author: DYKMAN, J.

text:
    Thomas J. Justmann and Victoria L. Justmann, Plaintiffs-Appellants, v. Portage County, Defendant-Respondent.
    Court of Appeals

      No. 03-3310.

      Submitted on briefs August 5, 2004.

    Decided December 16, 2004.

    2005 WI App 9
    (Also reported in 692 N.W.2d 273.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Michael S. Heffernan, and Allen A. Arntsen of Foley & Lardner LLP, Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael J. McKenna, Portage County Corporation Counsel, Stevens Point.
    Before Deininger, PJ., Dykman and Vergeront, JJ.
   DYKMAN, J.

¶ 1. Thomas and Victoria Justmann appeal from a judgment on a jury verdict awarding them $10,700 for property taken by Portage County for highway construction. The Justmanns contend that under Wis. Stat. § 32.09(6) (2001-02) they are entitled to an additional $43,894.89 in severance damages. Because we conclude that the plain language of § 32.09(6) does not provide severance damages when compensation for a partial taking is based on the fair market value of the property taken, as it was here, we affirm.

Background

¶ 2. This eminent domain case arises from Portage County's condemnation of a part of the Justmanns1 property for highway use. A condemnation proceeding resulted in an award of $75,300 to the Justmanns. The Justmanns appealed this award to the circuit court under Wis. Stat. § 32.05(11). A jury heard the appeal, and returned a special verdict that found the fair market value of the property taken to be $86,000. As directed, the jury also found the so-called "before and after" value of the property — i.e., the difference between the value of the property remaining after the taking and the value of the entire property immediately before the taking — to be $42,500. Applying Wis. Stat. § 32.09(6), the trial court based the compensation award on the higher of the two valuations — here, the property taken value of $86,000 — then awarded damages of $10,700, the difference between the fair market value and the $75,300 award already paid to the Just-manns.

¶ 3. Included in the jury's "before and after" calculation was $43,894.89 in severance damages caused by the taking: $8,100 for the loss of a well, $34,144.89 to reroute an irrigation system, and $1,650 for landscaping. The trial court did not award severance damages because it based its award on the value of the property taken and concluded that Wis. Stat. § 32.09(6) provides severance damages only when the award is based on a "before and after" method of compensation. The Justmanns maintain that § 32.09(6) does not deny the possibility of severance damages for awards calculated under the value of the property taken approach, and appeal.

Analysis

¶ 4. This case turns on our interpretation of Wis. Stat. § 32.09(6). We review questions of statutory interpretation de novo. State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis. 2d 868, 648 N.W.2d 496.

¶ 5. Wisconsin Stat. § 32.09(6) provides that when an exercise of eminent domain results in a partial taking

the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist ....

The parties agree that this section entitles the property owner to either (1) the fair market value of the part of the property taken or (2) the difference between the value of the whole property immediately before the taking and the value of the remaining property immediately after the taking (the "before and after" method), whichever amount is greater. They dispute whether the severance damages portion of § 32.09(6) — roughly the last third of the passage excerpted above, beginning with "and giving effect" — applies to both methods of calculating compensation, or only to the "before and after" method.

¶ 6. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper and intended effect." State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. When interpreting a statute, we "begin[] with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659. If the analysis "yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656.

¶ 7. The Justmanns contend that Wis. Stat. § 32.09(6) does not plainly provide that severance damages are available only under the "before and after" method of compensation. They assert that because the statute lacks such an express statement, the statute is ambiguous as to whether severance damages are available under both methods of valuation. They further contend that if we conclude that the statute is ambiguous, we must construe it in their favor, citing Redevelopment Authority of Green Bay v. Bee Frank, Inc., 120 Wis. 2d 402, 409-410, 355 N.W.2d 240 (1984) (explaining that statutory provisions regarding the compensation to be paid to a condemnee are to be liberally construed in favor of the condemnee). We reject the Justmanns' reading of the statute.

¶ 8. A statute is ambiguous if reasonably well-informed persons are capable of understanding it in two or more senses. Bruno, 260 Wis. 2d 633, ¶ 19 (citations omitted). Disagreement between parties is not the test for ambiguity. See Id., ¶ 21. "[T]he test for ambiguity examines the language of the statute to determine whether well-informed persons should have become confused, that is, whether the statutory language reasonably gives rise to different meanings." Kalal, 271 Wis. 2d 633, ¶ 47 (citations omitted).

¶ 9. We conclude that the language of the statute unambiguously provides for severance damages only under the "before and after" method of compensation. The relevant portion of Wis. Stat. § 32.09(6) consists of a single 116-word partial sentence. It begins with an either/or construction: " [T]he compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken ... or [the "before and after" value]." Id. The severance damage part of § 32.09(6) is incorporated into the "or" side of the construction, which contains the "before and after" method of determining compensation:

the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement [and here begins the severance damages part of the statute] and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage ...."

Section 32.09(6). No language or punctuation marker sets the severance damage portion of the section apart from the either/or construction set forth at the beginning of the sentence. Therefore, we read the severance damages language to be a part of the either/or logic of the statute, and conclude that such damages are available only under a "before and after" method of compensation.

¶ 10. The Justmanns contend that the legislative history of Wis. Stat. § 32.09(6) does not evidence intent to deny recovery of severance damages when compensation is based on the value of the property taken. Because we conclude that § 32.09(6) is unambiguous, we may not view its legislative history to contradict or vary our interpretation of the statute's plain meaning. Kalal, 271 Wis. 2d 633, ¶ 51.

¶ 11. However, we observe that the legislative history cited by the Justmanns is not inconsistent with the text of the statute. See Kalal, 271 Wis. 2d 633, ¶ 51 ("[legislative history is sometimes consulted to confirm or verify a plain-meaning interpretation.") (citation omitted). Prior to 1978, compensation for a partial taking was based solely on a "before and after" determination, which included severance damages. See Wis. Stat. § 32.09(6) (1975-76). Chapter 440 of the Laws of 1977 added an alternate method of computation, the value of the property taken:

[T]he compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement. .. (statutory changes shown in italics)

Laws of 1977, ch. 440 § 8. The Justmanns observe that that a note prepared by a legislative support agency accompanying the bill that became law states:

This Section of the bill modifies the current "before and after" rule for determining the just compensation in a partial taking of property other than an easement. The added language allows a greater recovery if the fair market value of the property taken exceeds the "before and after" value. This reduces the possibility of an award of zero, which can occur under the current statute if the remainder is worth as much or more than the whole property before the taking....

Legislative Council Note, 1977 AB 1077. Under this analysis, the purpose of adding an alternate means of calculating loss was to ensure fair compensation for condemnees if the remaining property increased in value immediately following the taking, resulting in an award of zero under the "before and after" formula. Its purpose does not appear to be to provide an alternative means of damage determination for condemnees to bolster awards beyond the levels that had been determined under the traditional "before and after" method.

¶ 12. Furthermore, our decision, while based on a plain language interpretation of Wis Stat. § 32.09(6), leads to a reasonable result and is consistent with commentary and cases from other jurisdictions. As the text of § 32.09(6) indicates, severance damages are part and parcel of the "before and after" value. As one court explained:

It is incorrect to think of "severance damage" as a separate and distinct item of just compensation apart from the difference of the market value of the remainder immediately after the taking. In the case of a partial taking if the "before and after" measure of compensation [is determined] ... there is no occasion ... to talk about "severance damage" as such, and indeed it may be confusing to do so. The matter is taken care of automatically in the "before and after" [determination].

United States v. 9.20 Acres of Land, 638 F.2d 1123 (8th Cir. 1981) (citations omitted). Approaches to valuation that separate severance damages from other factors that contribute to the value of the property remaining after a taking have been criticized as being inconsistent with real world market valuation and appraisal techniques, Model Eminent Domain Code § 1002(b) cmt. (2002); artificial and difficult for courts and juries to apply in a manner that achieves consistent results from case to case, see 1 Orgel, Valuation Under the Law of Eminent Domain § 65 (2d ed. 1953); and as "tending to allow for duplication of damages and overpayment to the condemnee," 4A Nichols, Eminent Domain § 14.02[l][c] (3d rev. ed. 2002). Surveying cases from jurisdictions that apply variations on this method, a leading treatise concludes that the approach "results more in sophistry than equity." Id.

¶ 13. Finally, the Justmanns contend that the just compensation requirement of the Fifth Amendment to the United States Constitution and article 1, section 13 of the Wisconsin Constitution entitle condemnees to severance damages as a matter of constitutional right, citing Bauman v. Ross, 167 U.S. 548, 574, 17 S. Ct. 966 (1897) and Narloch v. Dep't of Transportation, 115 Wis. 2d 419, 423 n.2, 340 N.W.2d 542 (1983). The Justmanns' argument, which consists of conclusory statements and one passage each from Bauman and Narloch (without context), is inadequate to the task of proving the statute to he unconstitutional. In short, the argument is undeveloped, and we need not address it. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct.App. 1992).

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 32.09(6) provides:
      In the case of a partial taking of property other than an easement, the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration hut without duplication, to the following items of loss or damage to the property where shown to exist:
      (a) Loss of land including improvements and fixtures actually taken.

        (b) Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without compensation under any duly authorized exercise of the police power.
      (c) Loss of air rights.
      (d) Loss of a legal nonconforming use.
      (e) Damages resulting from actual severance of land including damages resulting from severance of improvements or fixtures and proximity damage to improvements remaining on condemnee's land. In determining severance damages under this paragraph, the condemnor may consider damages which may arise during construction of the public improvement, including damages from noise, dirt, temporary interference with vehicular or pedestrian access to the property and limitations on use of the property. The condemnor may also consider costs of extra travel made necessary by the public improvement based on the increased distance after construction of the public improvement necessary to reach any point on the property from any other point on the property.
      (f) Damages to property abutting on a highway right-of-way due to change of grade where accompanied by a taking of land.
      (g) Cost of fencing reasonably necessary to separate land taken from remainder of condemnee's land, less the amount allowed for fencing taken under par. (a), but no such damage shall be allowed where the public improvement includes fencing of right-of-way without cost to abutting lands.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Severance damages are defined as "the dimunition in the fair market value of the remaining land that occurs because of [a] taking." Alsum v. Dept. of Transportation, 2004 WI App 196, ¶ 12, 276 Wis. 2d 654, 689 N.W.2d 68 (citation omitted).

       Though the jury incorporated the $43,894.89 in severance damages into their "before and after" determination, for some unknown reason this amount exceeded the total "before and after" value of $42,500. The trial court determined that this error was not sufficient to require a new trial. We agree.


source: Caselaw Access Project

author: KESSLER, J.

license: Public Domain

text:
    Progressive Northern Insurance Company, Plaintiff-Appellant, v. Edward Hall, Defendant, General Casualty Company of Wisconsin, Defendant-Respondent.
    Court of Appeals

      No. 04-0688.

      Oral argument December 7, 2004.

    Decided December 21, 2004.

    2005 WI App 17
    (Also reported in 692 N.W.2d 355.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Rick E. Hills, Cori Lynn Prahl and Michelle M. Stoeck of Hills Legal Group, Ltd., of Waukesha. There was oral argument by Rick E. Hills.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Jacqueline E. Frakes of Eiche & Frakes, S.C., of Milwaukee. There was oral argument by Stuart B. Eiche.

    Before Fine, Curley and Kessler, JJ.

       Petition to review granted 5-11-2005.

   KESSLER, J.

¶ 1. Progressive Northern Insurance Company appeals from a judgment dismissing its declaratory judgment action. The issue before the trial court, and here, is whether the Wisconsin Statutes permit Progressive to provide uninsured motorist coverage that is primary coverage to its named insured but is excess coverage to an occupancy insured. The answer will determine whether Progressive or General Casualty Company of Wisconsin must pay the first $100,000 of damages for an injured passenger, Edward Hall. The trial court concluded that Progressive's "other insurance" clause (purporting to provide only excess coverage for an occupant) was void because it violated Wis. Stat. § 632.32(3)(a) (2001-02). We affirm.

BACKGROUND

¶ 2. Edward Hall was a passenger in a vehicle driven by his brother, Richard Hall. The vehicle was involved in an accident with Angela Phillips, an uninsured driver. Edward sustained injuries in the accident.

¶ 3. At the time of the accident, Richard had a policy of insurance with Progressive. The Progressive policy provides uninsured motorist (UM) coverage limits of $100,000 per person. Progressive does not dispute that Edward, as a passenger in Richard's vehicle, is an insured under the Progressive policy as an occupant of Richard's insured vehicle. It is also undisputed that although Richard and Edward are brothers, Edward is not a "relative" as defined by the policy because he was not residing in Richard's household.

¶ 4. Edward had his own policy of insurance with General Casualty. The General Casualty policy provides UM coverage limits of $500,000 per person.

¶ 5. Both insurance companies agree that their policies provide UM coverage for Edward's injuries. However, they disagree about which policy has to pay the first $100,000. The dispute is solely between two insurance companies; Edward is no longer a party to the action.

¶ 6. At issue are two competing "other insurance" clauses. Edward's General Casualty policy contains an "other insurance" provision that describes General Casualty's coverage as "excess over any collectible insurance providing such coverage on a primary basis." Richard's Progressive's policy contains an "other insurance" provision that describes any insurance Progressive provides as "excess over any other uninsured or underinsured motorist coverage, except for bodily injury to you or a relative when occupying a covered vehicle." Thus, Progressive contends its policy provides primary uninsured motorist benefits for Richard, but provides only excess benefits for his passenger, Edward.

¶ 7. At the trial court, General Casualty acknowledged that if the language of the two "other insurance" clauses is given full effect, then Progressive's coverage is excess to General Casualty's coverage. However, General Casualty asserted that Progressive's clause is void because it violates Wis. Stat. § 632.32(3)(a) by providing different UM coverage for passengers than it provides for primary insureds. The trial court concluded that Progressive's "other insurance" clause is void, thereby eliminating the basis for Progressive's argument that its UM insurance is excess to General Casualty's, and requiring Progressive to pay the first $100,000 of Edward's damages. This appeal followed.

DISCUSSION

¶ 8. The grant or denial of a declaratory judgment is addressed to the trial court's discretion. Gulmire v. St. Paul Fire & Marine Ins. Co., 2004 WI App 18, ¶ 10, 269 Wis. 2d 501, 674 N.W.2d 629. However, when the exercise of such discretion turns upon a question of law, we review the question de novo, benefiting from the trial court's analysis. Id. Here, the issue turns upon the construction of Wisconsin's omnibus statute governing automobile insurance, Wis. Stat. § 632.32, and the interpretation of two insurance contracts. These are also questions of law that we review independently. See Folkman v. Quamme, 2003 WI 116, ¶ 12, 264 Wis. 2d 617, 665 N.W.2d 857 (insurance contracts); Van Erden v. Sobczak, 2004 WI App 40, ¶ 11, 271 Wis. 2d 163, 677 N.W.2d 718 (statutory interpretation).

¶ 9. At the trial court, General Casualty successfully argued that Progressive's "other insurance" clause is void because it violates Wis. Stat. § 632.32(3)(a). That statute provides:

(3) RequiRed provisions. Except as provided in sub. (5), every policy subject to this section issued to an owner shall provide that:
(a) Coverage provided to the named insured applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy.

¶ 10. General Casualty maintains that Wis. Stat. § 632.32(3)(a) applies to UM coverage, and that Progressive's "other insurance" clause violates this statute by providing that the policy's UM coverage is excess insurance for non-relative occupants, as opposed to primary insurance, which is provided to insureds and relatives occupying the vehicle. If General Casualty is correct, then Progressive's "other insurance" clause is void and unenforceable. See Nicholson v. Home Ins. Cos., 137 Wis. 2d 581, 605, 405 N.W.2d 327 (1987) (policy provisions effectively reducing coverage re-, quired by statute are void and unenforceable), super-ceded by statute on other grounds as stated in Blazekovic v. City of Milwaukee, 2000 WI 41, ¶¶ 19, 20, 234 Wis. 2d 587, 610 N.W.2d 467.

¶ 11. Progressive argues first that Wis. Stat. § 632.32(3)(a) applies only to liability insurance, as opposed to indemnity insurance like UM coverage. See Mau v. North Dakota Ins. Reserve Fund, 2001 WI 134, ¶ 30 n.13, 248 Wis. 2d 1031, 637 N.W.2d 45 (UM and underinsured motorist (UIM) coverage provide indemnity coverage). In the alternative, Progressive contends that even if § 632.32(3)(a) applies to UM coverage, Progressive is not prohibited from providing UM coverage to an occupancy insured on an excess basis. We examine these arguments in turn.

I. Application of Wis. Stat. § 632.32(3)(a) to UM coverage

¶ 12. Progressive argues that Wis. Stat. § 632.32(3)(a) applies only to liability coverage. It notes that § 632.32(1) specifically indicates that the omnibus statute applies to liability insurance. Section 632.32(1) provides: Progressive also points to two cases that it claims support its opinion that § 632.32(3)(a) does not apply to UM or UIM coverage. See Martin v. Milwaukee Mut. Ins. Co., 146 Wis. 2d 759, 770, 433 N.W.2d 1 (1988); American Hardware Mut. Ins. Co. v. Steberger, 187 Wis. 2d 682, 684-85, 523 N.W.2d 187 (Ct. App. 1994).

Provisions of motor vehicle insurance policies.
(1) Scope. Except as otherwise provided, this section applies to every policy of insurance issued or delivered in this state against the insured's liability for loss or damage resulting from accident caused by any motor vehicle, whether the loss or damage is to property or to a person.

¶ 13. In response, General Casualty argues that Martin did not reach such a holding, and that American Hardware can be distinguished. We need not resolve the parties' competing interpretations of these cases because, in a subsequent case, our supreme court clarified the issue. In Mau, the court considered whether a UIM policy can define a named insured by requiring occupancy of a specific vehicle. 248 Wis. 2d 1031, ¶ 12. The court stated:

To determine the validity of the occupancy requirement for underinsured motorist coverage, we look to [Wis. Stat. §] 632.32, which, except as otherwise provided, applies to all motor vehicle insurance policies issued or delivered in Wisconsin. Some earlier cases suggest that certain provisions of § 632.32 apply only to liability policies, not indemnity insurance. See Martin v. Milwaukee Mut. Ins. Co., 146 Wis. 2d 759, 770, 433 N.W.2d 1 (1988). However, the plain language of several subsections in § 632.32 demonstrate the applicability of those sections to indemnity insurance. Furthermore, this court has applied § 632.32 to indemnity insurance.

Id., ¶ 30 (citations, statutory references and footnote omitted). We conclude that Mau is controlling and that consistent with Mau, § 632.32(3)(a) applies to UM coverage.

¶ 14. Progressive disagrees with this interpretation of Mau. It argues that when Mau states "the plain language of several subsections in [Wis. Stat.] § 632.32 demonstrate the applicability of those sections to indemnity insurancel],]" Mau, 248 Wis. 2d 1031, ¶ 30, the court was recognizing specific provisions of § 632.32 that apply to indemnity insurance, and did not include § 632.32(3)(a) in that list. Therefore, Progressive contends, Mau's "exclusion of the very subsection of the statute which General Casualty now asserts applies to indemnity insurance, is a recognition of the ruling in [Martin]." We are not persuaded. Mau states that "earlier cases suggest that certain provisions of § 632.32 apply only to liability policies, not indemnity insurance" and then goes on to list case law and statutory references that refute that suggestion. Mau, 248 Wis. 2d 1031, ¶ 30. We do not read Mou'b listing of cases and statutes as an exhaustive list of instances when § 632.32 applies to indemnity coverage, but rather as examples supporting the proposition that the omnibus statute applies to both liability and indemnity insurance.

¶ 15. Therefore, we conclude that Wis. Stat. § 632.32(3)(a) applies to UM coverage. However, that does not end our inquiry, because Progressive argues that even if the statute applies, its "other insurance" clause is nonetheless permitted under the statute.

II. Effect of Wis. Stat. § 632.32(3)(a) on Progressive's "other insurance" clause

¶ 16. Progressive relies on Wis. Stat. § 632.32(5)(e) in support of its assertion that it is not prohibited from providing different UM coverage to an occupancy insured than it would to its own named insured. Progressive notes that § 632.32(3)(a) recognizes that § 632.32(5) may provide exceptions to the applicability of § 632.32(3)(a) when it states "[ejxcept as provided in sub. (5)." Progressive argues that one of the provisions of § 632.32(5), § 632.32(5)(e), provides the authority for Progressive to offer only excess UM coverage to non-relative occupants. Section 632.32(5)(e) provides:

A policy may provide for exclusions not prohibited by sub. (6) or other applicable law. Such exclusions are effective even if incidentally to their main purpose they exclude persons, uses or coverages that could not be directly excluded under sub. (6) (b).

Relying on this statute, Progressive reasons: "Here, the legislature clearly and unambiguously expressed its intent... to allow insurance companies to provide exclusions not otherwise prohibited by law."

¶ 17. Progressive's reasoning is unpersuasive. Although Wis. Stat. § 632.32(5)(e) authorizes "exclusions not prohibited by [§ 632.32(6)] or other applicable law," § 632.32(5)(e) does not provide Progressive the relief it seeks. Providing different levels of UM coverage for non-relative occupants is prohibited by § 632.32(3)(a); nothing in § 632.32(5)(e) alters that prohibition.

¶ 18. Therefore, Progressive's "other insurance" clause, which fails to provide insurance coverage that "applies in the same manner and under the same provisions to any person using any motor vehicle described in the policy when the use is for purposes and in the manner described in the policy," see Wis. Stat. § 632.32(3)(a), is void and unenforceable, see Nicholson, 137 Wis. 2d at 605. As a result, Progressive will have to pay the first $100,000 in damages.

By the Court. — Judgment affirmed.

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


author: ANDERSON, PJ.

text:
    Racine Harley-Davidson, Inc., Petitioner-Respondent, v. State of Wisconsin Division of Hearings and Appeals, Respondent, Harley-Davidson Motor Company, Inc., Participant-Appellant.
    Court of Appeals

      No. 03-2628.

      Oral argument October 19, 2004.

    Decided December 22, 2004.

    2005 WI App 6
    (Also reported in 692 N.W.2d 670.)

      On behalf of the participant-appellant, the cause was submitted on the briefs of Peter J. Stone and Kelli A. Taffora of Foley & Lardner LLP, Milwaukee. There was oral argument by Peter J. Stone.

    On behalf of the petitioner-respondent, the cause was submitted on the brief of Paul R. Norman and Sarah A. Zylstra of Boardman, Suhr, Curry & Field LLP, Madison. There was oral argument by Paul R. Norman.

    Before Anderson, PJ., Brown and Snyder, JJ.

       Petition to review granted 3-8-2005.

   ANDERSON, PJ.

¶ 1. Harley-Davidson Motor Company, Inc. appeals from a circuit court order reversing a decision of the Division of Hearings and Appeals (DBA) and finding that Harley-Davidson is subject to a good cause hearing pursuant to Wis. Stat. § 218.0116(8) (2001-02) as a result of its decision to transfer a portion of Racine Harley-Davidson, Inc.'s (RHDI's) territory to another dealer. Harley-Davidson now argues that: (1) we should give "great weight" deference to the DHA's reasonable interpretation of Wis. Stat. ch. 218 and its application of that chapter to the parties' contract and (2) the DHA correctly determined that Harley-Davidson's alteration of RHDI's assigned territory did not constitute a modification of its "motor vehicle dealer agreement" and therefore RHDI was not entitled to a § 218.0116(8) good cause hearing.

¶ 2. As a threshold matter, we conclude that we must review the DHA's decision under the "great weight" deference standard. Bearing this deferential standard of review in mind, we hold that the DHA properly concluded that the assignment of territories was not part of the motor vehicle dealer agreement, as that phrase is understood in Wis. Stat. ch. 218, and, therefore, when Harley-Davidson transferred a portion of RHDI's territory to a neighboring dealer it did not trigger Wis. Stat. § 218.0116(8). Accordingly, we reverse the order of the circuit court and remand for proceedings consistent with this opinion.

Background

¶ 3. Harley-Davidson is licensed as a motor vehicle manufacturer and RHDI is licensed as a motor vehicle dealer pursuant to Wis. Stat. ch. 218. RHDI became a dealer of Harley-Davidson motorcycles in 1992.

¶ 4. The original 1992 dealer agreement between Harley-Davidson and RHDI was entitled "Harley-Davidson Dealer Contract." Under the agreement, RHDI's "Territory" included all of Racine county and no restrictions were placed on where or to whom RHDI could sell Harley-Davidson products.

¶ 5. In 1994, Harley-Davidson changed its policy regarding dealer territories. Using a uniform process applied to all dealers, Harley-Davidson began assigning zip codes to the dealer whose principal authorized location was closest to the centroid of the zip code, with a ten percent mileage credit not to exceed 1.5 miles to the dealer to whom the zip code was previously assigned. According to Harley-Davidson's Director of Dealer Development, zip code reassignments under this policy are frequent and routine and occur when new dealerships are created, existing dealerships relocate, or the post office changes zip code boundaries. Whenever a dealer relocates, Harley-Davidson reviews zip code assignments to determine whether the distance between the relocated dealer and the centroid of each surrounding zip code has changed sufficiently to require a zip code reassignment.

¶ 6. In late 1993 or early 1994, Harley-Davidson presented RHDI with a modified agreement, which reflected the change in policy regarding dealer territories. The document entitled "Harley Davidson, Inc. Motorcycle Division Motorcycle Dealer Contract" provided that Harley-Davidson would grant to RHDI the right "[t]o purchase and resell at retail, primarily to persons residing or doing business in the primary market area assigned under this Contract (referred to in this Contract as "Territory")." Specifically, the document entitled "General Conditions of Sales and Service" provided: "Seller will assign Dealer a geographic area from time to time as Dealer's primary market area .... [I]t is understood and agreed that (a) Seller may modify, alter or adjust Dealer's primary market area at any time, based on Seller's good faith business judgment." As part of this assignment process, Harley-Davidson proposed that the zip code 53105, which includes the City of Burlington, be removed from RHDI's territory and reassigned to Uke's Harley-Davidson, a neighboring dealer located in Kenosha.

¶ 7. In response, RHDI filed a complaint with the DHA contesting the proposed modifications of the 1992 contract and alleging a violation of Wis. Stat. ch. 218. RHDI argued that the centroid of the Burlington zip code was actually closer to its principal place of business in Racine than it was to Uke's place of business in Kenosha. Harley-Davidson re-examined its distance calculation, determined that RHDI was correct, and assigned the zip code to RHDI. Harley-Davidson sent a letter to RHDI confirming Harley-Davidson's agreement that the Burlington zip code would be assigned to RHDI's primary market area. RHDI's complaint was then dismissed.

¶ 8. Subsequently, Mark Ulinski, the owner of RHDI, met with his district manager. At the meeting he was presented with the agreement, which he signed, and on a separate sheet of paper, a list of zip codes to be included in RHDI's territory. The Burlington zip code was included in this list. Ulinski has since stated that he would not have dropped RHDI's protest of the modification of its original dealer contract if Harley-Davidson had not agreed in writing to assign the Burlington zip code to RHDI's territory. The new contract was dated May 25, 1994, and was set to expire in December 1998.

¶ 9. The dealer contract at issue was executed in December 1998 and was set to expire in December 2003. The document entitled "Harley-Davidson Motor Company Motorcyle Dealer Contract" confirms that geographic areas would be assigned from time to time as a territory and that Harley-Davidson could modify, alter or adjust the territory at any time based on its good faith business judgment. The document entitled "Harley-Davidson Motor Company General Conditions of Sales and Service" states, "Dealer's Territory is nonexclusive. Without limitation, Dealer recognizes that Seller may change its Territory if the change results from the establishment of an additional Harley-Davidson dealership or the relocation of an existing dealership."

¶ 10. Since Harley-Davidson changed its policy regarding dealer territories, the Burlington zip code has been part of RHDI's assigned territory. The parties agree that this territory assignment has been periodically referenced in connection with Harley-Davidson's direct mail program. However, in 2001, Harley-Davidson advised RHDI that Uke's would be moving its principal location from a downtown Kenosha site to a new facility along Interstate 94 that is next to the secondary retail location it established in 1999. Harley-Davidson determined that Uke's new principal location would be more than 1.5 miles closer to the centroid of the Burlington zip code than RHDI. As a consequence, Harley-Davidson advised RHDI that the Burlington zip code would be reassigned to Uke's when the relocation was completed.

¶ 11. In response to the removal of the Burlington zip code from its territory, RHDI filed an amended complaint pursuant to Wis. Stat. § 218.0116(8) with the DHA. Section 218.0116(8)(a) provides:

A manufacturer or distributor may not modify a motor vehicle dealer agreement during the term of the agreement or upon its renewal if the modification substantially and adversely affects the motor vehicle dealer's rights, obligations, investment or return on investment without giving 60 days written notice of the proposed modification to the motor vehicle dealer unless the modification is required by law, court order or the licensor. Within the 60-day notice period the motor vehicle dealer may file with the department of transportation and the division of hearings and appeals and serve upon the respondent a complaint for a determination of whether there is good cause for permitting the proposed modification. The division of hearings and appeals shall promptly schedule a hearing and decide the matter. Multiple complaints pertaining to the same proposed modification shall be consolidated for hearing. The proposed modification may not take effect pending the determination of the matter.

RHDI claimed that Harley-Davidson's stated intention to transfer the Burlington zip code from its assigned territory to Uke's after Uke's relocation to its new dealership facilities constituted a modification of the motor vehicle dealer agreement between the parties. Harley-Davidson filed a motion for summary judgment, seeking dismissal of RHDI's amended complaint. Harley-Davidson argued that RHDI's assigned territory was not contained within the four corners of the motor vehicle dealer agreement; therefore, a change in the composition of the assigned territory is not a modification of the dealer agreement.

¶ 12. In January 2003, the DHA issued a final ruling on the matter, granting summary judgment in favor of Harley-Davidson and dismissing RHDI's amended complaint. The Administrator for the DHA concluded:

2. A motor vehicle dealer agreement for purposes of Wis. Stat. § 218.0116(8) is defined at Wis. Stat. § 218.0101(1). In the instant case the "Harley-Davidson Motor Company Motorcycle Dealer Contract" and the "Harley-Davidson Motor Company General Conditions of Sales and Service" together comprise the "motor vehicle dealer agreement."
3. The assignment of a territory by Harley-Davidson for RHDI is not part of the motor vehicle dealer agreement between Harley-Davidson and RHDI. Therefore, the alteration of RHDI's assigned territory by Harley-Davidson does not constitute the modification of the motor vehicle dealer agreement.

¶ 13. RHDI filed a petition for review of the DHA decision. The circuit court reversed the DHA's final ruling, concluding that the sheet of paper containing the zip code assignments was part of the dealership agreement and therefore the modification of the assigned zip codes triggered Wis. Stat. § 218.0116(8). Harley-Davidson now appeals.

Standard of Review

¶ 14. Because the scope of our review underpins our analysis, and our decision is largely driven by the degree of deference owed, we begin with consideration of the appropriate standard of review. Harley-Davidson urges us to accord the DHA's ruling "great weight" deference because it is the administrative agency charged with reviewing motor vehicle dealer/manufacturer disputes under Wis. Stat. ch. 218 and the agency has used its expertise over the years to uniformly interpret the statute in accordance with the policies it is meant to protect. RHDI, on the other hand, argues that we should review the DHA's decision de novo. RHDI maintains that de novo review is appropriate both because this case presents a pure question of contract interpretation, a question of law, and because the DHA has no special expertise or experience in interpreting Wis. Stat. § 218.0116(8). We reject RHDI's arguments.

¶ 15. The interpretation of a contract is a question of law that is subject to de novo review. See Deminsky v. Arlington Plastics Mach., 2003 WI 15, ¶ 15, 259 Wis. 2d 587, 657 N.W.2d 411. However, when we undertake review of an agency decision, there are three levels of deference afforded conclusions of law and statutory interpretation. See Sauk County v. WERC, 165 Wis. 2d 406, 413, 477 N.W.2d 267 (1991).

¶ 16. When we afford "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., Inc. v. DOR, 211 Wis. 2d 819, 823, 565 N.W.2d 590 (Ct. App. 1997). 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.

¶ 17. In affording "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. Id. at 823-24. We afford "due weight" deference to the agency's determination when it has some experience in an area, but has not developed the expertise that necessarily places it in a better position than a court to make judgments regarding the interpretation of the statute. Id. at 823.

¶ 18. When we review an agency decision de novo, we give no deference to the agency's interpretation. See Brauneis v. LIRC, 2000 WI 69, ¶ 18, 236 Wis. 2d 27, 612 N.W.2d 635. De novo review is appropriate if any of the following is 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. Id.

¶ 19. RHDI claims that this case is similar to Wisconsin End-User Gas Ass'n v. PSC, 218 Wis. 2d 558, 565, 581 N.W.2d 556 (Ct. App. 1998), where we held that an agency's interpretation of a contract was subject to de novo review. There, a large gas company imposed penalty tariffs on gas customers for their unauthorized use of gas during a period of interruption. Id. at 561-62. The gas company assessed the tariffs based on certain language contained in a penalty clause in the contract between the parties. Id. The gas customers challenged the amount of the tariffs imposed, arguing that the gas company misinterpreted the penalty clause in the contract. Id. at 562-63. The gas customers petitioned the Public Service Commission (PSC) for the adjustment of the tariffs, but the PSC denied that request. Id. at 563. The circuit court reversed the PSC. Id. On appeal, the PSC argued that its interpretation of the contract language should be afforded "great deference." Id. at 563-64. We rejected that argument, concluding that the question presented involved a matter of contract interpretation — an area in which we have as much expertise as the PSC. Id. at 561-62.

The assessment of a penalty tariff in this case is not an issue of statutory interpretation; rather, it is an issue of contract interpretation. Ordinarily reviewing courts do not defer to the decisions of administrative agencies when considering pure questions of law. Matters of contract interpretation come before this court with frequency, and it is an area of law in which we have a great deal of experience and expertise. Furthermore, the construction of contract terms is circumscribed by specific rules of law. On these bases, we conclude that an agency's construction of a contract is subject to de novo review by this court.

Id. at 565 (citation omitted).

¶ 20. This case is readily distinguishable from Wisconsin End-User Gas Association. This case, unlike Wisconsin End-User Gas Association, does not involve purely contract interpretation and the application of black letter contract law; rather, it involves the interpretation of a statutory scheme and the application of that scheme to a set of facts.

¶ 21. Wisconsin Stat. § 218.0116(8), which was enacted in 1990, is part of the 1935 Wisconsin Auto Dealership Law. See 1989 Wis. Act 292, § 3; Forest Home Dodge, Inc. v. Karns, 29 Wis. 2d 78, 85, 138 N.W.2d 214 (1965). Implicit in this law is the recognition of the gross disparity of bargaining power between the manufacturer of automobiles and the local retailer. See Forest Home Dodge, 29 Wis. 2d at 85. It was enacted in recognition of the long history of the abuse of dealers by manufacturers. Id. The purpose of the law is to furnish the dealer with some protection against unfair treatment by the manufacturer. Id. In general, the law sets forth an administrative framework for dealing with the relationship between auto manufacturers and auto dealers. See id.

¶ 22. The legislature has entrusted the DHA with the difficult task of enforcing the statute, including Wis. Stat. § 218.0116(8), and its purposes. See generally Wis. Stat. §§ 218.0152, 218.0116(8)(b) and 227.43. To assist the DHA with the interpretation and application of the statute, the legislature chose to define the term "agreement." Wis. Stat. § 218.0101(1). This definition of the term "agreement," as it is understood within the context of Wis. Stat. ch. 218, applies to claims brought pursuant to § 218.0116(8). See Bosco v. LIRC, 2004 WI 77, ¶ 23, 272 Wis. 2d 586, 681 N.W.2d 157 ("[W]e read the language of a specific statutory section in the context of the entire statute.") See also § 218.0101 ("In ss. 218.0101 to 218.0163, unless the context requires otherwise"). Because the legislature saw fit to define the term "agreement," neither the DHA nor this court may turn to contract law to supply that definition. See Bosco, 272 Wis. 2d 586, ¶ 23 ("Terms that are specifically defined in a statute are accorded the definition the legislature has provided.").

¶ 23. When Harley-Davidson changed RHDI's assigned territories, RHDI had the choice of going to court and alleging a breach of contract or going to the DHA and alleging a modification of the agreement that was not based on good cause. RHDI has deliberately chosen to pursue its claims within the protective administrative framework offered by Wis. Stat. § 218.0116(8) rather than within a breach of contract claim in an adversarial judicial proceeding. Therefore, it is the statutory definition of the term "agreement," and not how it might be defined using contract law principles, that guided the DHA's analysis, and now must guide our own. Accordingly, the logic behind the Wisconsin End-User Gas Association court's, holding that de novo review is mandated in cases of strict contract interpretation does not apply.

¶ 24. While we find no published case in which the DHA has had the opportunity to interpret the definition of "agreement" within the context of a Wis. Stat. § 218.0116(8) claim, that is not a prerequisite to "great weight" deference. See Virginia Sur. Co. v. LIRC, 2002 WI App 277, ¶ 13, 258 Wis. 2d 665, 654 N.W.2d 306, review denied, 2003 WI 16, 259 Wis. 2d 102, 657 N.W.2d 707 (Feb. 19, 2003) (No. 02-0031). As the court has repeatedly stated:

The test is not, however, whether [the agency] has ruled on the precise — or even substantially similar— facts in prior cases .... Rather, the cases tell us that the 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.

Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 764, 569 N.W.2d 726 (Ct. App. 1997). As evidenced by numerous unpublished decisions, the DHA has considerable experience working with motor vehicle dealer agreements and the statutory scheme set forth in Wis. Stat. ch. 218. See also In re Motor Vehicle License of All Star Rent a Car, Inc., TR-02-0030, TR-02-0044 (review of a denial of a renewal of a motor vehicle dealer license); Dodge City of Milwaukee, Inc. v. Chrysler Corp., 94—H-852 (review of a dealer's protest of the establishment of a proposed dealership within the dealer's relevant market area); Don & Roy's Cycle Shop, Inc. v. Kawasaki Motors Corp. U.S.A., No. TR-00-0047 (review of a complaint protesting the establishment of a new dealer within another dealer's relevant market area). The DHA's frequent interpretations of ch. 218 are based on the expertise it has developed and provide uniformity and consistency in the application of the motor vehicle dealer law. Given these circumstances, we hold that the DHA's decision is entitled to "great weight" deference.

¶ 25. When an agency's conclusions of law are entitled to great weight deference, a court will refrain from substituting its view of the law for that of an agency charged with administration of the law and will sustain the agency's conclusions of law if they are reasonable. Brown v. LIRC, 2003 WI 142, ¶ 19, 267 Wis. 2d 31, 671 N.W.2d 279. Thus, a court should sustain an agency's conclusion of law even if an alternative view of the law is just as reasonable or even more reasonable. Id. An agency's conclusion of law is unreasonable and may be reversed by a reviewing court if it directly contravenes the words of the statute or the federal or state constitution, if it is clearly contrary to the legislative intent, history, or purpose of the statute, or if it is without a rational basis. Id.

Wis. Stat. Ch. 218

¶ 26. As explained, the DHA determined that Harley-Davidson's alteration of RHDI's assigned territory was not a modification of the "motor vehicle dealer agreement" and, therefore, Harley-Davidson did not violate Wis. Stat. § 218.0116(8). This conclusion is entirely reasonable given the circumstances of the parties' dealings and is in accordance with the statutory framework set forth in Wis. Stat. ch. 218.

¶ 27. Wisconsin Stat. § 218.0116(8) prohibits a manufacturer's unilateral modification of a "motor vehicle dealer agreement" without good cause, which is to be determined at a hearing held by the DHA. The term "agreement" for purposes of Wis. Stat. ch. 218 is defined at Wis. Stat. § 218.0101(1). "Agreement" means a contract that describes the franchise relationship between manufacturers, distributors, importers and dealers. Sec. 218.0101(1). Neither party disputes that both the document entitled "Harley-Davidson Motor Company Motorcycle Dealer Contract" and the document entitled "Harley-Davidson Motor Company General Conditions of Sales and Service" comprise the motor vehicle dealer agreement under the statute.

¶ 28. As discussed in the DHA's ruling, the assignment of territory by a manufacturer to a dealer is an important component of the relationship between a manufacturer and a dealer. Indeed, Wis. Stat. § 218.0114(11) requires a manufacturer to assign an area of sales responsibility to each of its dealers. However, neither § 218.0114(11) nor any other provision requires that the parties designate the dealer's specific area of sales responsibility in the motor vehicle dealer agreement.

¶ 29. Furthermore, as the DHA observed, the precise description of the assigned territory is not essential to the franchise relationship. Harley-Davidson has written policies governing the alteration of the assignment of territory to its dealers upon the establishment of a new dealer or the relocation of an existing dealer. As part of this policy, Harley-Davidson routinely modifies dealers' assigned territories for various reasons, such as the creation of new dealerships, the relocation of existing dealerships and changes of zip code boundaries by the post office. There is no indication that the legislature intended for each modification of a dealer's assigned territory, when made under a uniform policy like Harley-Davidson's, to become the potential subject of a complaint pursuant to Wis. Stat. § 218.0116(8).

¶ 30. Finally, the DHA reasonably concluded that the parties' dealings do not suggest an intention to include the list of RHDI's territory in the motor vehicle dealer agreement. In the previous document entitled "Harley Davidson Dealer Contract" the parties listed RHDI's assigned territory as Racine county. When Harley-Davidson switched from a system of using counties for assigning territories to dealers to a system of using zip codes, neither the document entitled "Harley-Davidson Motor Company Motorcycle Dealer Contract" nor the accompanying document entitled "Harley-Davidson Motor Company General Conditions of Sales and Service" describe the territories to be assigned to the dealer. In fact, the latter document states, "Without limitation, Dealer recognizes that [Harley-Davidson] may change its Territory if the change results from the establishment of an additional Harley-Davidson dealership or the relocation of an existing dealership." This policy of not including specific zip codes in dealer agreements makes perfect sense given the apparent frequency with which the zip code assignments change.

¶ 31. RHDI responds that Wis. Stat. ch. 218 and basic contract law require the court to hold that the assignment of territories is part of the motor vehicle dealer agreement. RHDI argues that because the two other documents that comprise the dealer agreement reference the performance of certain responsibilities within a territory to be designated by Harley-Davidson, the parties intended the assignment of territories to be a part of the motor vehicle dealer agreement and it should be considered an implied term of its franchise agreement. RHDI further claims that any other reading and application of the statute, particularly its definition of the term "agreement," would contravene the intent of the legislature to use ch. 218 as a vehicle to "ensur[e] fair dealing by motor vehicle manufacturers towards their dealers."

¶ 32. First, as we have explained, we review the parties' agreement using the definition of "agreement" and the statutory framework for motor vehicle dealer agreements provided in Wis. Stat. § 218.0101(1) as our guide; we do not look to contract law to supply that definition. Second, while RHDI may advance a reasonable alternative to the DHA's interpretation and application of Wis. Stat. ch. 218, we emphasize that we are reviewing the DHA's decision under the guise of "great weight" deference. When we apply such a standard, we must affirm an agency's reasonable decision even if an alternative more reasonable interpretation of a statute is available. Zignego, 211 Wis. 2d at 823. As we have demonstrated, the language of the statute and the facts of the case support the DHA's ruling. Furthermore, simply because the legislature intended for ch. 218 to protect dealers from manufacturer abuses does not mean that under no circumstances can the manufacturer prevail in a dispute under Wis. Stat. § 218.0116(8). There is no evidence indicating that Harley-Davidson removed the description of its dealers' assigned territories from the motor vehicle dealer agreement in order to avoid complaints under ch. 218. Absent such evidence we fail to see how the DHA's fact-specific finding that the assignment of territories was not an essential term in the franchise agreement between the parties contravenes legislative intent. We therefore hold that the DHA's interpretation and application of ch. 218 should be sustained. The decision of the circuit court is reversed.

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

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

       In its brief, RHDI sets forth in some detail the impact of losing the Burlington zip code for its territory. According to RHDI, the Burlington zip code produced the second highest sales in its territory in 2001. The reassignment of zip codes would reduce the forecasted Harley-Davidson market potential of RHDI's territory in 2005 from 391 to 343, while increasing the 2005 forecasted market potential in Uke's territory to 429.
      RHDI's concern over losing the Burlington zip code was also prompted by a letter that Ulinski received in January 1994 in response to his request for additional allocation of product. In that letter, he was informed that because RHDI's allocation already equaled its defined market potential, his request for additional allocation would not be considered. As explained, the loss of the Burlington zip code from its territory would cause RHDI's market potential to decrease, thus hampering its ability to receive additional product allocation in the future.
      In addition, RHDI would not be eligible to participate in Harley-Davidson's direct mail program or to be considered for a second retail location or alternative retail outlet in the Burlington zip code. At the time that RHDI was notified that the Burlington zip code would be removed from its territory, it had an application pending for the establishment of a second retail location in the zip code. The decision to remove the zip code from its territory was effectively a rejection of the second retail location.

       We note that these cases can be easily accessed at: http://dha.state.wi.us/home/default/htm.

       In support of its argument that the DHA's holding runs contrary to the purpose of Wis. Stat. ch. 218, RHDI relies on Nissan North America, Inc. v. Royal Nissan Inc., 794 So. 2d 45, 49 (La. Ct. App. 2001), in which the Louisiana Court of Appeals held that a manufacturer's alteration of the assigned territories of existing dealers was a modification of the respective dealer agreements. RHDI's reliance on Nissan is misplaced. In that case, unlike here, the assigned territories for each of the Nissan dealers were specified in their respective dealer agreements. Id. at 47 n.1 ("Each dealer agreement with the distributor outlines that dealer's area of responsibility, or [Primary Market Area]"). There is no indication that the court would have reached the same result if the outline of the assigned territories had been in a separate document.


text:
    In the Matter of Disciplinary Proceedings Against Stacy Michelle Rios, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Stacy Michelle Rios, Respondent.
    Supreme Court

      No. 04-1665-D.

      Decided March 8, 2005.

    2005 WI 22
    (Also reported in 693 N.W.2d 71.)
   The Court entered the following order on this date:

We review the findings of fact, conclusions of law and recommendations of Referee John A. Fiorenza. Attorney Stacy M. Rios was found to have engaged in unprofessional conduct in the course of her practice of law in violation of the Rules of Professional Conduct. The referee's recommendation was for a 60-day suspen- ’ sion of Attorney Rios' license to practice law, after all current suspensions have been lifted, and that Attorney Rios be required to pay the costs of the proceeding.

We agree that the seriousness of Attorney Rios's misconduct warrants suspension of her license to practice law and we approve the referee's findings, conclusions, and recommendations.

Attorney Rios was admitted to practice law in Wisconsin on June 19,1995. Her license to practice law in Wisconsin is presently under suspension. On October 31, 2001 her license was administratively suspended for non-payment of State Bar dues. On June 3, 2002 her license was suspended for non-compliance with continuing legal education requirements.

The matter before the court involves Attorney Rios' representation of T.S., in connection with a criminal proceeding. T.S. was convicted in federal court in 1995 and sentenced to a lengthy term of incarceration. He filed an appeal that was unsuccessful. The court subsequently appointed Attorney Rios to pursue T.S.'s second appeal. That appeal was denied on August 25, 1995.

In the Spring of 2000, T.S. privately retained Attorney Rios to file a petition for writ of habeas corpus on his behalf, pursuant to 28 U.S.C. § 2255. The deadline for filing the motion was August 25, 2000. Attorney Rios received $2,000 from T.S.'s family to pursue this matter. T.S. never received a fee agreement from Attorney Rios and Attorney Rios failed to file the motion on T.S.'s behalf by the deadline. T.S. attempted to contact Attorney Rios after the deadline passed, but Attorney Rios refused to accept T.S.'s telephone calls. T.S.'s mother was also unsuccessful in her attempts to communicate with Attorney Rios. On September 11, 2000, T.S.'s mother confirmed with the court that no motion had been filed on T.S.'s behalf.

Attorney Rios apparently advised the Office of Lawyer Regulation (OLR) that her "strategy" was to purposely not file the motion on the deadline and that she intended to assist T.S. in filing a pro se motion claiming lawyer negligence. T.S., however, was not advised of this strategy prior to the deadline for filing the petition for writ of habeas corpus. After the disciplinary investigation commenced, Attorney Rios did return the $2,000 retainer to T.S.'s family. However, Attorney Rios failed to cooperate with the disciplinary investigation, and impeded efforts to communicate with her by failing to advise the OLR of a change in business address. Attorney Rios eventually withdrew her answer to the Complaint; she does not contest the allegations contained in the Complaint.

The OLR alleged and the referee found that by failing to timely file a petition for writ of habeas corpus on behalf of T.S., Attorney Rios failed to represent a client with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation, in violation of SCR 20:1.1.

The OLR alleged and the referee found that by failing to respond to letters and telephone calls from T.S. and his family, Attorney Rios failed to keep T.S. reasonably informed about the status of a matter and to promptly comply with reasonable requests for information in violation of SCR 20:1.4(a).

The OLR alleged and the referee found that by failing to explain her purportedly legal strategy to T.S. prior to the filing deadline, Attorney Rios failed to explain a matter to the extent reasonably necessary to permit T.S. to make an informed decision regarding the representation, in violation of SCR 20:1.4(b).

The OLR alleged and the referee found that by failing to return T.S.'s file after he requested it, Attorney Rios failed to timely surrender papers and property to which T.S. was entitled upon termination of representation, in violation of SCR 20:1.16(d).

The OLR alleged and the referee found that by failing to respond to telephone calls and other attempts at contact by the OLR's District Committee investigators, Attorney Rios failed to provide relevant information in the course of the investigation in violation of SCR 21.15(4), 22.03(2), 22.03(6) and 22.04(1), constituting misconduct under SCR 20:8.4(f).

The referee recommended that Attorney Rios' license be suspended for a period of 60 days, effective after all current suspensions have been lifted, and that she be required to pay the costs of the disciplinary proceeding.

We agree that the seriousness of Attorney Rios's misconduct warrants suspension of her license to practice law, and we approve the findings, conclusions, and recommendations. Therefore,

IT IS ORDERED that the license of Stacy M. Rios to practice law in Wisconsin is suspended for a period of 60 days [effective the date all other suspensions are lifted];

IT IS FURTHER ORDERED that, if she has not already done so, Attorney Stacy M. Rios comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended;

IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Stacy M. Rios pay to the Office of Lawyer Regulation all the costs of this proceeding, provided that if such costs are not paid within the time specified and absent a showing to the court of her inability to pay the costs within that time, the license of Stacy M. Rios to practice law in Wisconsin shall be suspended until further order of this court.

       SCR 20:1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

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

       SCR 20:1.4(b) provides: "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

       SCR 20:1.16(d) provides: "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted hy other law."

       SCR 21.15(4) provides: "Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's willful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys."

       SCR 22.03(2) provides in relevant part: "The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response."

       SCR 22.03(6) provides: "In the course of the investigation, the respondent's willful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."

       SCR 22.04(1) provides in relevant part: "A respondent has the duty to cooperate specified in SCR 21.15 (4) and 22.03 (2) in respect to the district committee."

       SCR 20:8.4(f) provides: It is misconduct for a lawyer to: "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."