author: NETTESHEIM, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Peter J. Schaab, Defendant-Respondent.
    Court of Appeals

      No. 99-2203-CR.

      Submitted on briefs May 18, 2000.

    Decided August 9, 2000.

    2000 WI App 204
    (Also reported in 617 N.W.2d 872.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael G. Artery, of Michael G. Artery and Associates of Delavan.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   NETTESHEIM, J.

¶ 1. The State appeals from a circuit court order affirming a magistrate's refusal at a preliminary hearing to bind over Peter J. Schaab on a charge of bail jumping. The State argues that the evidence adduced at the preliminary hearing demonstrated probable cause that Schaab had intentionally failed to comply with a term of his bond pursuant to Wis. Stat. § 946.49(l)(b) (1997-98). We disagree. We affirm the order dismissing the complaint.

BACKGROUND

¶ 2. The relevant facts are not disputed. On October 6, 1998, Schaab was charged with various felony and misdemeanor charges. On October 15, Schaab was released on bond with a condition that he have no contact with various individuals, including Christopher Krerowicz. On October 30, this condition of bond was modified to allow Schaab to have "incidental contact at work" with Krerowicz. At the time of this modification, both Schaab and Krerowicz worked at Shoney's restaurant. On January 6, 1999, the State filed the information which charged Schaab with two felonies and one misdemeanor. On February 26, Schaab pled guilty to one of the felonies and the other two charges were dismissed and read in. Sentencing was scheduled for April 15. Schaab remained at liberty under the existing bond conditions, including the conditional "no contact" provision regarding Krerowicz.

¶ 3. On March 25,1999, Detective David Fladten of the Walworth County Sheriffs Department was present at Shoney's for purposes of obtaining Krerowicz's address. While there, Fladten observed two men sitting in a booth in the restaurant. Fladten did not recognize either of the men. While Fladten watched, the men exited the restaurant together and stood near the open door of a car. Fladten spoke with the manager of the restaurant who stated that the two men were Schaab and Krerowicz. Later, Fladten reported this information to the district attorney's office. As a result, Fladten learned of the condition of bond in Schaab's pending case.

¶ 4. The following day, Fladten contacted Schaab at the Sweet Aroma restaurant where Schaab was then working. During this conversation, Fladten learned that Schaab was no longer working at Shoney's. Fladten asked Schaab about his contact with Krer-owicz at Shoney's the previous day. Schaab admitted to the contact but stated that he believed he could have contact with Krerowicz at work. Schaab also explained that both his mother and sister worked at Shoney's and that he had occasional contact with them there. Schaab stated that when Fladten saw him with Krerowicz, he was at Shoney's to pick up some keys from his mother.

¶ 5. Based on Fladten's investigation and observations, the State charged Schaab with bail jumping by intentionally failing to comply with a condition of his bond while released on a felony charge pursuant to Wis. Stat. § 946.49(l)(b). The ensuing preliminary hearing established the facts we have just recited. At the close of the evidence, the magistrate questioned whether the "at work" language in the bond referred to contact at the location of Krerowicz's work or contact occasioned by the activity of working. The State responded that the phrase was intended to cover the latter situation, meaning that Schaab was permitted to contact Krer-owicz only while Schaab was working at Shoney's. The State said that this interpretation was supported by language of the bond condition when read in the context it was created. The magistrate disagreed with the State'.s interpretation. The magistrate held that the language on its face was broad enough to take in the contact demonstrated by the facts of the case and that the evidence demonstrated that Schaab's contact with Krerowicz was incidental. Based on that finding, the magistrate concluded that the State had failed to establish probable cause and dismissed the complaint.

¶ 6. The State brought a motion in the circuit court challenging the magistrate's ruling. After reviewing the preliminary hearing evidence, the circuit court affirmed the magistrate's finding that the evidence did not establish probable cause. The State appeals to this court.

STANDARD OF REVIEW

¶ 7. Our review of a circuit court's review of a magistrate's probable cause determination at a preliminary hearing is de novo. See State v. Johnson, 231 Wis. 2d 58, 66, 604 N.W.2d 902 (Ct. App.), review denied, 231 Wis. 2d 375, 607 N.W.2d 291 (Wis. Dec. 20, 1999) (No. 98-2881-CR). At the preliminary hearing, probable cause is satisfied "when there exists a believable or plausible account of the defendant's commission of a felony." State v. Dunn, 121 Wis. 2d 389, 398, 359 N.W.2d 151 (1984). In reviewing a probable cause determination, we look to see whether there was any substantial ground for the exercise of the magistrate's judgment. See State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 629, 317 N.W.2d 458 (1982).

ANALYSIS

¶ 8. The State contends that the magistrate failed to properly apply the test outlined in Dunn. The State reasons that the evidence at the preliminary hearing supported a reasonable inference that Schaab committed a felony, namely bail jumping, by failing to comply with the "no contact" provision in the bond.

¶ 9. The three elements of bail jumping were set forth in State v. Dawson, 195 Wis. 2d 161, 170-71, 536 N.W.2d 119 (Ct. App. 1995):

[B]efore a defendant may be found guilty of the offense of bail jumping under § 946.49(1), STATS., the State must prove . . . the following three elements: first, that the defendant was either arrested for, or charged with, a felony or misdemeanor; second, that the defendant was released from custody on a bond, under conditions established by the trial court; and third, that the defendant intentionally failed to comply with the terms of his or her bond, that is, that the defendant knew of the terms of the bond and knew that his or her actions did not comply with those terms.

¶ 10. Only the third element is at issue in this case. At the preliminary hearing, the magistrate spoke to this element, asking the State to clarify the meaning of the "at work" bond condition. The State argued that the meaning of the phrase should be measured from the "language on its face" and the "context in which the bond condition was ordered." Based on this approach, the State reasoned that the condition allowed Schaab to contact Krerowicz only when Schaab was working at Shoney's. Once Schaab left his employment at Shoney's, the State contends that any contact with Krerowicz was forbidden, functionally reinstating the absolute bar of any contact with Krerowicz under the original bond condition.

¶ 11. The magistrate, however, held that a reasonable reading of the "at work" provision covered contact not only when both Schaab and Krerowicz were working at Shoney's, but also when only Krerowicz was working there, so long as the contact was incidental. Based on this reading of the "incidental contact at work" provision, the magistrate found:

[There] is no fact and no record to indicate the contact was anything but incidental. The testimony is that Schaab came there to get keys from his mother, he did have contact with [Krerowicz] on the premises of Shoney's; it is [Krerowicz's] place of employment. And that, I think, ... is within the context of at work.

¶ 12. The State disputes the magistrate's interpretation of the bond condition. The State likens the bond condition to a contract and urges us under contract law to look to the intent of the parties when construing the language of the bond. Under this approach, the State structures the following argument. The original bond condition barred Schaab from any contact with Krerowicz. Since both Schaab and Krer-owicz were then working at Shoney's, Schaab's continued employment would place him in violation of this condition. So Schaab obtained a relaxation of this condition to allow incidental contact with Krerowicz while both were working at Shoney's. Since Schaab was no longer employed at Shoney's at the time of the contact in this case, the purpose of the modified bond condition no longer existed. Thus, when Schaab encountered Krerowicz at Shoney's on March 25,1999, he was in violation of the bond condition and he knew of such violation. At a minimum, the State contends that it has established a competing inference of such violation under Dunn.

¶ 13. We have no quarrel with the State's interpretation of the historical record in this case. However, this begs the threshold question as to the scope of the prohibition set out in the language of the bond condition. We must first answer this question before we get to the Dunn level of the discussion. The Dunn test allows for the drawing of reasonable inferences from the facts adduced at a preliminary hearing, and Dunn favors the State when the facts reveal competing reasonable inferences. See Dunn, 121 Wis. 2d at 398. But we do not read Dunn to allow a magistrate to bind a defendant over for trial on a bail jumping charge where the defendant's conduct does not violate the terms of the bond. This is so even though the defendant may have subjectively believed that the conduct was a violation of the bond condition.

¶ 14. This is why the contract approach urged by the State is unsatisfactory. The cases cited by the State address the liability of a surety where the government is seeking forfeiture of the bail. See Allied Fidelity Ins. Co. v. State, 664 P.2d 1322 (Wyo. 1983); State v. Braun, 100 Wis. 2d 77, 301 N.W.2d 180 (1981). Under those circumstances, we can well understand the contract law approach taken by those courts. But here we are not concerned with a surety's liability. Rather, the issue is the meaning and scope of a bond condition that forms the basis for a criminal charge. Thus, the threshold question is not whether the evidence plausibly establishes that Schaab believed that he was violating the condition when he contacted Krerowicz. Rather, the question is whether the prohibition in the bond condition itself covered Schaab's conduct in this case.

¶ 15. The bond condition permitted Schaab to have incidental contact with Krerowicz "at work." We agree with the magistrate that this language is so broadly phrased that it extended not only to contact between Schaab and Krerowicz when Schaab was working at Shoney's, but also to such contact when only Krerowicz was working there. Thus, the question narrows to whether the contact was incidental. And on this point, the evidence is not in dispute. The evidence did not contend or reasonably suggest that Schaab prearranged his encounter with Krerowicz. To the contrary, the evidence established, and the magistrate found, that Schaab went to Shoney's to pick up keys from his mother who worked there. This evidence established that the contact with Krerowicz was incidental and there is no reasonable inference to the contrary.

¶ 16. Even though the State receives the benefit of competing inferences under Dunn, it still carries the burden of proof at a preliminary hearing. The State's case falters on this latter point because no evidence, nor any reasonable inferences drawn therefrom, plausibly established that Schaab's conduct violated the language recited in the bond condition.

CONCLUSION

¶ 17. We agree with the magistrate's determination that the State failed to establish probable cause at the preliminary hearing. We affirm the circuit court order upholding the magistrate's ruling and dismissing the criminal complaint.

By the Court. — Order affirmed.

       All references to the Wisconsin Statues are to the 1997-98 version.

       The complaint alleged a further count of bail jumping based upon Schaab's alleged failure to provide the clerk of courts with written notice of his change of address. That matter is not before us.

       The magistrate also expressed doubt about "whether or not the defendant has had sufficient notice to know what behavior was prohibited. ..." However, we do not read the magistrate's ultimate ruling to rest on this ground. Rather, the magistrate determined that Schaab's contact with Krerowicz was incidental and therefore not a violation of the bond condition.

       Even if'Schaab's contact with Krerowicz were incidental, the State argues that Schaab's conversing with Krerowicz and exiting the restaurant with him was not incidental. We view this as too fine a splitting of hairs and too narrow a view of the concept of "contact." The bond condition allowed for contact between Schaab and Krerowicz. Contact is defined in part as "an establishing of communication with someone" and "to get in communication with." WEBSTER'S COLLEGIATE DICTIONARY 249 (10th ed. 1997).


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    Michael F. Dubis, Trustee in Bankruptcy, Plaintiff-Appellant, v. General Motors Acceptance Corporation, Defendant-Respondent.
    Court of Appeals

      No. 99-2638.

      Submitted on briefs August 4, 2000.

    Decided August 9, 2000.

    2000 WI App 209
    (Also reported in 618 N.W.2d 266.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael F. Dubis of Waterford.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Phillip S. Caruso of Brookfield.
    Before Brown, P.J., Nettesheim and Snyder, JJ.
   SNYDER, J.

¶ 1. Michael F. Dubis, as trustee in bankruptcy for Gregg Anderson, appeals from an order granting summary judgment in favor of General Motors Acceptance Corporation (GMAC). The circuit court determined that GMAC held a perfected security interest in Anderson's vehicle against the trustee. Dubis argues on appeal that the security interest was rendered invalid because, pursuant to WlS. Stat. § 409.103(2)(b) (1997-98), Anderson "registered" his vehicle with the state and four months had passed during which time GMAC failed to reperfect its security interest. We conclude that GMAC's security interest remained perfected because § 409.103(2)(b) registration requires a debtor to obtain a certificate of title for a vehicle, not simply a certificate of motor vehicle registration. We affirm the circuit court's order.

BACKGROUND

¶ 2. The facts are undisputed. Anderson purchased a 1995 Mitsubishi automobile in South Dakota on June 4, 1996, and financed the purchase through GMAC. At the time, Anderson was a resident of South Dakota and a South Dakota certificate of title was issued showing GMAC as lienholder. In December 1997, Anderson moved to Wisconsin and registered his vehicle with the Department of Transportation (DOT). The DOT, however, did not issue him a certificate of title, only a "certificate of vehicle registration" and license plates.

¶ 3. On June 19, 1998, Anderson filed for bankruptcy in the United States District Court for the Eastern District of Wisconsin. Under 11 U.S.C. § 544 of the Bankruptcy Code, the bankruptcy trustee has priority over claims, liens or interests which are not fully perfected at the time the bankruptcy petition is filed. Dubis claimed that GMAC's security interest in Anderson's vehicle was no longer perfected because Anderson had "registered" the vehicle in Wisconsin consistent with WlS. Stat. § 409.103(2)(b). As such, Dubis sought a court determination that the lien was invalid and that the trustee could preserve the lien for the benefit of the estate under 11 U.S.C. § 551.

¶ 4. In the Bankruptcy Court's order, Judge Russell A. Eisenberg characterized the litigation as "one of an epidemic of identical adversary proceedings all involving the same legal issue: Under [WlS. Stat.] § 409.103(2)(b) does 'registration' require the owner of a motor vehicle to obtain or to seek to obtain a title for the motor vehicle?" The court then directed the parties to resolve this issue in state court because of the issue's grounding in state law.

¶ 5. In November 1998, the parties sought a declaratory action before the circuit court. Dubis then filed a summary judgment motion. The court ruled in favor of GMAC and Dubis appeals.

DISCUSSION

¶ 6. We review the circuit court's grant of summary judgment using the same methodology as the circuit court. See City of Beaver Dam v. Cromheecke, 222 Wis. 2d 608, 613, 587 N.W.2d 923 (Ct. App. 1998). That methodology is well known and we need not repeat it here except to observe that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id.; Wis. Stat. § 802.08(2). Because there are no material facts at issue in this case, we must determine which party is entitled to judgment as a matter of law. See Gorton v. Hostak, Henzl & Bichler, S.C., 217 Wis. 2d 493, 501-02, 577 N.W.2d 617 (1998).

¶ 7. Here, the issue presents a question of statutory interpretation which we review de novo. See id. at 502. Statutory interpretation begins with the language of the statute itself. See Armor All Prods. v. Amoco Oil Co., 194 Wis. 2d 35, 50, 533 N.W.2d 720 (1995). If the language is clear and unambiguous on its face, we merely apply that language to the facts at hand. See Peter B. v. State, 184 Wis. 2d 57, 71, 516 N.W.2d 746 (Ct. App. 1994). Although we will not look beyond the statute's plain meaning, we do consider its parts in relationship to the whole statute and to related sections. Cf. Elliott v. Employers Mut. Cas. Co., 176 Wis. 2d 410, 414, 500 N.W.2d 397 (Ct. App. 1993). Where the language of a statute is ambiguous, we may then consider legislative intent and collateral sources, including "the scope, history, context, subject matter and object of the statute." Armor All Prods., 194 Wis. 2d at 50 (citation omitted).

¶ 8. The perfection of a security interest in a motor vehicle is governed by Wis. STAT. § 342.19. See State v. Frankwick, 229 Wis. 2d 406, 413, 599 N.W.2d 893 (Ct. App. 1999). Relevant to our case are the following provisions:

(1) ... a security interest in a vehicle of a type for which a certificate of title is required is not valid against creditors of the owner or subsequent transferees or secured parties of the vehicle ■ unless perfected as provided in this chapter.
(6) If a vehicle is subject to a security interest when brought into this state, s. 409.103 (1), (2) and (3) state the rules which apply to determine the validity and perfection of the security interest in this state.

Section 342.19.

¶ 9. Wisconsin Stat.' §409.103(2) addresses security interests in titled goods transferred to Wisconsin and provides in part:

(2) Certificate of title, (a) This subsection applies to goods covered by a certificate of title issued under a statute of this state or of another jurisdiction under the law of which indication of a security interest on the certificate is required as a condition of perfection.
(b) Except as otherwise provided in this subsection, perfection and the effect of perfection or nonperfection of the security interest are governed by the law (including the conflict of laws rules) of the jurisdiction issuing the certificate until 4 months after the goods are removed from that jurisdiction and thereafter until the goods are registered in another jurisdiction, but in any event not beyond surrender of the certificate. After the expiration of that period, the goods are not covered by the certificate of title within the meaning of this section. (Emphasis added.)

Stated another way, a perfected security interest on an original certificate of title remains perfected for at least four months after property is moved to Wisconsin, unless the certificate is surrendered. After four months, the security interest remains perfected until registration occurs.

¶ 10. The sticking point here is the term "registered." Dubis contends that registration involves the administrative process of filing an application and submitting fees with the DOT in exchange for a certificate of registration and vehicle license plates. See Wis. STAT. ch. 341. In this sense, registration does not require obtaining a certificate of title from the state. For support, Dubis cites Patti v. Barnett Bank (In re Hartberg), 25 U.C.C. Rep. Serv. 1429 (1979), which addresses Wis. Stat. § 409.103(2)(b).

¶ 11. GMAC, on the other hand, looks at registration from a commercial law perspective, noting that Wis. Stat. § 409.103(2)(b) is a word-for-word recasting of § 9-103(2)(b) of the Uniform Commercial Code (U.C.C.). GMAC contends that in the context of commercial law, registration requires issuance of a certificate of ownership and that any law relating to vehicle registration is inapposite. GMAC points out that this is the approach taken by a majority of the courts and is more commercially sound.

¶ 12. We begin our analysis by reviewing Wis. Stat. ch. 409. We first observe that para. (2)(a) of Wis. Stat. § 409.103 speaks in terms of certificates of title as to "goods," and para. (2)(b) refers to certificates of title, the removal of "goods" from other jurisdictions and the subsequent registration of those goods. The language in para. (2)(b) makes clear that registration relates to "goods" generally and that this statute is not intended to exclusively cover motor vehicles. Second, we note that within ch. 409, the only reference to registration is the singular use of "registered" in Wis. Stat. § 409.103(2)(b). As such, where para. (2)(b) speaks of goods in the original jurisdiction having a certificate of title, being "registered in another jurisdiction" suggests that the goods will be retitled in the other jurisdiction.

¶ 13. In sum, because Wis. Stat. § 409.103(2)(a) and (2)(b) refer to certificates of title and to "goods," it seems unlikely that the drafters intended the statute's one reference to registration to be narrowly focused on motor vehicle registration. Thus, given the context in which the term "registered" is used in § 409.103(2)(b), we find support for GMAC's position that the term entails obtaining a certificate of title for goods rather than a certificate of vehicle registration.

¶ 14. Within Wisconsin's vehicle registration laws, registration takes on a different meaning. Wisconsin Stat. § 341.08 sets forth the registration application process for vehicles. Pertinent to this case is § 341.08(3), which states:

The department may accept an application and complete registration of a vehicle when the evidence of ownership is held by a nonresident lienholder or for other reason is not immediately available and the department is satisfied as to ownership of the vehicle. The title fee shall be collected at the time of registration and retained even though certificate of title is not issued.

Section 341.08(3) describes what occurred in Anderson's case. He applied for the registration of his vehicle while nonresident lienholder GMAC held the title to the vehicle. The DOT completed Anderson's registration, satisfied as to the vehicle's ownership. Anderson paid the title fee at the time he registered his vehicle "even though certificate of title [was] not issued." Id. (emphasis added). Consistent with this provision, Anderson's "Certificate of Vehicle Registration" states, "NO WISCONSIN TITLE ISSUED," and informs that the registration certificate is "Not Valid for Transfer of Ownership."

¶ 15. Wisconsin Stat. § 341.08(3) works in conjunction with Wis. Stat. ch. 342, which addresses vehicle titling. WISCONSIN Stat. § 342.05(1) instructs that a vehicle owner subject to registration in Wisconsin shall apply for a certificate of title for the vehicle. Section 342.05(3) notes, however, that the certificate of title requirements do not apply "where the law expressly authorizes registration without a certificate of title." Section 341.08(3) expressly permits Anderson's registration of his vehicle without a certificate of title.

¶ 16. That registration of goods under commercial law is conceptually distinct from registration of motor vehicles under state vehicle registration laws has been illustrated by numerous courts. We review two of the cases relied upon by GMAC. In Chrysler Credit Corp. v. Religa (In re Males), 999 F.2d 607 (2nd Cir. 1993), Chrysler Credit Corporation perfected liens on two vehicles purchased by the Maleses in New Hampshire. When the Maleses moved to New York, they registered the vehicles there, acquiring state license plates and registration papers; New York, however, did not issue new certificates of title. The Maleses then filed for bankruptcy and sought to void Chrysler's liens on both vehicles. The United States Court of Appeals for the Second Circuit determined that registration under New York's statutory equivalent of U.C.C. § 9-103(2)(b) required obtaining certificates of title, not simply the administrative registration of the vehicles. See In re Males, 999 F.2d at 614. The court relied upon the rationale in Strick Corp. v. Eldo-Craft Boat Co., 479 F. Supp. 720, 725 (W.D. Ark. 1979), observing that:

We reach this result for the reason that it is a reasonable and permissible interpretation of the applicable commercial law and promotes looking "only to one place — the certificate of title — to discover prior security interests." We reach the same result as the district court in Strick Corp.:
It is the opinion of this Court that the section [U.C.C. 9 — 103(2)(b)] continues in force the perfection of a security interest noted on a foreign certificate of title until a certificate has been issued by another jurisdiction . . . [w]hen this section speaks of "registration," the Court construes the language to contemplate the issuance of an Arkansas title, not the procurement of a "non-negotiable," "non-title" registration in connection with the issuance of a vehicle license.

In re Males, 999 F.2d at 613 (citations omitted).

¶ 17. In the second case, General Motors Acceptance Corp. v. Rupp, 951 F.2d 283 (10th Cir. 1991), GMAC perfected its security interest in the debtors' Missouri vehicle and maintained possession of the certificate of title. When the debtors moved to Utah, they filed for bankruptcy and sought to sell the vehicle free of GMAC's lien. See id. at 284. The United States Court of Appeals for the Tenth Circuit held that under U.C.C. § 9-103(2)(b), the term "registered" required both vehicle registration and a certificate of title, noting that the "Utah registration certificate obtained by debtors is merely administrative, is not a certificate of ownership, and does not permit notation of liens on it." Rupp, 951 F.2d at 287.

¶ 18. We find the reasoning offered in Rupp and In re Males compelling. The term "registered" must be interpreted within its context under commercial law and the U.C.C. Critical to commercial law and secured transactions, in particular, are certificates of title because they provide notice of prior security interests. A certificate of vehicle registration, however, does not supply this function. Thus, to allow Anderson to void GMAC's security interest by obtaining a certificate of vehicle registration would send a message that "debtors (and trustees in bankruptcy) may, unilaterally and without notice to a secured first lien creditor in another state, eliminate that creditor's security interest by simply moving to [another jurisdiction] with the secured vehicle and obtaining license plates in [that jurisdiction] without obtaining a new certificate of title." In re Males, 999 F.2d at 615. Such a result, the In re Males court cautioned, would "create commercial law havoc in setting aside secured interests noted on title certificates . . . ." Id. at 614. We doubt our legislature intended such an effect under Wis. Stat. § 409.103(2)(b).

¶ 19. Finally, we consider the case Dubis describes as the "only reported Wisconsin case that either side could find which addressed this issue." That case, In re Hartberg, is a bankruptcy appeal from the United States District Court for the Eastern District of Wisconsin. In re Hartberg presents facts identical to this case. The court, interpreting Wisconsin law, concluded that the bank's lien on the debtors' vehicle was invalid because the debtors were issued a certificate of registration from the DOT and because four months had passed in which the bank had failed to perfect its lien in Wisconsin. What is missing from this case, however, is any discussion of the term "registered" within Wis. Stat. § 409.103(2)(b). While the final result in In re Hartberg certainly supports Dubis's argument, the court offers no analysis to persuade us that § 409.103(2)(b) registration entails vehicle registration, not commercial law title registration. Because the case fails to address the crux of the issue here and is not binding on this court, we conclude that the decision is inapposite.

CONCLUSION

¶ 20. We agree with GMAC that it has retained its security interest in Anderson's vehicle despite the vehicle's removal to Wisconsin and the issuance of a Wisconsin vehicle registration certificate and license plates. Given that GMAC's security interest was perfected under a South Dakota certificate of title, no certificate of title was issued by Wisconsin, and the vehicle was never "registered" in Wisconsin pursuant to Wis. Stat. § 409.103(2)(b), GMAC's security interest is therefore valid. The circuit court's order is affirmed.

By the Court. — Order affirmed.

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

       Anderson stated on his registration application that GMAC was a secured party on the vehicle.

         See, e.g., In re Aguiar, 116 B.R. 223, 224 (Bankr. D. Idaho 1990); Frank v. Norbel Credit Union (In re Murray), 109 B.R. 245, 248 (Bankr. E.D. Mich. 1989); Ford Motor Credit Co. v. Partee, 514 So. 2d 640, 644-45 (La. Ct. App. 1987); Brewton Trading Corp. v. Midland Bank & Trust Co., 454 N.Y.S.2d 510, 511 (N.Y. Sup. Ct. 1982); Strick Corp. v. Eldo-Craft Boat Co., 479 F. Supp. 720, 725 (W.D. Ark. 1979).


author: BROWN, P.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Guy R. Willett, Defendant-Appellant.
    Court of Appeals

      No. 99-2671-CR.

      Submitted on briefs June 7, 2000.

    Decided August 9, 2000.

    2000 WI App 212
    (Also reported in 618 N.W.2d 881.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Susan E. Alesia, assistant state public defender of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, assistant attorney general, and James E. Doyle, attorney general.
    Before Brown, P.J., Nettesheim and Snyder, JJ.

      Petition to review denied.

   BROWN, P.J.

¶ 1. Guy R. Willett appeals from an amended judgment that changed the sentencing structure four months after the original sentencing. The sentencing court originally held that the sentences for the three convictions which were before the court that day could not be served consecutively to a sentence Willett was to receive four days later when his probation was revoked. A third of a year later, the court was convinced that its original ruling was based on an erroneous understanding of the law and changed the three sentences so that they were consecutive to the later sentence. We agree with Willett that this modification violated the prohibition against double jeopardy because it defeated Willett's legitimate expectation of finality in the sentence. We reverse and remand with directions that the trial court amend the judgment of conviction to conform to the original judgment.

¶ 2. Willett was originally charged with two counts of arson. Pursuant to a plea agreement, Willett pled no contest to one count each of arson, negligent handling of burning materials and recklessly endangering safety, pursuant to Wis. Stat. §§ 943.02(1), 941.10(1), 941.30(1) (1997-98). The trial court imposed and stayed four years of prison and forty years of probation on the arson count and a total of fourteen years of prison on the other two counts. The prison sentences were to be served consecutively to each other, but not consecutive to another prison term that Willett was to receive four days later when his probation was revoked in another case. The trial court stated that it wanted to make the sentences consecutive to the sentence in the other case, but that it did not believe it had the authority to do so because Willett was not yet serving that sentence. The State asked the trial court, "[Wjould the court be inclined to order this be consecutive if the court thought it had the authority to do so or not?" The court responded, "If there is authority, it would be my intent it be consecutive to any probation revocation sentence. I don't believe there's the ability statutorily for that to occur." The State suggested that the court stay the sentencing order to a later date so that it would not become effective until after the other sentence had been imposed. The court declined to do so, but noted on the judgment of conviction that the "Court intends to make sentence consecutive to probation revocation — if this can occur pursuant to statute then to be served consecutive." On May 10, 1999, the State sent the court a letter calling the court's attention to State v. Thompson, 208 Wis. 2d 253, 559 N.W.2d 917 (Ct. App. 1997), under which the sentences could have been imposed consecutively to the probation revocation sentence, even though Willett's probation had not yet been revoked. At a July 14,1999 hearing, the court, over double jeopardy objections by Willett, amended the original judgment of conviction to make the sentence consecutive.

¶ 3. Relying on State v. North, 91 Wis. 2d 507, 283 N.W.2d 457 (Ct. App. 1979), Willett argues that the trial court's modification of the sentence that he had already commenced serving violated his constitutional protection against double jeopardy. The sentence originally imposed was a valid sentence Willett claims, and thus, under North, it cannot be increased at a later date. The State counters that resentencing does not per se violate double jeopardy protection; the question is whether Willett had a legitimate expectation of finality in his sentence. See United States v. DiFrancesco, 449 U.S. 117 (1980). Here, the State claims, Willett heard the trial court express its desire, at the original sentencing, that the sentences be consecutive and thus he knew there was a chance it would be modified. The State also deems significant the facts that this was a plea agreement and that the court called the second hearing rather than the State moving for it. Willett replies that our supreme court has limited DiFrancesco to its facts and questioned the scope of its holding. See State v. Martin, 121 Wis. 2d 670, 678, 360 N.W.2d 43 (1985). Additionally, while there was a plea agreement, Willett claims there was no accord on the length of the sentence.

¶ 4. Both the Wisconsin and United States Constitutions contain double jeopardy clauses, see U.S. Const, amend. V, Wis. Const, art. I, § 8, the protection of which arises in a variety of contexts, see State v. Martin, 121 Wis. 2d 670, 675, 360 N.W.2d 43 (1985). We treat them as one in our discussion because their protection is coextensive. See State v. Burt, 2000 WI App 126, ¶ 7, 237 Wis. 2d 610, 614 N.W.2d 42. Whether the guarantees provided by the double jeopardy clauses bar the trial court from effectively increasing the defendant's sentence after he or she has commenced serving it is a question of law we review de novo. See Martin, 121 Wis. 2d at 673.

¶ 5. This court recently addressed a case similar in posture to the present case. See Burt, 2000 WI App 126. There, two men were convicted as parties to a crime for robbery and attempted murder. See id. at ¶ 2. The trial court sentenced Burt and then sentenced his accomplice. See id. at ¶ 4. When the accomplice's counsel objected to the fact that his client's sentence was longer than Burt's sentence, the trial court realized that it had misspoken in sentencing Burt. See id. On that same day, the trial court called Burt back into the courtroom and explained to him that the trial court had meant to indicate that Burt's sentences were to be consecutive. See id. On appeal, Burt claimed that the harsher resentencing violated his double jeopardy protection. See id. at ¶ 6. Following DiFrancesco, we disagreed.

[W]e conclude that a defendant's interest in the finality of his or her sentence is not a significant concern when the trial court simply corrects an error in speech in its pronouncement of the sentence later in the same day. Unlike in North, where the trial court did not attempt to correct its sentencing error until over three months later, Burt did not have a legitimate expectation that [the trial court] could not correct his slip of the tongue on the day of sentencing.

Burt, 2000 WI App 126 at ¶ 12.

¶ 6. Here, the facts dictate the opposite result because Willett did have a legitimate expectation of finality. First, the State's argument that Willett knew the sentence might change is unpersuasive. Yes, Wil-lett heard the prosecutor say that he would look for authority allowing the court to impose a consecutive sentence. But Willett also heard the trial court reject the prosecutor's suggestion that the order be stayed. Further, he heard the trial court proceed to impose his sentence. Second, unlike Burt, who was resentenced on the same day, Willett had already been serving his sentence for four months when the trial court changed it from concurrent to consecutive. Third, and perhaps most important, this was not a "slip of the tongue" on the part of the trial court. Here, the trial court had an incorrect understanding of the law governing its sentencing authority. Double jeopardy prevents the State from using this error, four months later, to seek a stiffer sentence for Willett. That the trial court wanted to impose a consecutive sentence to begin with is of no moment; what the trial court actually did was impose a valid, concurrent sentence. Our reading of the transcript of the original sentencing hearing convinces this court that those proceedings fostered in Willett a legitimate expectation of finality in the sentence. The double jeopardy clause prevents the trial court from going back, four months later, to redo the sentence.

¶ 7. We remand for the trial court to enter a farther amended judgment that clearly states that the sentence commenced on noon of the day of the original pronouncement. See WlS. Stat. § 973.15(1).

By the Court. — Judgment reversed and cause remanded.

       All further references to the Wisconsin Statutes are to the 1997-98 version.

       Sentences are presumed to run concurrently unless otherwise indicated by statute or judicial decree. See State v. Coles, 208 Wis. 2d 328, 332, 559 N.W.2d 599 (Ct. App. 1997).


text:
    State of Wisconsin, Plaintiff-Appellant, v. Brad A. Raddeman, Defendant-Respondent.
    Court of Appeals

      No. 00-0143-CR.

      Submitted on briefs June 30, 2000.

    Decided August 9, 2000.

    2000 WI App 190
    (Also reported in 618 N.W.2d 258.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael E. O'Rourke, assistant district attorney.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Christopher A. Mutschler of Anderegg & Mutschler, LLP of Fond du Lac.
    Before Nettesheim, Anderson and Snyder, JJ.

      Petition to review denied.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. § 809.41(3).

   NETTESHEIM, J.

¶1. The State of Wisconsin appeals from an order dismissing a criminal complaint against Brad A. Raddeman. The complaint alleged offenses of operating a motor vehicle while intoxicated (OWI) pursuant to WlS. STAT. § 346.63(l)(a) (1997-98) and operating a motor vehicle with a prohibited alcohol concentration (PAC) pursuant to § 346.63(l)(b). Rad-deman challenged the State's dual prosecution of both offenses on due process and double jeopardy grounds. The trial court agreed with Raddeman that the dual prosecution of both offenses was fundamentally unfair in violation of his due process rights. We disagree because we read State v. Bohacheff, 114 Wis. 2d 402, 407, 338 N.W.2d 466 (1983), to already answer the question against Raddeman. We reverse the order dismissing the action and remand for further proceedings on the criminal complaint.

DISCUSSION

¶ 2. The facts are not in dispute. Following his arrest for OWI, Raddeman submitted to a blood test, which produced an alcohol concentration in excess of the legal limit. As a result, the State issued a criminal complaint alleging both OWI and PAC.

¶ 3. Raddeman responded with a motion that challenged the State's dual prosecution on double jeopardy and due process grounds. The trial court agreed with Raddeman's challenge and dismissed the criminal complaint. The State appeals.

DOUBLE JEOPARDY

¶ 4. We begin with Raddeman's double jeopardy issue. Double jeopardy protects against: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. See id. at 407. Here, Raddeman had not previously been acquitted or convicted of either charge so the first two protections afforded by double jeopardy are not implicated. Thus, the issue narrows to the third protection against double jeopardy — whether the State's dual prosecution constitutes multiple punishments for the same offense.

¶ 5. In Bohacheff, the supreme court addressed this aspect of double jeopardy protection. There, Bohacheff was dually charged with causing great bodily harm by operation of a motor vehicle while under the influence of an intoxicant and with a blood alcohol concentration of 0.1% or more pursuant to Wis. Stat. § 940.25(l)(a) and (b) (1981-82). See Bohacheff, 114 Wis. 2d at 404. Bohacheff argued that the dual prosecution violated his double jeopardy protections. See id. at 404-05. The supreme court disagreed. The court held that "the complaint does not violate double jeopardy protections because the statute subjects the defendant to only one conviction and one punishment." Id. at 405.

¶ 6. Raddeman contends, however, that this case is different from Bohacheff. He contends that the OWI and PAC charges are the "same offense" for purposes of double jeopardy because Wis. Stat. § 885.235(lg)(c) makes an alcohol concentration of 0.1 grams or more prima facie evidence of intoxication. He argues that this statutory presumption permits a fact finder to use the alcohol concentration alone as the basis for a finding of guilt on each charge. Raddeman contends that Bohacheff saved the "same offense" issue in this case for another day when the court said, "The defendant does not challenge the statutory scheme that provides for two charges and two verdicts on any other grounds." Bohacheff, 114 Wis. 2d at 417-18.

¶ 7. However, Bohacheff, speaking directly to the "same offense" implications of that case, also said:

The defendant's position of multiple punishments rests on his assertion that (l)(a) and (l)(b) constitute one offense....
Since the court determines that the legislature did not authorize two convictions (and consequently no multiple punishments), there is, of course, no need for the court to resolve the second question posited by the parties, namely, whether the two statutory provisions set forth the same offense.

Id. at 408 n.6 (emphasis added).

¶ 8. We agree that the supreme court's comment upon which Raddeman relies builds some ambiguity into the court's earlier comment that it need not address the "same offense" issue. But the fact remains that the court expressly said that the prohibition against multiple punishments rendered the "same offense" issue moot. We hold that Bohacheff has already answered the double jeopardy issue against Raddeman.

DUE PROCESS

¶ 9. Raddeman's "same offense" argument also lies at the heart of his due process challenge. As a result, he contends that the dual prosecution procedure authorized by WlS. Stat. § 346.63(l)(c) violates notions of fundamental fairness in violation of his due process rights. He argues that it is fundamentally unfair to require him to twice defend against the same charge. He fears that the multiple charges increase the risk that he will be convicted of at least one of the charges even though he has prevailed with the fact finder on the other. He also contends that the multiple charging procedure invites juror confusion. The trial court agreed with these arguments. The court dismissed the complaint and directed the State to elect a prosecution on only one of the charges.

¶ 10. We disagree with Raddeman and the trial court. We begin by observing that the statutory presumption set out in WlS. Stat. § 885.235(lg)(c) is permissive, not mandatory. See State v. Vick, 104 Wis. 2d 678, 693, 312 N.W.2d 489 (1981). As such, it does not conclusively establish that the defendant is under the influence. The burden to prove each element of OWI beyond a reasonable doubt remains with the State. See In re Winship, 397 U.S. 358, 364 (1970).

¶ 11. InBohacheff, the supreme court recognized that it was possible for a person to have an alcohol concentration of 0.1% or more, yet not be under the influence. See Bohacheff, 114 Wis. 2d at 415-16. The court added, "Nevertheless, the legislature has determined that a person who causes great bodily harm while operating a vehicle either 'under the influence' or with a .10 percent or more blood alcohol concentration shall be subject to criminal penalty." Id. at 416. The court concluded:

The legislature was concerned with punishing a single wrong — causing great bodily harm to another by drinking and driving — and tried to make it easier to do so by providing the two bases for liability. Although the legislature apparently viewed the two bases for liability as sufficiently distinct in concept to allow the prosecutor to proceed with two counts and to require the jury to bring back two verdicts, we conclude that the legislature did not intend to require two convictions, even if there were two guilty verdicts, or to impose multiple punishments. This result is fair to offenders and society.

Id. at 417 (emphasis added). Although the court uttered these remarks in the context of a double jeopardy challenge, the court nonetheless has declared that the dual prosecution procedure is fair to all concerned.

¶ 12. In Bohacheff, the supreme court also rejected any suggestion that the State should be required to make a pretrial election between the two charges. The court said:

It is apparent from the statute that in allowing the prosecutor to proceed upon a violation of both paragraphs (a) or (b) for acts arising out of the same incident and in providing for two verdicts, the legislature intended not to authorize two convictions but to ensure that the prosecutor would not be forced to elect the charge or the mode of proof before trial and risk a variance between the evidence and the charge.

Id. at 416 (emphasis added).

¶ 13. Since Wis. Stat. § 885.235(lg)(c) does not create a mandatory presumption and since Bohaeheff declares that the dual prosecution procedure set out in Wis. Stat. § 346.63(l)(c) is fair to all concerned, we reject Raddeman's due process challenge.

CONCLUSION

¶ 14. The State's dual prosecution of Raddeman for both OWI and PAC does not violate Raddeman's double jeopardy protection nor his due process rights. We reverse the order dismissing the complaint and we remand for further proceedings.

By the Court. — Order reversed and cause remanded.

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

       The complaint alleged that Raddeman was a repeat offender. Thus, Raddeman was charged with criminal offenses.


author: ROGGENSACK, J.

text:
    Dean Medical Center, S.C., Plaintiff-Respondent, v. April Conners, Defendant, Eaamon Fields, Defendant-Appellant.
    Court of Appeals

      No. 99-2091.

      Submitted on briefs March 3, 2000.

    Decided August 10, 2000.

    2000 WI App 202
    (Also reported in 618 N.W.2d 194.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs oí Michael Higgins of Higgins Law Office of Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David M. McDorman of McDorman & Gillen of Madison.
    Before Dykman, P.J., Eich and Roggensack, JJ.
   ROGGENSACK, J.

¶1. Eaamon Fields appeals a judgment against him for medical services provided to his son, C.F., by Dean Medical Center, S.C. He claims that the purchase of medical services was a consumer credit transaction, and therefore Dean cannot recover because it did not give him the personal notice required by the Wisconsin Consumer Act (WCA). Fields also asserts that a paternity judgment in effect when the services were provided precludes Dean from recovering from him for the costs of medical care provided to his child. We conclude that the transaction involved here was not a consumer credit transaction to which the WCA applied. We also conclude that a paternity judgment does not bar a non-party creditor from pursuing either parent for the costs of medical care provided to their child. Accordingly, we affirm the judgment of the circuit court.

BACKGROUND

¶ 2. The facts are not in dispute. From February 21, 1996, to November 14, 1996, Dean provided uninsured medical services totaling $259.50 to C.F., the minor, non-marital son of April Conners and Eaamon Fields. The paternity judgment required each parent to be responsible for one-half of C.F.'s uninsured medical expenses.

¶ 3. In October of 1998, Dean sued both Conners and Fields in small claims court to recover the cost of services. Dean obtained a default judgment against Conners. Fields disputed his liability and argued that the purchases of medical care were consumer credit transactions and that Dean had violated the WCA by not providing the notice required by Wis. Stat. § 422.305(1). Additionally, he asserted that his responsibility for medical expenses must be established through the family court and in accordance with the paternity judgment, not through a suit against him.

¶ 4. The small claims court ruled in favor of Dean, and Fields sought a trial de novo in the circuit court. The circuit court concluded that Fields was liable to Dean for the cost of medical care provided to C.F. It determined that the transaction was not a consumer credit transaction; therefore, Dean was not required to comply with the provisions of the WCA. It also ruled that Dean was not barred from suing the non-custodial parent for the full cost of medical services, even though the paternity judgment had provided that each parent was to pay for one-half of the child's uninsured medical care. Fields appeals.

DISCUSSION

Standiard of Review.

¶ 5. Whether a particular transaction is a consumer credit transaction subject to the WCA is a mixed question of fact and law. See LeBakken Rent-To-Own v. Warnell, 223 Wis. 2d 582, 589, 589 N.W.2d 425, 428 (Ct. App. 1998). Here, the parties do not dispute the material facts. Accordingly, whether those facts fulfill the elements of a consumer credit transaction is a question of law which we review de novo. See id. Additionally, when the facts are not in dispute, whether a creditor may recover from a non-custodial parent for medical services provided to that parent's child, notwithstanding an earlier paternity judgment that addresses medical care for the child, is a question of law that we review de novo. See Jacobson v. Jacobson, 177 Wis. 2d 539, 546, 502 N.W.2d 869, 873 (Ct. App. 1993).

Wisconsin Consumer Act.

¶ 6. Fields contends that because neither he nor Conners received the notice required by Wis. Stat. § 422.305(1), which provides that no person is obligated to assume liability for payment of a debt arising out of a consumer credit transaction unless that person receives the notice described therein, Dean cannot recover from him for the cost of the medical services provided to C.F. He claims that this language abrogates the common-law rule that requires payment by the parent for necessaries provided to his or her child. However, before § 422.305(1) could be applied, the obligation incurred must be the result of a consumer credit transaction. See LeBakken, 223 Wis. 2d at 588, 589 N.W.2d at 428.

¶ 7. A consumer credit transaction is defined as "a consumer transaction between a merchant and a customer in which real or personal property, services or money is acquired on credit and the customer's obligation is payable in instalments or for which credit a finance charge is or may be imposed. ..." Wis. Stat. .§ 421.301(10). "Payable in instalments" is also defined under the WCA:

"Payable in instalments" means that payment is required or permitted by agreement to be made in:
(a) Two or more instalments, excluding the down payment in a consumer credit sale, with respect to an obligation arising from a consumer credit transaction for which a finance charge is or may be imposed;
(b) More than 4 instalments, excluding the down payment in a consumer credit sale, in any other consumer credit transaction; or
(c) Two or more instalments if any instalment other than the down payment is more than twice the amount of any other instalment, excluding the down payment.

WlS. Stat. § 421.301(30). "Agreement" is further defined in the WCA as: "the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance. . . ." Section 421.301(3).

¶ 8. Neither party argues that Wis. Stat. § 421.301(10) is ambiguous; instead, each argues that the undisputed facts show the absence, or the presence, of an "agreement" of the type envisioned in the statutes. For example, Dean contends that the provision of medical care to C.F. was not a consumer credit transaction because there were no "circumstances" which would show there was an agreement with Conners that payment for the services could be made either in installments or be subject to the imposition of a finance charge. Fields asserts that Dean's practice of regularly allowing customers to pay their bills over time is a "circumstance" showing an agreement that the obligation incurred here was payable in installments and subject to the WCA. The circuit court agreed with Dean, and we do also.

¶ 9. Teresa Addison, the manager of financial services for Dean, was the sole -witness who testified about Dean's billing and collection practices. She stated that payment is requested, but not required, at the time medical services are provided. If payment is not made on the date of service, a billing statement is sent to the patient within fifteen days. If Dean has no health insurance information on file, the bill requests payment in full within thirty days. If no payment is received, a second bill is sent showing a past due balance. If Dean receives no response to that bill, a third statement is sent, and a phone call is made to try and collect the debt. If the debt still is not paid, a fourth bill is sent with a notice that the debt is being referred to a collection agency.

¶ 10. Addison also testified that if a patient responds to any of the billing statements by claiming an inability to pay in full, Dean will permit the debt to be paid over time. Additionally, if the patient is unable to pay the debt because of insufficient income, Dean refers the patient to its Community Care Program to determine whether he or she qualifies for assistance in payment. Addison testified that finance charges are never imposed on any payments made over time.

¶ 11. Addison further testified that at the time services are provided, patients are not informed that they can pay the bill in installments, nor are they informed about payment plans. When payment is not made on the date of service, patients are told that Dean will send them a bill that is due in full within thirty days of receipt. Conners confirmed that portion of Addison's testimony, stating that she believed payment for the medical services was due in full when she received the bill.

¶ 12. No prior case has determined whether an overdue debt which is not subject to a finance charge and is paid over a period of several months is a consumer credit transaction solely because it was paid over time. However, on the record before us, we conclude that the obligation incurred by Conners was not the result of a consumer credit transaction and the WCA does not apply. First, there was no testimony that could support the conclusion that there was an agreement with Conners at the time the services were provided that the bill could be paid in installments. Second, we would have to re-write the agreement under which services had already been provided were we to allow those services to create a consumer debt simply by virtue of nonpayment. To do as Fields asks would force sellers of services to choose between writing off unpaid debts or facing penalties for not having complied with the WCA when they had no intention of offering credit in the first instance. Third, it is Dean's customary business practice not to offer patients the option of paying in installments at the time the services are provided. Only after attempts to collect the full debt have failed may Dean agree to payments over time. This practice was followed here.

¶ 13. Therefore, we conclude that the agreement required by the WCA is one made before services were rendered and that permitting a debtor to pay over time only after attempts at collecting the bill in full have failed does not cause the transaction to become a consumer credit transaction. Accordingly, we conclude that the obligation incurred by Conners for medical care provided to C.F. does not fall under the WCA.

The Paternity Judgment.

¶ 14. Fields also argues that third-party creditors may not recover from a non-custodial parent when a paternity judgment establishes the non-custodial parent's liability for medical expenses of the child. He contends that because the paternity judgment in this case directs that he is responsible for one-half of all uninsured medical expenses, Dean is precluded from collecting from him. He argues that Dean can recover the full cost of necessary services only from the custodial parent and then the custodial parent may seek reimbursement from him in family court.

¶ 15. Whether a third-party creditor may obtain a judgment against a non-custodial parent for medical services provided to that parent's child when a paternity judgment assigns liability for those services is a question of first impression in Wisconsin. Fields concedes that the doctrine of necessaries is alive and well in Wisconsin. His sole contention is that a paternity judgment overrides a creditor's rights under the doctrine of necessaries. In support of this theory, he cites to two out-of-state cases in which the courts have held that creditors may not recover directly from non-custodial parents. See National Account Sys. of Lincoln, Inc. v. Vergith, 521 N.W.2d 910, 912 (Neb. 1994); Coastal Adjustment Bureau, Inc. v. Wehner, 423 P.2d 967, 968 (Or. 1967). Those decisions reason that a court order, such as a divorce decree, fixes the upper limit of liability for a non-custodial parent and that allowing a creditor to seek payment from the non-custodial parent amounts to a modification of the divorce decree without the authority of the family court. Fields adopts that position and also contends that permitting Dean's suit against him will encourage custodial parents to incur debt without restraint. For the reasons stated below, we do not find this reasoning persuasive.

¶ 16. As we begin our analysis of Fields's contentions, we note that Wisconsin courts have consistently held that a person who was not a party to the action, or who did not stand in privity with a party, is not bound by the subsequent judgment. See, e.g., State v. Jody A.E., 171 Wis. 2d 327, 341, 491 N.W.2d 136, 140-41 (Ct. App. 1992); Maloney v. Vargo, 267 Wis. 20, 26, 64 N.W.2d 454, 457 (1954). The courts have recognized that it is unfair to bind non-parties because they have had no opportunity to participate in the proceedings. However, Fields's contention that the paternity judgment prevents Dean from seeking payment from him is an attempt to bind Dean to a judgment when it was not a party to the action. Furthermore, we have been presented with no reason why a divorce judgment should have any greater effect on a non-party than judgments in other civil actions, and our research provided none.

¶ 17. Additionally, a paternity judgment "does not create the support obligation, but rather merely reaffirms it and sets a specific sum to be paid." State v. Duprey, 149 Wis. 2d 655, 658-59, 439 N.W.2d 837, 838-39 (Ct. App. 1989). A parent's duty to support his or her child is not a debt but an obligation that arises from that person's status as a parent. The paternity judgment does not alter that status; instead, it assigns, as between two parents, who will pay what amount as expenses accrue. Permitting creditors to seek payment for necessaries from either parent maintains the responsibility of each parent for necessaries for his or her child. See Madison Gen. Hosp. v. Haack, 124 Wis. 2d 398, 412, 369 N.W.2d 663, 670 (1985).

¶ 18. Furthermore, if third-party providers of necessaries know they can seek payment from either parent, they will be more likely to provide services to children who need them. See Marshfield Clinic v. Discher, 105 Wis. 2d 506, 511, 314 N.W.2d 326, 329 (1982) (stating that the rule of necessaries is particularly appropriate in cases dealing with medical care because it allows hospitals to render emergency care immediately without being encumbered by having to make financial arrangements at that time). Therefore, we conclude that the paternity judgment does not prevent Dean's suit against Fields.

¶ 19. And finally, we do not agree that our decision will undermine the family court's support orders. When either parent refuses to pay for an expense that the other parent believes is covered by the court's order, the parent who believes he or she has paid too much may bring the issue before the family court to seek reimbursement. We also disagree with the assertion that our decision will encourage custodial parents to incur debt without restraint. Because our decision is based in part on the doctrine of necessaries, it applies to items that "supply the personal needs of the infant." Covault v. Nevitt, 157 Wis. 113, 116, 146 N.W. 1115, 1117 (1914). Suitable shelter, food, clothing and medical attention are among the necessaries that the law generally deems essential to the health and well-being of a child. See 59 Am. Jur. 2d Parent and Child § 44 (1987). Further, the supreme court has previously stated that when a merchant sues a parent for necessaries, that merchant has the burden of proving that the articles sold were reasonably needed by a member of the family to whom they were sold. See Sharpe Furniture, Inc. v. Buckstaff, 99 Wis. 2d 114, 122, 299 N.W.2d 219, 223 (1980) (citing Simpson Garment Co. v. Schultz, 182 Wis. 506, 509-10, 196 N.W. 783, 784 (1924)). Therefore, a non-custodial parent is protected from a custodial parent's inappropriate expenditures because the non-custodial parent will be obligated to pay only for items or services that constitute necessaries. Accordingly, we conclude that the paternity judgment determines as between two parents who pays what expenses; it does not bind creditors who were not parties. Accordingly, it does not prevent Dean from recovering from Fields.

CONCLUSION

¶ 20. We conclude that the transaction involved here was not a consumer credit transaction to which the WCA applied. We also conclude that a paternity judgment does not bar a non-party creditor from pursuing either parent for the costs of medical care provided to their child. Accordingly, we affirm the judgment of the circuit court.

By the Court. — Judgment affirmed.

       Normally, small claims appeals are decided by one judge pursuant to Wis. STAT. § 752.31(2)(a) (1997-98). However, on January 14, 2000, this case was converted to a three-judge panel. All further references to the Wisconsin Statues are to the 1997-98 version, unless otherwise noted.

       Fields had been adjudicated the father of C.F. before the provision of the services at issue here.

       Courts in other jurisdictions have concluded that creditors are not precluded from seeking payment from non-custodial parents by divorce decrees and other family court orders. See, e.g., University of S. Ala. v. Patterson, 541 So. 2d 535, 537 (Ala. 1989) (concluding that when medical services to minors are deemed medically necessary, the child has a right to have both parents held responsible); McLain v. West Side Bone & Joint Ctr., 656 So. 2d 119, 122-23 (Miss. 1995) (concluding that because health care provider was not a party in the divorce action, its rights of collection were unaffected by the divorce judgment); Alamance County Hosp., Inc. v. Neighbors, 338 S.E.2d 87, 92 (N.C. 1986) (concluding that the common law doctrine that requires a father to pay for necessaries for his children survives the divorce and continues even though custody is awarded to the mother); Aharoni v. Michael, 598 N.E.2d 1215, 1218 (Ohio Ct. App. 1991) (concluding that the parents' collective responsibility to pay for the necessaries for their child is not impaired even if the parents' divorce assigns different obligations as between themselves).


author: EICH, J.

text:
    State of Wisconsin ex rel. Spriggie Hensley, Plaintiff-Appellant, v. Jeffrey P. Endicott, and Wisconsin Department of Corrections, Defendants-Respondents.

    Court of Appeals

      No. 00-0076.

      Submitted on briefs June 23, 2000.

    Decided August 10, 2000.

    2000 WI App 189
    (Also reported in 618 N.W.2d 245.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Spriggie Hensley, pro se, of Portage.
    On behalf of the defendants-respondents, the cause was submitted on the brief of James E. Doyle, attorney general, and Michael D. Oeser, assistant attorney general.
    Before Dykman, P. J., Eich and Vergeront, JJ.

      Petition to review granted.

   EICH, J.

¶ 1. Spriggie Hensley, a prison inmate, appeals an order dismissing his complaint for declaratory judgment on grounds that he failed to plead exhaustion of administrative remedies as required by Wis. Stat. § 801.02(7) (1997-98).

¶ 2. Hensley's complaint challenged the constitutionality of Wis. Admin. Code §§ DOC 309.04(4)(c)8.a., and DOC 309, IMP #1-A, which forbid inmates from receiving tapes and other materials deemed to be pornographic in nature through the mails. The circuit court concluded that, while Hensley's complaint satisfied the general conditions necessary for declaratory relief, it must nonetheless be dismissed for failure to allege that Hensley had exhausted his administrative remedies.

¶ 3. Declaratory judgment actions are governed by the Uniform Declaratory Judgments Act, Wis. Stat. § 806.04, which sets forth the general rules governing declaratory relief, and by WlS. STAT. § 227.40, which deals specifically with declaratory judgment proceedings contesting the validity of administrative rules. Under the latter statute, a declaratory judgment may be rendered "whether or not the plaintiff has first requested the agency to pass upon the validity of the rule" § 227.40(1). It also requires the court to "declare the rule invalid if it finds that it violates constitutional provisions." Section 227.40(4)(a).

¶ 4. The statute relied on by the circuit court in dismissing Hensley's action, Wis. Stat. § 801.02(7)(b), states that "[n]o prisoner may commence a civil action . . . with respect to the . . . conditions in the facility in which he or she has been incarcerated . . . until the person has exhausted all.. . remedies that the department of corrections has promulgated by rule." The department is correct in citing State ex. rel. Smith v. McCaughtry, 222 Wis. 2d 68, 72, 586 N.W.2d 63 (Ct. App. 1998), as stating that, -under the statute, failure to plead exhaustion can be "fatal to a complaint." However, the department's citation omits an important qualification. What we said in Smith was that the "failure to plead exhaustion of remedies, where they are not shown to be futile, is fatal to a complaint." Id. (emphasis added). And while perhaps few things can be called futile, attempting to have an administrative agency determine the constitutionality of a statute plainly fits that definition.

¶ 5. This is not a case where an inmate challenges an institution or agency policy, or a particular action in a particular case. Nor is it a complaint that a DOC rule is arbitrary or unwise or unneeded. In such cases we would be hard-pressed indeed to hold the exhaustion requirements inapplicable. But the issues Hensley raises in his action are not questions of the enforcement of, the wisdom behind, or the need for, the rules in question — or even their harshness or arbitrary effect. Rather, he claims they are unconstitutional; and that question is unsuited to resolution through an inmate complaint review process in a particular correctional institution. The constitutionality of a statute, or an administrative rule, is, perforce, a question for the courts. The inmate complaint review procedures, on the other hand, are directed toward "issues regarding rules, living conditions, and staff actions affecting [the] institution environment." See Wis. Admin. Code §§ DOC 310.01 and 310.08.

¶ 6. We have found no Wisconsin cases precisely on point. The issue has come before the federal courts, however, and while lower federal court decisions are not binding in Wisconsin, we have often found such decisions to be "persuasive" on a particular question. See State v. Boettcher, 144 Wis. 2d 86, 96-97, 423 N.W.2d 533 (1988); Streff v. Town of Delafield, 190 Wis. 2d 348, 356-57, 526 N.W.2d 822 (Ct. App. 1994). That is the situation here — especially with respect to Judge Doyle's decision in Cravatt v. Thomas, 399 F. Supp. 956 (W.D. Wis. 1975). In that case the district court considered the exhaustion requirement in relation to a constitutional challenge to conditions at a federal prison. The court recognized four policy bases underlying the exhaustion requirement: (1) that subsequent judicial review will be facilitated by allowing administrative agencies to exercise and apply their expertise in a given area; (2) that exhaustion will allow the agency to develop a factual record which will be of use and benefit in subsequent judicial proceedings; (3) that agencies should be given an opportunity to correct their own errors; and (4) that the agency may well grant all the relief requested, thus saving valuable judicial time. See id. at 969-70.

¶ 7. The court went on to state that exhaustion is "inappropriate" in cases where the issue is one of "constitutional or statutory interpretation" because the agency brings no particular expertise to the task, and there is "little likelihood that judicial resolution of the issue can eventually be avoided." Id. at 970. Another federal court presented with a similar issue agreed, noting that constitutional questions are "beyond the competence of correctional officials to consider and arguably beyond their authority." Green v. Nelson, 442 F. Supp. 1047, 1052 (D.Conn. 1977). We share those sentiments.

¶ 8. We conclude, therefore, that to require Hensley to advance his constitutional challenges to the rules in question before his institution's complaint review committees and appeal personnel as a precondition to raising them is unnecessary. We therefore reverse the order of the circuit court.

By the Court. — Order reversed.

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

       Under Sipl v. Sentry Indent. Co., 146 Wis. 2d 459, 464, 431 N.W.2d 685 (Ct. App. 1988), in order for declaratory relief to be granted: (1) there must be a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) that controversy must be between parties whose interests are adverse; (3) the party seeking declaratory relief must have a legally protectible interest in the controversy; and (4) the issue involved must be ripe for judicial determination.

       Wisconsin courts have imparted a similar purpose to exhaustion requirements.
      The rules of exhaustion allow the administrative agency to perform the functions delegated to it by the legislature without interference by the courts. The doctrine allows the agency to apply its special competence and expertise and make a factual record. It also promotes finality of decision-making, prevents a multiplicity of suits and achieves an economy of judicial time.

        Local 913 v. Manitowoc County, 140 Wis. 2d 476, 484, 410 N.W.2d 641 (Ct. App. 1987). Requiring Hensley to exhaust his ICRS and other institutional and administrative remedies in this case would not further any of those goals.

       The department argues that because it has the ability to modify and/or repeal its own rules, Hensley should exhaust institutional and departmental remedies. It is also true, however, that the department can, at any time, withdraw a modification or reinstate a repealed rule.
      Beyond that, Hensley's action seeks a declaration that the challenged rules are void because they violate one or more provisions of the United States and Wisconsin Constitutions; and that is a question for the courts, not for institutional committees or correctional agencies, to determine.


author: PER CURIAM.

text:
    State of Wisconsin ex rel. Mark Anthony Adell, Petitioner-Appellant, v. Judy Smith, Warden, Oshkosh Correctional Institution, Respondent-Respondent. [Case No. 00-0070] State of Wisconsin ex rel. Ira Lee Anderson, II, Petitioner-Appellant, v. Jane Gamble, Respondent-Respondent. [Case No. 00-0421]
    Court of Appeals

      Nos. 00-0070, 00-0421.

      Submitted on a petition April 24, 2000; submitted on a motion April 28, 2000.-

    Decided August 16, 2000.

    2000 WI App 188
    (Also reported in 618 N.W.2d 208.)

      MOTION to vacate the order conditionally granting the petition to proceed without prepaying the filing fee. Motion denied.

    On behalf of appellant Adell, the cause was submitted on the petition and memorandum of Mark Anthony Adell, pro se. On behalf of appellant Anderson, the cause was submitted on the memorandum of Ira Lee Anderson, II, pro se.
    On behalf of the respondents, the cause was submitted on the memoranda and the motion of James E. Doyle, attorney general, and Charles D. Hoornstra and Jaime Preciado, assistant attorneys general.
    Before Nettesheim, Anderson and Snyder, JJ.
   PER CURIAM.

¶ 1. These appeals present issues concerning the application of the Prisoner Litigation Reform Act (PLRA), 1997 Wis. Act 133, to appellate procedure. Mark Anthony Adell and Ira Lee Anderson, II, filed appeals in this court. They are prisoners within the meaning of WlS. STAT. § 801.02(7)(a)2 (1997-98) and petitioned to be allowed to proceed without the prepayment of filing fees under Wis. Stat. § 814.29(lm). This court had not yet decided whether Adell was entitled to proceed without the prepayment of the fee. The State submitted an affidavit alleging that Adell had three dismissals -within the meaning of § 801.02(7)(d), presumably so this court would conclude that Adell was not entitled to proceed without prepaying the filing fee.

¶ 2. This court conditionally granted Anderson's petition. The State then moved to vacate the order granting Anderson's petition and to dismiss his appeal, alleging that he had three dismissals within the meaning of Wis. Stat. § 801.02(7)(d). Under that section, a court must dismiss a matter if a prisoner has had three previous cases dismissed for any of the reasons set forth in Wis. Stat. § 802.05(3)(b). This is known as the "three strikes" rule. In both appeals, the third strike identified by the State is the case from which the pending appeal was taken.

¶ 3. This court issued orders directing the parties in both cases to answer certain questions concerning the application of the PLRA. The first issue the parties were asked to address, and the dispositive issue in these appeals, is whether the three strikes rule bars an appeal in light of the language in Wis. Stat. § 801.02(7)(d) which refers to the dismissal of an "action or special proceeding" when three strikes have been accumulated. We conclude. that § 801.02(7)(d) does not apply to appeals, and therefore, both Anderson and Adell are entitled to a conditional fee waiver.

¶ 4. Wisconsin Stat. § 801.02(7)(d) provides:

If the prisoner seeks leave to proceed without giving security for costs or without the payment of any service or fee under s. 814.29, the court shall dismiss any action or special proceeding, including a petition for a common law writ of certiorari, commenced by any prisoner if that prisoner has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05 (3) (b) 1. to 4. The court may permit a prisoner to commence the action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury. (Emphasis added.)

¶ 5. The State recognizes that because the word "appeal" is not used in the first part of Wis. Stat. § 801.02(7)(d), it can be argued under the doctrine of inclusio unius est exclusio alterius that the statute does not bar an appeal. In other words, since "appeal" is used in the second part of the statute but not in the first, the use of the word "appeal" in the second part "impliedly excludes" appeals in the first part.

¶ 6. The State argues, however, that the rules of statutory construction require that appeals be barred because to do otherwise would not be in harmony with the statute as a whole and would defeat the legislative purpose of the statute. In support of this argument, the State asserts that there is no right to appeal without paying the filing fee, and therefore, the appellant does not lose any right if the word "appeal" is read into Wis. Stat. § 801.02(7)(d).

¶ 7. The rules of statutory construction require that the statute be read as written. As the supreme court said recently in another PLRA case: "When a statute unambiguously expresses the intent of the legislature, we apply that meaning without resorting to extrinsic sources." State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591; see also Severson Agri-Serv., Inc. v. Lander, 172 Wis. 2d 269, 272, 493 N.W.2d 230 (Ct. App. 1992) (when a statute is clear on its face, the appellate court will not look beyond its language in applying it).

¶ 8. We conclude that there is no ambiguity in WiS. Stat. § 801.02(7)(d), and therefore, there is no need to look to other sources to determine the meaning of the statute. The statute does not include appeals in the list of matters which are subject to dismissal for the simple reason that the legislature did not intend appeals to be dismissed.

¶ 9. This conclusion comports with an earlier decision of this court on a similar matter. In Taylor v. Rock County Sheriff's Dep't, 223 Wis. 2d 134, 588 N.W.2d 356 (Ct. App. 1998), this court considered whether the PLRA applied to appeals which were pending on the effective date of the act. The court considered 1997 Wis. Act 133, § 43(1), which states that the act applies to " 'civil actions, special proceedings, injunctions and petitions for common law writ of certio-rari pending on the effective date' of the act." Taylor, 223 Wis. 2d at 136. The court concluded that this section does not state that it applies to appeals and that "[t]his omission is in contrast to other parts of the act that specifically include appeals." Id. The opinion further states that the State expressly conceded that "[the PLRA] provides a list of the types of pending cases to which it applies, and the list does not include appeals. Applying the maxim expressio unius est exclusio alter-ius, the [State] concluded] that by listing some types of cases, but not appeals, the legislature did not intend [the PLRA] to apply to appeals pending on its effective date." Id. at 137.

¶ 10. While Taylor considered whether the PLRA applied to appeals pending on its effective date, the same reasoning applies to WlS. STAT. § 801.02(7)(d), another section where the PLRA does not identify appeals as one of the matters covered. Since the court refused to read "appeal" into the PLRA's effective date, there is no reason why "appeal" should be read into § 801.02(7)(d).

¶ 11. The State also argues that the language of another section of the PLRA makes clear that an appeal should be included in the list of matters which may be dismissed. The State cites to the language in WlS. Stat. § 814.29(lm)(c), which provides in relevant part:

Except when dismissal is required under s. 801.02 (7) (d), the court shall issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without the prepayment of fees or costs or without being required to give security for costs if all of the following conditions are met:.... (Emphasis added.)

¶ 12. The State says that this language provides the "express language arguably excluded by implication from sec. 801.02(7)(d)." The thrust of the State's argument is that since an appellate court may dismiss under this section, then appeals must be included as matters that may be dismissed for three strikes under Wis. Stat. § 801.02(7)(d).

¶ 13. The State's reliance on Wis. Stat. § 814.29(lm)(c) is misplaced. That section of the statute is merely setting out certain conditions which a prisoner must meet in order to be allowed to proceed in "an action, special proceeding, writ of error or appeal" without the prepayment of fees. These conditions need not be met if the matter is dismissed as barred under Wis. Stat. § 801.02(7)(d), hence the language in § 814.29(lm)(c) "[e]xcept when dismissal is required under s. 801.02 (7) (d)." Rather than implicitly suggesting that an appeal may be dismissed under § 801.02(7)(d), the language simply means that the prisoner must furnish the court, including the appellate court, with the specified information except when the matter is required to be dismissed. This statute does not affect our determination that appeals are not among the matters which may be dismissed under § 801.02(7)(d).

¶ 14. The State argues that if Wis. Stat. § 801.02(7)(d) does not include appeals, then the legislative intent to curb abusive and excessive litigation is partially defeated. Implicit in this argument is that the absence of the word "appeal" from the list of matters in § 801.02(7)(d) creates an ambiguity. See Chicago & N. W. Transp. Co. v. Office of Comm'r of Railroads, 204 Wis. 2d 1, 7, 553 N.W.2d 845 (Ct. App. 1996) (if the language used in a statute is capable of more than one meaning, this court will determine legislative intent from the words of the statute in relation to its context, subject matter, scope, history, and the object which the legislature intended to accomplish). Even assuming that there is an ambiguity, however, we conclude that leaving the word "appeal" out of the list furthers, rather than hinders, the legislative intent behind the PLRA.

¶ 15. If the word "appeal" is read into the list of matters which are subject to dismissal in Wis. Stat. § 801.02(7)(d), then presumably, as in this case, the State could argue that the appeal from the third strike would be subject to dismissal. In Adell's response to this court he put it quite eloquently. To construe the statute the way the State argues means that appeals may be taken only from the first two strikes which "in essence, rewrites the three dismissals rule as meaning two and one-half equals three." In other words, if the case underlying the appeal is the third strike, the prisoner never gets review of whether that third strike was frivolous.

¶ 16. The State argues, however, that there is no constitutional right to a free appeal, and therefore, denying a prisoner an appeal does not deprive him or her of any right. There is, however, a statutory right to an appeal. See Wis. Stat. § 808.03. This section states: "A final judgment or final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law." Section 808.03(1). This statute is very broad and there is nothing in it limiting the right of a prisoner to appeal. Further, as we have already discussed, nothing in the PLRA expressly limits the right of a prisoner to appeal.

¶ 17. As the State argues, the purpose of the PLRA is to curb abusive and excessive litigation by prisoners. By allowing review of a determination that an action was frivolous, or otherwise barred by the PLRA, the statute curbs abusive litigation but does not bar legitimate litigation. If, however, the State's interpretation of the section is adopted and a review is not allowed of the dismissal of the underlying case, then the chance that a legitimate claim will be barred is increased. By excluding the word "appeal" from the list of matters which may be stricken under WiS. Stat. § 801.02(7)(d), the legislative intent is furthered rather than defeated.

¶ 18. A third issue which the parties were asked to address is: "[I]f the three dismissals limitation applies to appeals, then must the cases which constitute those dismissals be specifically denominated as such by the court that decides them, or may this court review those decisions and decide whether they constitute dismissal under WiS.' Stat. § 802.05(3)(b)?" Although we have already decided that the three strikes limitation does not apply to an appeal, we nonetheless address the issue. The parties have briefed the issue and, more importantly, the issue may arise even though an appeal is not considered a strike. We believe that guidance from this court will aid both bench and bar.

¶ 19. Wisconsin Stat. § 802.05 provides in relevant part:

(3) (a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2.
(b) The court may dismiss the action or special proceeding under par. (a) without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:
1. Is frivolous, as determined under s. 814.025 (3).
2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.
3. Seeks monetary damages from a defendant who is immune from such relief.
4. Fails to state a claim upon which relief may be granted.

¶ 20. The issue presented is whether the court deciding the case which constitutes one of the three strikes must designate its decision as being a strike within the meaning of WlS. Stat. § 802.05(3) for it to constitute a strike under Wis. Stat. § 801.02(7)(d). We agree with the State's position that there is nothing in the statute which requires a court to specifically designate a matter as a strike. We encourage the circuit courts, however, to carefully consider the language used when dismissing matters filed by prisoners. Until recently, "failure to state a claim upon which relief may be granted" was a relatively innocuous way of telling a prisoner that he or she had lost for a variety of reasons. Now this language has a potent impact. This language is enough for the State to count the case as one of the three strikes. We ask the circuit courts to avoid boiler plate language or forms which also do not indicate the reasons for a strike in a prisoner case.

¶ 21. If, however, a court has considered the PLRA implications of a decision, it would be helpful to all litigants, as well as to the appellate courts, if the court states whether it considers the dismissal to be of the type which constitutes á strike under the PLRA. Although the courts are not required to do so by statute, we ask that the courts state in a judgment or order whether the matter is one which was dismissed for any of the reasons listed in WiS. Stat. § 802.05(3)(b).

¶ 22. Because we have concluded that the three strikes rule does not bar either appeal, we conditionally grant Adell's petition to commence the appeal without prepayment of the filing fee. Further, we deny the State's motion to vacate the order conditionally granting Anderson's petition to proceed without prepayment of the filing fee.

By the Court. — Adell's petition to proceed without prepaying the filing fee is conditionally granted.

By the Court. — The motion to vacate the order conditionally granting Anderson's petition to proceed without prepaying the filing fee is denied.

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

       When this court conditionally grants the petition, an order is entered directing the prisoner to make a payment equal to the amount in his or her prison accounts. If the payment is not made within thirty days of the order, then the appeal is subject to dismissal. See Wis. Stat. Rule 809.83(2).

       We conclude, however, that the opposite is true — WlS. Stat. § 814.29(lm)(c) supplies the implicit language which is expressly missing from WlS. Stat. § 801.02(7)(d).

       This is the second issue the parties were asked to address in Adell-. "If an appeal is barred by the three dismissals rule, can the third dismissal be the appeal from which the appeal is taken?"

       This court finds the prisoner to be partially indigent because he has assets in his trust fund to partially pay the filing fee. The clerk of the court of appeals will issue an order specifying the amount to be paid and explaining the conditions upon which the petition is granted.