶ 18. Stephenson argues that Universal Metrics is responsible for Devine's negligence in drinking, driving, and crashing into Kathy Stephenson's car because, Stephenson contends, Devine was acting within the scope of his employment at each of those times. He cites authorities from other jurisdictions that impose liability for accidents caused by drunken employees on their way home from company-sponsored events where liquor was served. This argument, however, ignores Wis. Stat. § 125.035(2) and its broad grant of immunity. For the reasons already discussed above, Universal Metrics is immune from civil liability for doing anything that either encouraged Devine to drink or failed to stop him from either drinking or driving while drunk. Greene, 188 Wis. 2d at 368-369, 370-372, 525 N.W.2d at 108-109, 109-110. Moreover, an employer is not liable under the doctrine of respondeat superior for injuries caused by an employee's negligent driving either to and from work or to and from some company-sponsored event, even when — as it was not here — attendance is required unless the employer exercises control over the method or route of travel. DeRuyter v. Wisconsin Elec. Power Co., 200 Wis. 2d 349, 354-362, 546 N.W.2d 534, 537-540 (Ct. App. 1996), aff'd by an equally divided court, 211 Wis. 2d 169, 565 N.W.2d 118 (1997).

¶ 19. We affirm the trial court's dismissal of Stephenson's claims, based on respondeat superior, seeking to hold Universal Metrics liable for Devine's drunk driving.

3. Liability of Universal Metrics for its failure to prevent Devine from driving while drunk.

¶ 20. Stephenson asserts various theories under which he contends that Universal Metrics had a duty to ensure that Devine would not hurt others, and argues that these trump Wis. Stat. § 125.035(2). We disagree.

¶ 21. First, he proffers Restatement (Second) óf Torts § 317 (1964), which recognizes that an employer has a duty to exercise "reasonable care so to control" the employee while the employee is "acting outside the scope of his employment as to prevent him from .. . conducting himself as to create an unreasonable risk of bodily harm" to others if the employee is on the employer's premises. But, of course, Devine did not cause harm to anyone at the party, and it was only after he left the party that he killed Kathy Stephenson by driving while drunk. Thus, § 317 of the Restatement is not applicable.

¶ 22. Second, Stephenson also cites out-of-state cases that impose liability for alcohol-related accidents caused by employees who drank while on company premises. But, as we have seen, Wis. Stat. § 125.035(2) grants immunity from liability predicated on letting someone else drive while drunk. Greene, 188 Wis. 2d at 368-369, 370-372, 525 N.W.2d at 108-109, 109-110. As Green tells us, "[i]n abolishing liability for those who supply alcohol to adults, the legislature clearly intended to completely immunize such persons from all civil liability, regardless of the number of people involved or the particular label used by artfully drafted pleadings." Id., 188 Wis. 2d at 372-373, 525 N.W.2d at 110. We must accept the law as it is. See id., 188 Wis. 2d at 373, 525 N.W.2d at 110.

¶ 23. We affirm the trial court's dismissal of Stephenson's claims, based on all the other theories seeking to hold Universal Metrics liable for Devine's drunk driving.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

       John H. Kreuser and his insurance carrier, Sentry Insurance, only discuss in their appellate briefs the liability of West American Insurance for Kreuser's undertaking to drive Michael T. Devine home, and not the liability of Universal Metrics. This is pointed out by the brief submitted to us by West American, and is not controverted in the .Kreuser/Sentry response brief. Stephenson, however, argues that Universal Metrics is liable as Kreuser's employer under respondeat superior. Thus, we consider the liability of both Universal Metrics and West American in connection with Kreuser's undertaking to drive Devine home.

       RestatemeNT (SeCond) of ToRts § 317 (1964), provides:
      Duty of Master to Control Conduct of Servant.
      A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
      (a) the servant
      (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
      (ii) is using a chattel of the master, and
      (b) the master

        (i) knows or has reason to know that he has the ability to control his servant, and
      (ii) knows or should know of the necessity and opportunity for exercising such control.

       In an undeveloped and amorphous argument, Stephenson also contends that West American Insurance provides coverage for Devine's drunk driving. As we have seen, however, coverage for employees is "only for acts within the scope of their employment by [Universal Metrics] or while performing duties related to the conduct of [Universal Metrics's] business." Moreover, the policy excludes liability predicated on the "use ... of any ... auto ... operated by ... any insured." Stephenson does not explain, beyond mere conclusory arguments, how or why De-vine either falls within the policy's coverage or is not excluded by the exclusion; indeed, he does not even discuss the policy's language. We thus do not further consider Stephenson's contentions on this point. See Barakat v. Department of Health & Social Servs., 191 Wis. 2d 769, 786, 530 N.W.2d 392, 398-399 (Ct. App. 1995) (appellate court need not consider "amorphous and insufficiently developed" arguments); see also Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 801, 546 N.W.2d 424, 430 (1996) (only issues that have merit need be discussed).