source: Caselaw Access Project

author: PATIENCE DRAKE ROGGENSACK, J. SHIRLEY S. ABRAHAMSON, C.J.

license: Public Domain

text:
    David Zastrow, the Employee Stockholders of Perry Printing, Larry J. Gocker, Neal C. Kopplin, Catherine Thompson and Eunice Weihert, Plaintiffs-Appellants-Cross-Respondents-Petitioners, v. Journal Communications, Inc., Journal Employees Stock Trust (JESTA) and Trustees of Journal Employees Stock, Defendants-Respondents-Cross-Appellants, Perry Printing Division n/k/a Northstar Printgroup, Inc., Paul M. Bonaiuto, Keith M. Spore, Executive Risk Indemnity, Inc., Robert A. Kahlor, Steven J. Smith, Thomas M. Karavakis, Peter P Jarzembinski and Douglas G. Kiel, Defendants-Respondents.
    Supreme Court

      No. 2004AP276.

      Oral argument February 23, 2006.

      Decided June 20, 2006.

    2006 WI 72
    (Also reported in 718 N.W.2d 51.)

      For the plaintiffs-appellants-cross-respondents-petitioners there were briefs by Kevin Demet, Donal Demet, and Demet & Demet SC, Milwaukee, and oral argument by Kevin Demet.

    For the defendants-respondents-cross-appellants there was a brief by Thomas L. Shriner, Jr., David W. Simon, and Foley & Lardner LLP, Milwaukee, and oral argument by Thomas L. Shriner, Jr.

    An amicus curiae brief was filed by Jennifer L. Peterson and LaFollette Godfrey & Kahn, Madison, on behalf of Wisconsin Manufacturers and Commerce.

       Motion for reconsideration filed 7-6-06, denied 10-3-06.

   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. In this review of a court of appeals decision that reversed and remanded to the circuit court to dismiss plaintiffs' claims for breach of fiduciary duty based on a statute of limitations defense, we are asked to determine whether a claim for breach of fiduciary duty of loyalty must be intentional, or whether it can also be based on negligence. We conclude that the circuit court found that the Trustees of Journal Employees Stock (Trustees) created circumstances that adversely affected the plaintiffs' interests by giving plaintiffs incomplete information relative to plaintiffs' holdings, which we conclude is a breach of the fiduciary duty of loyalty, an intentional tort. As a result, the two-year statute of limitations found in Wis. Stat. § 893.57 (2003-04), which is applicable to intentional torts, requires dismissal of the lawsuit. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2. Plaintiffs are former employees of Perry Printing (Perry), which was a wholly owned subsidiary of Journal Communications, Inc. (Journal Communications). Since 1937, 90 percent of Journal Communications' stock has been held in the Journal Employees Stock Trust (Trust). Administration of that Trust is governed by the Journal Employees' Stock Trust Agreement (JESTA) and managed by the Trustees of the Trust.

¶ 3. As a part of their employee benefits, employees of Perry could, under certain circumstances, purchase units of the Trust (Trust-units) at a price that was formulaically determined. The JESTA required employees who owned Trust-units and whose employment terminated for any reason other than retirement to immediately offer for sale to persons who were eligible purchasers under the JESTA all Trust-units at the then-current formula price. The JESTA also provided that when an employee retired, the employee was permitted to offer his or her Trust-units for sale over a period of ten years, with not less than ten percent of the Trust-units offered for sale in each year. Having an extended sell-back opportunity is claimed to be beneficial because the Trust-units have always appreciated in value.

¶ 4. In 1995 as part of its corporate restructuring, Journal Communications sold Perry's assets. The sale agreement required the buyer to continue to operate the business and to offer similar positions with comparable compensation and benefits to all Perry employees. When the sale closed, all employees were terminated by Perry and rehired by the buyer of Perry's assets.

¶ 5. Because their employment with a Journal Communications company terminated when Perry was sold, under the JESTA, the former employees had to offer to sell back their Trust-units immediately, unless they retired. In that case, the JESTA accorded them ten years to accomplish the sell-back. None of the employees actually retired, and the Trustees did not treat any of the Perry employees as retirees, even though some who accepted new employment with the buyer were eligible to retire. Instead, the Trustees told the former employees of Perry they had one to five years, depending on how long each person had owned the Trust-units, during which they had to re-sell them.

¶ 6. In April of 2000, former Perry employees who had been employed on the date of the Perry asset sale and who had sold their Trust-units at the time of the corporate restructuring, filed a class action against Journal Communications, the Trust, and its Trustees (collectively, the defendants). The complaint alleged that the plaintiffs were entitled under the JESTA to be treated as retirees with the right to sell their Trust-units over a ten-year period, but that the Trustees denied them this right. Plaintiffs' claims included breach of fiduciary duty, breach of contractual rights and denial of a statutory right to wages under ch. 109.

¶ 7. The defendants moved for partial summary judgment, asking the circuit court to reject these theories because many plaintiffs were not eligible to retire and of those who were eligible, none had retired. Eventually, after reaching a decision on that initial motion and several other motions that followed, the circuit court granted the defendants' request to dismiss the complaint and amended complaint, in part. It denied all claims relative to those former employees who were not eligible to retire when Perry's assets were sold, and it dismissed all other claims for relief, except those for breach of fiduciary duty.

¶ 8. As part of the defendants' motions, they asserted that the two-year statute of limitations for intentional torts, Wis. Stat. § 893.57, barred the plaintiffs' breach of fiduciary duty claim. The circuit court did not agree. Instead, it concluded that not all breaches of fiduciary duty are intentional torts, reasoning that there is a distinction between claims based on negligent conduct and claims that are based on intentional conduct or conduct that evinces a reckless disregard of another's rights. For breaches of duty based on negligent conduct, the circuit court reasoned that the six-year statute of limitations in either Wis. Stat. §§ 893.52 or 893.53 applied. The circuit court determined that the applicable moment at which to toll the statute of limitations was the date of each plaintiffs sale of his or her last Trust-unit, and that any time-bar would depend upon that date for each individual plaintiff.

¶ 9. The breach of fiduciary duty claims of the plaintiffs who were eligible to retire when Perry's assets were sold were tried to the court. Subsequent to the trial, the court made the following findings and conclusions: (1) none of the plaintiffs had intended to retire; (2) the Trustees told the plaintiffs they had to sell back their Trust-units over a one to five year period after leaving their employment with Perry; (3) the defendants had a fiduciary obligation to tell the plaintiffs that they could retire from Perry before the sale closed, which would have made them eligible for a ten-year sell-back period; (4) retirement would mean those who made that choice would not be entitled to automatic employment by the buyer, but would have to apply for such employment; (5) three of the plaintiffs would have retired, if the Trustees had told them they could do so; (6) the same three plaintiffs did not know about the ten-year sell-back opportunity; (7) the Trustees had a conflict of interest with respect to advising the plaintiffs about a choice of either retirement or immediate employment with the buyer because the Trustees, as employees of Journal Communications, had the right to purchase some of the Trust-units sold by the plaintiffs; (8) the Trustees negligently failed to fulfill their duty to advise plaintiffs; and (9) the six-year statute of limitations applies.

¶ 10. The defendants appealed, challenging the circuit court's application of a six-year statute of limitations and raising Clause 33 of the JESTA as a bar to all negligence claims. The defendants asserted that the conduct found by the circuit court as proof of plaintiffs' claims was a violation of the Trustees' duty of loyalty to the plaintiffs. As such, it is an intentional tort and barred by the two-year statute of limitations.

¶ 11. The court of appeals reasoned that Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, which we decided after the circuit court's decision, controlled because Beloit Liquidating concluded that the two-year statute of limitations for intentional torts applies to breach of fiduciary duty claims. Zastrow v. Journal Communications, Inc., 2005 WI App 178, ¶ 2, 286 Wis. 2d 416, 703 N.W.2d 673. The plaintiffs on appeal did not dispute that if the two-year statute of limitations applies, their claims were not timely brought. Id. Accordingly, the court of appeals reversed the circuit court and remanded with directions to dismiss the complaint. Id.

II. DISCUSSION

A. Standard of Review

¶ 12. Our review requires us to choose and apply the appropriate Wisconsin statute to the plaintiffs' claims to determine if they are time-barred. Choosing the correct statute of limitations involves a question of law that we independently review. Estate of Hegarty v. Beauchaine, 2001 WI App 300, ¶ 14, 249 Wis. 2d 142, 638 N.W.2d 355. Whether one breached a fiduciary duty is also a question of law that we review independently. Jorgensen v. Water Works, Inc., 2001 WI App 135, ¶ 8, 246 Wis. 2d 614, 630 N.W.2d 230.

B. Wisconsin Stat. §§ 893.57 and 893.43

¶ 13. A question in our review of the court of appeals decision is which statute of limitations applies to the plaintiffs' claims: the two-year statute of limitations in Wis. Stat. § 893.57, or the six-year limit found in either Wis. Stat. §§ 893.43 or 893.52. This question is answered by the answers to two broader questions: (1) whether a breach of the fiduciary duty of loyalty is always an intentional tort and (2) whether the circuit court found that the Trustees breached their fiduciary duty of loyalty.

¶ 14. Wisconsin Stat. § 893.57, the statute of limitations for intentional torts, states:

An action to recover damages for libel, slander, assault, battery, invasion of privacy, false imprisonment or other intentional tort to the person shall be commenced within 2 years after the cause of action accrues or be barred.

The parties do not dispute the overall meaning of the statute, but rather, they ask us to answer the question of whether the plaintiffs' claims, which the circuit court found the plaintiffs proved, are time-barred because they are intentional torts.

¶ 15. The plaintiffs contend that the defendants negligently breached their fiduciary duty. Based on that theory, plaintiffs claim that the six-year statute of limitations of Wis. Stat. §§ 893.52 or 893.53 applies to their claims. Section 893.52 states:

An action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred, except in the case where a different period is expressly prescribed.

Section 893.53 states:

An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 6 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred.

¶ 16. The plaintiffs assert that the Trustees committed two types of breaches of fiduciary duty: an intentional breach and a negligent breach. They argue that the court of appeals made an artificial distinction between negligence and the negligent breach of a fiduciary duty. In sum, their argument implies that where a trustee has a fiduciary duty, all potential errors of judgment are breaches of a fiduciary duty, although some can be intentional and some can be negligent.

¶ 17. Plaintiffs argue that the defendants' conduct contravened their duties as fiduciaries because they acted in their own self-interest due to their ability to purchase some of the Trust-units plaintiffs sold. They assert, and the circuit court found, that telling the plaintiffs they had to sell back their Trust-units over a one to five year period, while not telling them that the JESTA provided for a ten-year sell-back opportunity if they retired, was not done in good faith. At the same time, plaintiffs assert that these actions constitute negligent breaches of fiduciary duty, are not intentional acts, and therefore their claims come under the six-year statute of limitations in either Wis. Stat. §§ 893.52 or 893.53.

¶ 18. The defendants, on the other hand, argue that according to our decisions in Beloit Liquidating and Warmka v. Hartland Cicero Mutual Insurance Co., 136 Wis. 2d 31, 400 N.W.2d 923 (1987), breach of fiduciary duty claims are intentional tort claims and are time-barred by Wis. Stat. § 893.57. They note that as a result, the plaintiffs are in a catch-22 that leaves them without an actionable claim no matter how the defendants' conduct is classified, because any remaining claims not considered a breach of the fiduciary duty of loyalty constitute claims of negligence that are expressly precluded by the limitation of liability provision in Clause 33 of the JESTA.

¶ 19. The defendants argue that the court of appeals was correct in concluding that Beloit Liquidating controlled. In Beloit Liquidating, 270 Wis. 2d 356, ¶ 40, we held that Wis. Stat. § 893.57 barred a claim for breach of fiduciary duty where a liquidating trust that was established under a Chapter 11 debtor's plan brought an action against the debtor's officers and directors. It was alleged that the officers and directors had "allowed the corporation to enter into money-losing contracts, [had] failed to keep adequate accounting systems to deal with the losses, [had] continued operations after prudent managers would have shut the corporation down, and [had] failed to disclose the corporation's losses." Id., ¶ 10. The court of appeals in its decision in the case before us reasoned that for purposes of deciding whether the claimed breach of fiduciary duty is an intentional tort, the conduct of the Trustees here was not significantly different from what was held to be an intentional tort by the officers and directors in Beloit Liquidating. Zastrow, 286 Wis. 2d 416, ¶ 16.

¶ 20. The plaintiffs respond to the alleged precedent of Beloit Liquidating and Warmka by asserting that in Warmka, the basis for the court's decision regarding the statute of limitations was a rejection of a one-year contractual statute of limitations and also that the suit had been commenced within two years. The plaintiffs also argue Warmka never actually decided the issue of whether breaches of fiduciary duty are always intentional torts, both because of the nature of the holding in the case and because it involved only intentional bad faith insurance practices.

¶ 21. The parties agree that the Trustees are fiduciaries with regard to the Trust and with regard to the plaintiffs. They do dispute whether Journal Communications and the Trust, itself, is a fiduciary of the plaintiffs. Plaintiffs' claims of breach of fiduciary duty are focused solely on the actions and omissions of the Trustees. Therefore, we need analyze only the actions of the Trustees in order to decide the questions presented by this review.

¶ 22. It is well established in Wisconsin that trustees have a fiduciary duty in managing a trust. Hatleberg v. Norwest Bank Wis., 2005 WI 109, ¶ 21, 283 Wis. 2d 234, 700 N.W.2d 15 (citing Sensenbrenner v. Sensenbrenner, 76 Wis. 2d 625, 635, 252 N.W.2d 47 (1977)). Furthermore, Wisconsin has enacted the Uniform Fiduciaries Act, which defines "fiduciary" to include "a trustee under any trust. . . Wis. Stat. § 112.01(l)(b).

¶ 23. What is at issue, and what we must determine, is whether the breach of fiduciary duty claims the circuit court found the plaintiffs proved were properly dismissed because the two-year statute of limitations applies to them. The circuit court found the Trustees breached their fiduciary duty to the plaintiffs because the Trustees told the plaintiffs "they had to sell-back their Trust units over a 1 to 5 year period, and no information was provided plaintiffs in writing about the availability of the 10-year sell-back right upon retirement." Mem. Decision After Trial 15 (Jefferson County Cir. Ct. Mar. 4, 2003). The circuit court's factual findings and legal conclusion in that regard are not contested.

C. Fiduciary Duty

¶ 24. In order to better understand the claims tried here, we begin by examining the nature of a fiduciary duty. We are assisted by various scholarly sources and by established principles of fiduciary law set out in Wisconsin appellate court decisions.

¶ 25. The foundations of fiduciary law originated in courts of equity where it was developed to address claimed abuses by one who had accepted a position of authority with regard to the affairs of another. Eileen A. Scallen, Promises Broken vs. Promises Betrayed: Metaphor,; Analogy, and The New Fiduciary Principle, 1993 U. Ill. L. Rev. 897, 905-06 (hereinafter, Promises Broken vs. Promises Betrayed). The term "fiduciary" has been applied to many different types of relationships that have varying obligations, e.g., "trustee to beneficiary, guardian to ward, agent to principal, attorney to client." Id., at 905 n.22. Courts have developed fiduciary law by analogy: by identifying paradigm cases in which a fiduciary relationship was found to exist and examining whether the relationship under consideration "is sufficiently like those in the paradigm cases to support an extension of the obligation to that relationship." Deborah A. DeMott, Beyond Metaphor: An Analysis of Fiduciary Obligation, 1988 Duke L.J. 879, 879 (hereinafter, Beyond Metaphor).

¶ 26. Perhaps as a result of this long evolution, clearly defining the duties of a fiduciary in a particular situation is difficult, as Deborah A. DeMott aptly explained:

[ A] [fiduciary obligation is one of the most elusive concepts in Anglo-American law. Applicable in a variety of contexts, and apparently developed through a jurisprudence of analogy rather than principle, the fiduciary constraint on a party's discretion to pursue self-interest resists tidy categorization. Although one can identify common core principles of fiduciary obligation, these principles apply with greater or lesser force in different contexts involving different types of parties and relationships. Recognition that the law of fiduciary obligation is situation-specific should be the starting point for any further analysis.

Id.

¶ 27. However, in any analysis of a claimed breach of fiduciary duty, there are two central questions to address: was the relationship a fiduciary relationship, and if so, what is the nature of the fiduciary duty that is at issue? Promises Broken vs. Promises Betrayed, supra, at 905. Because there is no question that the Trustees who managed the Trust under the terms set out in the JESTA were fiduciaries, at least in regard to the plaintiffs, we explore the second question.

¶ 28. The expression, fiduciary duty, relates to those obligations that are peculiar to a fiduciary and are based on the conscious undertaking of a special position with regard to another. William A. Gregory, The Fiduciary Duty of Care: A Perversion of Words, 38 Akron L. Rev. 181, 185-86 (2005) [hereinafter, The Fiduciary Duty of Carel. A consistent facet of a fiduciary duty is the constraint on the fiduciary's discretion to act in his own self-interest because by accepting the obligation of a fiduciary he consciously sets another's interests before his own. Beyond Metaphor, supra, at 882.

¶ 29. This constraint on acting in one's own self-interest has been described as a fiduciary's duty of loyalty. Id. However, the duty of loyalty is broader than simply requiring the fiduciary to refrain from acting in his own self-interest. The Fiduciary Duty of Care, supra, at 183. For example, it also may require keeping a beneficiary's information confidential, id. at 193 n.107 (citing 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 14.1 (4th ed. 1996)), and fully disclosing to the beneficiary all information relevant to the beneficiary's interest, id. at 183-85. Webster defines loyalty as "tenacious adherence" to principle and an obligation "based on individual choice." Webster's Third New International Dictionary 1342 (14th ed. 1961).

¶ 30. A breach of the duty of loyalty imports something different from mere incompetence; it "connotes disloyalty or infidelity." The Fiduciary Duty of Care, supra, at 183 (citation omitted). At its core, a fiduciary's duty of loyalty involves a state of mind, so that a claimed breach of that duty goes beyond simple negligence. For example, a lawyer can breach his fiduciary duty of loyalty to a client by entering into a contract with a client without full disclosure that the contract will benefit the lawyer and potentially disadvantage the client. However, simple carelessness in drafting a will so that it does not achieve the tax savings that the client requested is negligence. Neither duty is of lesser importance; they are just different obligations. Said otherwise, "not every legal claim arising out of a relationship with fiduciary incidents will give rise to a claim for breach of fiduciary duty." Id. at 186 (citation omitted).

¶ 31. The courts of Wisconsin have followed the general principles we set out above. For example, we have held that a fiduciary relationship results in the legal assumption of the "obligation to act for another's benefit." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Boeck, 127 Wis. 2d 127, 136, 377 N.W.2d 605 (1985). The fiduciary's duty of loyalty is "to act solely for the benefit of the principal in all matters connected with the agency, even at the expense of the agent's own interests." Losee v. Marine Bank, 2005 WI App 184, ¶ 16, 286 Wis. 2d 438, 703 N.W.2d 751 (citation omitted). Courts have characterized that obligation as one of fidelity and loyalty. Id., ¶ 19 (citation omitted). The fiduciary relationship comes into being by the manifestation of consent by the fiduciary to act on behalf of another. State v. Knight, 2000 WI App 16, ¶ 12, 232 Wis. 2d 305, 606 N.W.2d 291 (citing Restatement (Second) of Agency § 1(1) (1958)). The court of appeals recently examined the breach of the duty of loyalty based on the allegation that an employee gave his employer's confidential information to a competitor of the employer. Aon, 2006 WI App 4, ¶ 31. We have also held that an employee's theft from his employer is a breach of an employee's duty of loyalty. Hartford Elevator, Inc. v. Lauer, 94 Wis. 2d 571, 580, 289 N.W.2d 280 (1980).

¶ 32. A fiduciary relationship may be created by contract, such as the relationship between a trust and trustee. Prod. Credit Ass'n of Lancaster of Wis. v. Croft, 143 Wis. 2d 746, 752, 423 N.W.2d 544 (Ct. App. 1988). Or, it may arise from a formal legal relationship such as attorney and client, guardian and ward. Id.

¶ 33. When the fiduciary is a trustee, generally the tasks that the trustee is agreeing to undertake are set out in a trust agreement. Hatleberg, 283 Wis. 2d 234, ¶ 19. "[T]he instrument creating the trust... is to be looked to for stipulations fixing the obligations of the parties." Id. (citing McGeoch Bldg. Co. v. Dick & Reuteman Co., 253 Wis. 166, 175, 33 N.W.2d 252 (1948)). A trustee must comply with the terms of the trust under which he agrees to perform certain tasks. Saros v. Carlson, 244 Wis. 84, 88, 11 N.W.2d 676 (1943).

¶ 34. We reviewed the duty of loyalty of a trustee in Hammes v. First National Bank & Trust Co. of Racine, 79 Wis. 2d 355, 255 N.W.2d 555 (1977). Hammes required us to consider the breach of fiduciary duty claims of trust beneficiaries brought against former trustees to determine whether those claims were barred under principles of res judicata. Id. at 359. In deciding whether the claims could be maintained, we reviewed the common law relating to the obligations of a trustee. One of the allegations made was that the trustees did not disclose all the material facts that should have been disclosed to the beneficiaries before the beneficiaries agreed to sell their stock and that the lack of disclosure benefited the trustees. Id. at 367. We explained, "It is a fundamental principle of the law of trusts that the trustee is under a duty of undivided loyalty to the beneficiaries of the trust." Id. (citing Dick & Reuteman Co. v. Doherty Realty Co., 16 Wis. 2d 342, 348, 114 N.W.2d 475 (1962)). We explained that this duty of loyalty requires that a trustee not profit, personally, from his position as a trustee. Id. at 368. We pointed out that the duty of loyalty also encompasses a "trustee's affirmative duty to make full disclosure" of all facts relevant to the transaction the beneficiary is about to undertake. Id. at 369.

¶ 35. With the general principles of the fiduciary duty of loyalty in mind, we are persuaded that there is a distinct difference between a claim for the breach of the fiduciary duty of loyalty and a claim for the breach of the duty of ordinary care, i.e., a negligence claim. That difference arises from the conscious assumption of the role of fiduciary, on which the law imposes an obligation of absolute loyalty in all matters relating to the object of the duty, e.g., the beneficiaries of a trust. A fiduciary agrees to assume a position of authority in regard to the affairs of another in which position the fiduciary may have access to confidential information or to property of the object of the fiduciary's obligation. Therefore, if a trustee does not make a full disclosure of material facts to a beneficiary, that conduct is a breach of the trustee's duty of loyalty. The law concludes this breach is intentional. Beloit Liquidating, 270 Wis. 2d 356, ¶ 40. Similarly, if a trustee personally profits from his role as a trustee, that conduct is a breach of the trustee's duty of loyalty, and the law concludes it is intentional. Cmty. Nat'l Bank v. Med. Benefit Adm'rs, LLC, 2001 WI App 98, ¶ 8, 242 Wis. 2d 626, 626 N.W.2d 340.

¶ 36. The concept that a fiduciary can comport with his fiduciary duty of loyalty, but nevertheless violate the duty of ordinary care, also is supported by the standard set out in Wis. Stat. § 112.01(l)(c), the Wisconsin version of the Uniform Fiduciaries Act. Section 112.01(l)(c) states: "A thing is done 'in good faith' within the meaning of this section, when it is in fact done honestly, whether it be done negligently or not." Section 112.01(l)(c) recognizes that negligent conduct does not rise to the level of a breach of fiduciary duty. We conclude that good faith is encompassed within what we have more succinctly referred to as the duty of loyalty that arises when a fiduciary role is accepted.

¶ 37. Why does the law conclude that the breach of a fiduciary duty of loyalty is an intentional tort? It does so because the fiduciary consciously agreed to be committed to the interests of those to whom the fiduciary assumed that special role. For example, this commitment overlays all of the tasks that a trustee agrees to undertake in a given trust agreement. Whether a breach of the fiduciary duty of loyalty will lie against a trustee will depend upon what facts are proved. As explained above, there are a number of ways in which this breach can occur, e.g., self-dealing by the trustee; failing to disclose material information to the beneficiary; disclosing the beneficiary's confidential information.

¶ 38. Our conclusion that a breach of the fiduciary duty of loyalty is grounded in an intentional tort is consistent with all Wisconsin appellate decisions that have mentioned the issue. Most recently, in Beloit Liquidating, 270 Wis. 2d 356, ¶ 40, we held that Wis. Stat. § 893.57 applies to breach of fiduciary duty claims, although we did not discuss in detail our reasoning for that holding. We did have before us the assertion that the trustee acted negligently, and we rejected that contention. Id., ¶¶ 10, 33. Previously, in Warmka, 136 Wis. 2d at 35, we held that "[t]he breach of the fiduciary duty is an intentional tort" and that § 893.57 provides the applicable statute of limitations. In Warmka, we reviewed an insured's cause of action against an insurer for breach of contract and bad faith, and also addressed the question of which statute of limitations was applicable to the claims. We concluded that the insurer had a duty that was analogous to a fiduciary duty owed to the insured and that a breach of fiduciary duty is an intentional tort, governed by § 893.57. Therefore, we held that it was the applicable statute of limitations for the claim presented.

¶ 39. Twice, federal courts have followed these cases in applying the two-year statute of limitations to breach of fiduciary duty claims. See McMahon v. Pa. Life Ins. Co., 891 F.2d 1251, 1255 (7th Cir. 1989) (affirming the district court's dismissal of the breach of fiduciary duty claim based on our decision in Warmka); see also Lewis v. Paul Revere Life Ins. Co., 80 F. Supp. 2d 978, 1004 (E.D. Wis. 2000) (concluding that insurer's breach of fiduciary duty claim against broker who sold policy, but did not fully disclose all facts relevant to the proposed insured, was time barred under Warmka).

¶ 40. Our conclusion that a breach of the fiduciary duty of loyalty is an intentional tort is also consistent with the decisions of courts in many other jurisdictions. For example, in Brosted v. Unum Life Insurance Co. of America, 421 F.3d 459 (7th Cir. 2005), where the plaintiffs claim was based on a miscalculation and overstatement of benefits, the court held no claim for breach of fiduciary duty existed because there was no evidence that the misrepresentation was intentional. Id. at 466. It would have taken an intentional misrepresentation to breach the fiduciary's duty of loyalty. Id. In Crabtree v. Metalworks & Hydra-Assembly, Inc., 2003 WL 42442 (Ohio App. 10th Dist.), where minority shareholders claimed a breach of fiduciary duty based on the failure to provide necessary information, the court classified the breach of fiduciary duty "just like other intentional torts." Crabtree, 2003 WL 42442 at 2 (citing Schafer v. RMS Realty, 741 N.E.2d 155 (Ohio Ct. App. 2000). In Lundstrom Realty Advisors, Inc. v. Schickedanz Bros.-Riviera Ltd., 856 So. 2d 1117 (Fla. Dist. Ct. App. 2003), the court concluded that plaintiff had four years in which to bring its claim for breach of fiduciary duty under the applicable Florida statute of limitations for intentional torts. Id. at 1123. In Posner v. Essex Insurance Co., 178 F.3d 1209 (11th Cir. 1999), the court applied Florida law and noted that a breach of fiduciary duty claim is an intentional tort in Florida. Id. at 1219.

D. Plaintiffs' Claims

¶ 41. The fiduciary relationship between the plaintiffs and the Trustees was created by contract, the JESTA; accordingly, the tasks that the Trustees agreed to undertake are as set out in the JESTA. However, the state of mind that the Trustees were required to employ as they undertook their contractually agreed upon tasks is one of absolute loyalty to the beneficiaries of the Trust, which includes the plaintiffs. Their duty of loyalty required the Trustees to make a full disclosure to the Perry employees, as a group, of all material facts that related to the consequences of retirement before the sale of Perry. One of those facts was that if the plaintiffs who were eligible for retirement retired before the Perry sale closed, they would be eligible for a ten-year sell-back opportunity for their Trust-units. Because the Trust-units have always appreciated in value, the plaintiffs needed to know that they could retain the Trust-units over a longer period of time so they could decide if they wished to retire in order to have this opportunity. Any employee who retired would be required to apply for employment with the buyer of Perry's assets, rather than having employment by the new owner immediately available on the same terms and conditions as the employee had at Perry.

¶ 42. The circuit court found that the Trustees breached their fiduciary duty by telling the plaintiffs "they had to sell-back their Trust units over a 1 to 5 year period, and no information was provided plaintiffs in writing about the availability of the 10-year sell-back right upon retirement." Mem. Decision, at 15. These found facts prove that the Trustees created circumstances that adversely affected the plaintiffs' ability to make an informed decision about whether to retire and then apply for work with the new owner or whether to proceed immediately to employment with the new owner. This constitutes a breach of the Trustees' duty of loyalty, which the Trustees voluntarily undertook when they agreed to be Trustees of the Trust. As such, the breach of fiduciary duty of loyalty, which the plaintiffs proved, is an intentional tort that is precluded by the two-year statute of limitations set out in Wis. Stat. § 893.57.

III. CONCLUSION

¶ 43. We conclude that the circuit court found that the Trustees created circumstances that adversely affected the plaintiffs' interests by giving plaintiffs incomplete information relative to plaintiffs' holdings, which we conclude is a breach of the fiduciary duty of loyalty, an intentional tort. As a result, the two-year statute of limitations found in Wis. Stat. § 893.57, which is applicable to intentional torts, requires dismissal of the lawsuit. Accordingly, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 44. {concurring). I write separately (1) to set forth the issue presented and my answer thereto; and (2) to provide context for the case regarding claims of a trustee's breach of fiduciary duty and claims of negligence.

I

¶ 45. The majority opinion begins by stating the issue of law presented in the instant case as "whether a claim for breach of fiduciary duty of loyalty must be intentional, or whether it can also be based on negligence."

¶ 46. The plaintiffs present the issue as follows: whether a claim for a negligent breach of fiduciary duty is governed by the two-year statute of limitations in Wis. Stat. § 893.57, or by the six-year statute of limitations in either Wis. Stat. § 893.52 or § 893.43. The defendants and the amicus briefs accept and respond to the issue as stated by the plaintiffs.

¶ 47. I agree with the issue as stated by the parties. The present case does not require this court to determine whether a claim for the Trustees' breach of fiduciary duty of loyalty must be intentional or may be based on negligence. We need determine only what statute of limitations applies to the claim for breach of fiduciary duty presented in the instant case.

¶ 48. The circuit court determined that the Trustees breached their fiduciary duty and applied the six-year negligence statute of limitations. The circuit court reasoned as follows: The Trustees had a fiduciary duty of loyalty. Ordinarily self-dealing is a violation of the fiduciary duty of loyalty. The trust instrument allowed the Trustees as employees of Journal Communications to buy the plaintiffs' stock, which might be considered self-dealing. The circuit court concluded that, as a result, the Trustees were under a heightened duty to disclose information to the plaintiffs in order to fulfill the Trustees' fiduciary duty of loyalty. The Trustees did not inform the employees fully and correctly as required by their heightened duty to disclose. The Trustees' failure to inform the plaintiffs correctly was not intentional, just negligent, and, accordingly, ruled the circuit court, the six-year negligence statute of limitations applied.

¶ 49. In contrast, the majority opinion concludes that the two-year statute of limitations for intentional torts, Wis. Stat. § 893.57, applies to claims for breach of fiduciary duty based on breach of the fiduciary duty of loyalty.

¶ 50. Beloit Liquidating Trust v. Grade, 2004 WI 39, 270 Wis. 2d 356, 677 N.W.2d 298, appears to control the outcome of the instant case. See also Warmka v. Hartland Cicero Mut. Ins. Co., 136 Wis. 2d 31, 34-35, 400 N.W.2d 923 (1987) (cause of action for insurer's bad faith; insurer's duty to insured analogized to fiduciary duty; breach of fiduciary duty is intentional tort under statute of limitations). In Beloit Liquidating, this court considered allegations that corporate officers and directors negligently allowed the corporation to enter into money-losing contracts, failed to keep adequate accounting systems, continued operations after prudent managers would have shut down the corporation, and failed to disclose corporate losses. These allegations fit within several fiduciary duties of officers and directors of corporations, including the duty to keep and render accounts and the duty to furnish information. It does not appear that the plaintiffs in Beloit Liquidating alleged breach of the fiduciary duty of loyalty. This court held in Beloit Liquidating, despite the fact that the claim was that the officers and directors were negligent in performing fiduciary duties, that "a breach of fiduciary duty claim involves an intentional tort." The court therefore held that the two-year statute of limitations for intentional torts, Wis. Stat. § 893.57, barred the claims in that case.

¶ 51. As the court of appeals observed in the instant case, this court in Beloit Liquidating "described the breach of fiduciary duty claim as an intentional tort even though the conduct alleged in that case was negligently allowing certain contracts and failing to keep adequate accounts, act prudently and disclose losses, rather than the type of bad faith conduct or intentionally wrongful conduct the circuit court here considered essential to the application of § 893.57." Thus the court of appeals simply concluded that Beloit Liquidating controlled the outcome of the instant case.

¶ 52. Beloit Liquidating involved numerous issues that this court discussed at length. This court did not discuss how it reached its conclusion regarding the application of the two-year statute of limitations and cited no authority for its conclusion that breach of fiduciary duty is an intentional tort or that the two-year statute of limitations applied in that case.

¶ 53. The plaintiffs in the instant case distinguish Beloit Liquidating, asserting that it did not involve claims of negligent breach of fiduciary duties because the statutes and the business judgment rule prevented action for negligent breach. The plaintiffs assert that Beloit Liquidating simply found that the corporate officers and directors owed no duty to the creditors.

¶ 54. In the interest of stare decisis and relying on the text of Beloit Liquidating, I conclude that Beloit Liquidating controls the outcome of the instant case and creates a uniform, predictable rule that the statute of limitations applicable in all claims of any breach of fiduciary duty is the two-year statute. This conclusion should end the majority opinion in the instant case.

II

¶ 55. The majority opinion in this case, however, does not stop at deciding the statute of limitations issue in the instant case based on Beloit Liquidating. It has raised more complex issues than the application of the statute of limitations to all claims asserting a breach of fiduciary duty by a trustee of an express trust. Instead of explaining settled law, it appears that the majority opinion can he interpreted as making new law regarding the nature and content of fiduciary duty and the duty of care.

¶ 56. In some places, the majority opinion puts forth a novel view of fiduciary duty that the only fiduciary duty is a duty of loyalty. The majority opinion might be interpreted as herding some or all fiduciary duties into the pasture of the duty of loyalty.

¶ 57. The majority opinion concludes, for example, that the duty of confidentiality and the duty to furnish information are aspects of the duty of loyalty. Yet the authority cited by the majority opinion does not support this statement. On the contrary, the cited law review article makes clear that the duty of loyalty is one of the fiduciary duties, but that there are other duties as well.

¶ 58. I am concerned whether the majority opinion is creating a new body of fiduciary law for trustees that is inconsistent with prior case law in this state and inconsistent with the view taken in the Restatement (Second) of Trusts and well-known treatises on the law of trusts.

¶ 59. While broad in scope, a trustee's fiduciary duty of loyalty does not, in ordinary trust parlance, encompass every fiduciary duty. It is hornbook, black-letter law that a trustee has many fiduciary duties, one of which is the duty of loyalty. While a trustee's duty of loyalty may be described as "the most fundamental duty," it is not the only one.

¶ 60. Restatement (Second) of Trusts § 170 describes the duty of loyalty as the duty to administer the trust solely in the interest of the beneficiary:

(1) The trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary.
(2) The trustee in dealing with the beneficiary on the trustee's own account is under a duty to the beneficiary to deal fairly with him and to communicate to him all material facts in connection with the transaction which the trustee knows or should know.

¶ 61. The treatises and texts state that the fiduciary duties of a trustee include not only the duty of loyalty but also the duty to administer the trust, the duty to keep and render accounts, and the duty to furnish information. For example, a trustee might breach the duty to furnish information by accidentally providing incorrect or inaccurate information about the content of the trust corpus or the beneficiary's rights under the trust.

¶ 62. Another fiduciary duty of a trustee to the beneficiary is the duty to exercise care and skill in administering the trust. The trustee's fiduciary duty to the beneficiary to administer the trust with care and skill is described in the Restatement (Second) of Trusts:

The trustee is under a duty to the beneficiary in administering the trust to exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property; and if the trustee has or procures his appointment as trustee by representing that he has greater skill than that of a man of ordinary prudence, he is under a duty to exercise such skill.

¶ 63. According to the treatises, a trustee's breach of a fiduciary duty can be intentional or negligent, and in certain circumstances there may be liability without fault.

¶ 64. As I have said, the majority opinion might be read to fit some or all the trustee's fiduciary duties within the fiduciary duty of loyalty. However, the majority opinion might also be read to say that the other duties normally thought of as a trustee's fiduciary duties are not fiduciary duties at all, hut are duties owed by many persons, such as the duty of ordinary care, and are not analyzed as breach of fiduciary duty. Thus, the majority opinion addresses the relationship between a trustee's fiduciary duties and the non-fiduciary duty of ordinary care.

¶ 65. If this latter view is an accurate characterization of the majority opinion, it is making very broad statements about the nature and content of fiduciary duties.

¶ 66. The majority opinion relies on commentators and cases addressing the relationship between fiduciary duties and the non-fiduciary duty of care in the context of fiduciaries other than trustees. It appears that this literature is primarily in the context of the duties owed by an attorney to a client or the duty other agents owe to principals, such the duty of corporate officers and directors to shareholders. The literature cited by the majority opinion criticizes cases confusing an attorney's fiduciary duties to a client and an attorney's duty of due care in performance of services. According to the commentators, the latter is the basis for a malpractice negligence action, not an action for breach of fiduciary duty. The commentators suggest that these two types of breach of duty should be analyzed separately because of differences regarding proof of causation, proof of damages, and applicable statutes of limitations.

¶ 67. At first blush, it appears that in Hatleberg v. Norwest Bank of Wisconsin, 2005 WI 109, 283 Wis. 2d 234, 700 N.W.2d 15, this court created confusion regarding the relationship between a fiduciary duty and a non-fiduciary duty of ordinary care. In Hatleberg this court addressed claims relating to an irrevocable trust that did not include certain provisions necessary to avoid tax liability upon the settlor's death. The bank that was trustee was aware of the defect but did not reveal it to the settlor. The settlor's estate sued the bank trustee for erroneously informing the settlor, after creation of the trust, that she would avoid tax liability by annually depositing additional funds in the trust.

¶ 68. This court held that the bank could be held liable for providing the incorrect information. The court concluded that the bank held itself out as an expert in financial planning and was liable for negligent performance of professional services when it provided false information.

¶ 69. The court of appeals in the instant case points out that Hatleberg might be read to imply that a claim for negligence is indistinguishable from a claim for breach of fiduciary duty.

¶ 70. However, the court of appeals also suggests a more appropriate reading of Hatleberg. In Hatleberg, this court addressed the negligence theories presented by the plaintiff and did not intend to opine on the relationship between a claim for the breach of a fiduciary duty and a claim for negligent performance of professional services, a relationship that was not an issue in the case before the court See the court of appeals decision, discussing the distinction between a fiduciary duty claim and a negligence claim.

¶ 71. As I read Hatleberg, this court noted three distinct duties under which the bank might be liable to the settlor's estate, clearly distinguishing between breach of fiduciary duties and the breach of the duty of ordinary care. Hatleberg, then, can be explained by recognizing that the bank, in dealing with the settlor after the trust was established, owed her no fiduciary duty as a trustee of the trust. Although the bank was held to a professional standard of care, it was held to that standard because it held itself out to the settlor as an expert financial advisor, not because of a fiduciary relationship as trustee with the settlor.

¶ 72. Thus, at least with respect to the law of trusts, it appears to me that the case law in this state has not confused a fiduciary duty of the trustee and the non-fiduciary duty of ordinary care. Indeed, in Hatleberg, when the duty of care was not the trustee's fiduciary duty of care, the court recognized this distinction and analyzed the claim as a negligence claim.

¶ 73. The principles of fiduciary duty apply with different force in different contexts involving different persons and relationships. None of the sources I have found, and none of the sources cited by the majority opinion, addresses the duties of a trustee. As Professor Deborah A. DeMott explains, the law of fiduciary duty is "situation-specific." Litigants and courts should therefore take care in identifying the fiduciary and the fiduciary duty at issue in each case because different fiduciaries may have different duties, including the duty of care.

¶ 74. In sum, I conclude that, as dictated by our precedent in Beloit Liquidating, the two-year statute of limitations for intentional torts, Wis. Stat. § 893.57, applies to claims for breach of fiduciary duty. That analysis is sufficient to decide the instant case. I would go no further.

¶ 75. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion and Justice N. PATRICK CROOKS joins Part I of this opinion.

       The Honorable John M. Ullsvik, Circuit Court Judge for Jefferson County, presided prior to the appeal.

       All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The procedural narrative recited herein is a summary of the actions in circuit court. It is not meant to repeat each procedural step that eventually led to the trial of only the claim of breach of fiduciary duty.

       The court awarded damages to the three employees who it determined did not know about the ten-year sell-back opportunity for retirees and would have retired and then applied for employment with the new company if they had known. By stipulation, damages were awarded to a fourth employee. The circuit court also awarded attorney's fees.

       The JESTA has a liability limitation clause, Clause 33, which precludes negligence claims against the Trustees.

       Plaintiffs also suggest in their brief that Wis. Stat. § 893.43 could apply to their claims, as contract claims, thereby providing a six-year statute of limitations. Section § 893.43 reads, in pertinent part:
      An action upon any contract, obligation or liability, express or implied, including an action to recover fees for professional services ... shall be commenced within 6 years after the cause of action accrues or be barred.
      However, we note that the circuit court dismissed the breach of contract claims, and that decision has not been brought before us.

       In support of their position, plaintiffs cite an extensive list of Wisconsin cases in which they contend the courts applied a six-year statute of limitations to a breach of duty on the part of a trustee. However, the cases cited are not on point. See Younger v. Rosenow Paper & Supply Co., 51 Wis. 2d 619, 626, 188 N.W.2d 507 (1971) (analyzing breach of contract claim); Hammes v. First Nat'l Bank & Trust Co. of Racine, 79 Wis. 2d 355, 359, 255 N.W.2d 555 (1977) (concluding that summary judgment was improperly granted on negligence and breach of fiduciary duty claims, but making no determination of any statute of limitations issue); Policemen's Annuity & Benefit Fund of Milwaukee v. City of Milwaukee, 2001 WI App 144, ¶ 13, 246 Wis. 2d 196, 630 N.W.2d 236 (concluding the six-year statute of limitations in Wis. Stat. § 893.43 was erroneously applied and that the city is estopped from raising the statute of limitations); Welter v. City of Milwaukee, 214 Wis. 2d 485, 488-89, 571 N.W.2d 459 (Ct. App. 1997) (analyzing a municipal ordinance where no breach of fiduciary duty was alleged); Schroeder v. Gateway Transp. Co., 53 Wis. 2d 59, 67, 191 N.W.2d 860 (1971) (relying on Younger to conclude that the statute of limitations for an action upon any other contract applies to an action on a pension plan); Green v. Granville Lumber & Fuel Co., 60 Wis. 2d 584, 590, 211 N.W.2d 467 (1973) (concluding that "six-year statute of limitations . .. for actions on contract, governs"); Jensen v. Janesville Sand & Gravel Co., 141 Wis. 2d 521, 527-28, 415 N.W.2d 559 (Ct. App. 1987) (holding that § 893.43 applies to a contract action against employer for past due pension payments); Atkinson v. Everbrite, Inc., 224 Wis. 2d 724, 726, 733, 592 N.W.2d 299 (Ct. App. 1999) (concluding that widow had only contract claims against her deceased husband's former employer); Noonan v. Nw. Mut. Life Ins. Co., 2004 WI App 154, ¶¶ 31-32, 276 Wis. 2d 33, 687 N.W.2d 254 (applying § 893.43 to breach of contracts claims).

       The concurrence takes issue with the assertion that the fiduciary duty of loyalty is broader than requiring that the fiduciary not act in his own self-interest. Concurrence, ¶ 57. We stand by the statement. Recently, the court of appeals examined an alleged disclosure of confidential information as a claimed breach of the duty of loyalty. Aon Risk Servs., Inc. v. Liebenstein, 2006 WI App 4, ¶ 31, 289 Wis. 2d 127, 710 N.W.2d 175. The Restatement (Second) of Agency § 395 (1958) includes within the duty of loyalty the duty not to disclose confidential information that was given to the fiduciary by his principal:
      [ A]n agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency....

       The circuit court also found that the Trustees had not put aside the discretion of one who is not a fiduciary to act in his own self-interest, that one who is a fiduciary must put aside, because the Trustees were eligible to purchase some of the Trust-units that the plaintiffs were forced to sell back. However, the circuit court made no finding that any Trustee had done so. Therefore,, there were no findings that the Trustees had actually breached their fiduciary duty by self-dealing.

       The plaintiffs before us argued that the discovery rule, explained in John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, ¶ 24, 284 Wis. 2d 307, 700 N.W.2d 180, should apply to the accrual of their claims of negligence. Plaintiffs assert that their claims accrued when the last Trust-unit was sold, rather than on the date that the incomplete information was given to them, as the defendants assert. We do not address this issue because we conclude that the breach of the duty of loyalty that the trial court found is controlled by the two-year statute of limitations of Wis. Stat. § 893.57. The plaintiffs commenced this action April 7, 2000, and they sold their last Trust-unit before April 6, 1998. Therefore, plaintiffs do not contend that if the two-year statute of limitations applies, their claims survive.

       Majority op., ¶ 1. Compare with a different statement of the issue at majority op., ¶ 23: "whether the breach of fiduciary duty claims the circuit court found the plaintiffs proved were properly dismissed because the two-year statute of limitations applies to them."

       The majority opinion further misstates the issue by limiting its holding to the "fiduciary duty of loyalty." As I discuss in Part II of this opinion, this case is not only a fiduciary duty of loyalty case. Rather, the plaintiffs allege breaches of other fiduciary duties.

       The majority opinion also states that because the plaintiffs' claims for breach of fiduciary duty "are focused solely on the actions and omissions of the Trustees ... we need analyze only the action of the Trustees in order to decide the questions presented by this review." Majority op., ¶ 21. The complaint in the instant case, however, also alleges breach of fiduciary duty by Journal Communications and the trust itself. The majority opinion is silent.

        See Zastrow v. Journal Commc'ns, Inc., 2005 WI App 178, ¶ 2, 286 Wis. 2d 416, 703 N.W.2d 673.

        Beloit Liquidating Trust v. Grade, 2004 WI 39, ¶ 10, 270 Wis. 2d 356, 677 N.W.2d 298.

        Beloit Liquidating, 270 Wis. 2d 356, ¶ 40.

        Id., ¶ 40; see also Warmka v. Hartland Cicero Mut. Ins. Co., 136 Wis. 2d 31, 34-35, 400 N.W.2d 923 (1987).

        Zastrow, 286 Wis. 2d 416, ¶ 14.

        See majority op., ¶¶ 22-35, 41-42.

       Majority op., ¶ 29 ("[T]he duty of loyalty is broader than simply requiring the fiduciary to refrain from acting in his own self-interest. For example, it also may require keeping a beneficiary's information confidential and fully disclosing to the beneficiary all information relevant to the beneficiary's interest." (Citations omitted.)).

        See William A. Gregory, The Fiduciary Duty of Care: A Perversion of Words, 38 Akron L. Rev. 181, 183 (citing Restatement (Second) of Agency §§ 379-384, 387-398 (1958)) ("An agent owes various duties to its principal. The duty of loyalty is the most significant of them. The courts have expanded the duties of an agent over the years by describing a duty to disclose and a duty of candor." (Footnote references omitted.)).

        See, e.g., Hammes v. First Nat'l Bank & Trust Co. of Racine, 79 Wis. 2d 355, 369, 255 N.W.2d 555 (1977) (discussing fiduciary duty of loyalty, and then discussing separate fiduciary duty of full disclosure); Modern Materials, Inc. v. Advanced Tooling Specialists, Inc., 206 Wis. 2d 435, 442, 557 N.W.2d 835 (Ct. App. 1996) (citing Racine v. Weisflog, 165 Wis. 2d 184, 190, 477 N.W.2d 326 (Ct. App. 1991)) ("It is well established that a corporate officer or director is under a fiduciary duty of loyalty, good faith and fair dealing in the conduct of corporate business.").

       2A Austin Wakeman Scott & William Franklin Fratcher, Scott on Trusts §§ 169-185 (4th ed. 1987) (listing 17 distinct fiduciary duties of a trustee); Restatement (Second) of Trusts §§ 169-186 (1959) (fisting 17 distinct fiduciary duties of a trustee).

        The duties listed in the Restatement and Scott on Trusts are substantially the same. Both clearly include the duty of loyalty as a fiduciary duty distinct from the other fiduciary duties listed.

       2A Scott & Fratcher, supra note 13, § 170; George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 543 at 217 (rey. 2d ed. replacement vol. 1993).

       Similarly, Scott on Trusts defines the fiduciary duty of loyalty as "the duty of a trustee to administer the trust solely in the interest of the beneficiaries. [A trustee] is not permitted to place himself in a position where it would be for his own benefit to violate his duty to the beneficiaries." 2A Scott & Fratcher, supra note 13, § 170. For another discussion of the duty of loyalty, see Bogert & Bogert, supra note 14, §§ 543-543(V).

       2A Scott & Fratcher, supra note 13, § 169; Restatement (Second) of Trusts § 169 (1959).

        Richards v. Barry, 39 Wis. 2d 437, 441-42, 159 N.W.2d 660 (1968) (duty to keep accounts); Leonard v. Ingram, 202 Wis. 117, 124-26, 230 N.W. 715 (1930) (same); 2A Scott & Fratcher, supra note 13, § 172; Restatement (Second) of Trusts § 172 (1959).

       2A Scott & Fratcher, supra note 13, § 173 ("The trustee is under a duty to the beneficiaries to give them on their request at reasonable times complete and accurate information as to the administration of the trust."); Restatement (Second) of Trusts § 173 (1959).
      For another example of stating the trustee's duties, see Bogert & Bogert, supra note 14, §§ 541 (exercise reasonable care and skill), 582 (protect and preserve trust assets), 596 (earmark and separate trust property), 611 (make trust property productive), 975 (furnish information to beneficiary).

       Restatement (Second) of Trusts § 174 (1959); see also 3 Scott & Fratcher, supra note 13, § 174; Sensenbrenner v.

        Sensenbrenner, 76 Wis. 2d 625, 635, 252 N.W.2d 47 (1977) (trustees have duty to employ "diligence, prudence, and absolute fidelity").

       3 Scott & Fratcher, supra note 13, § 201 (breach of trust ordinarily by intentional or negligent conduct, but there may also be liability without fault); Restatement (Second) of Trusts § 201 (1959) (same).
      For example, where a trustee under a mistake of law makes payment to a person not entitled as beneficiary, he is liable to the beneficiary, even though his conduct was neither intentional nor negligent. Galard v. Winans, 74 A. 626 (Md. 1909).

        See, e.g., Gregory, supra note 11; Ray Ryden Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer on the Legal Malpractice Puzzle, 47 S.M.U. L. Rev. 235 (1994) (also comparing contract actions); Smith v. Mehaffy, 30 P.3d 727 (Col. Ct. App. 2000); Bristol & West Bldg. Soc'y v. Mothew, [1998] Ch. 1, at 17, 1996 WL 1092374 (British Court of Appeal).

        Hatleberg v. Norwest Bank of Wis., 2005 WI 109, ¶¶ 6-12, 283 Wis. 2d 234, 700 N.W.2d 15.

        Id., ¶¶ 34-39,42. The court also concluded that the bank committed negligent misrepresentation. Id., ¶¶ 40-41.

        Zastrow, 286 Wis. 2d 416, ¶ 22.

        Id., ¶ 23.

        Id., ¶¶ 23-24, 26.

        See Hatleberg, 283 Wis. 2d 234, ¶ 18 ("We have organized our analysis into three categories: (1) Duties arising in [the defendant's] undisputed capacity as trustee; (2) Duties arising in [the defendant's] disputed capacity as financial planner or advisor; and (3) Duty to avoid negligently providing inaccurate information.").

       Restatement (Second) of Trusts § 174 (1959) (trustee's duty of care owed to beneficiary).

        Hatleberg, 283 Wis. 2d 234, ¶¶ 38-39; see Zastrow, 286 Wis. 2d 416, ¶¶ 24-26.
      In Hatleberg, 283 Wis. 2d 234, ¶ 32, the court noted that fiduciary duties may arise from the relationship between a financial advisor and a client. However, the court concluded that it need not address the existence of such duties because it found that the bank had violated the ordinary duty of care and could be held liable for negligence. The conclusion that the court did not need to address the fiduciary duty claim may be part of the cause for confusion surrounding the Hatleberg case.

        See Deborah A. DeMott, Beyond Metaphor: An Analysis of Fiduciary Obligation, 1988 Duke L.J. 879, 879 (1988).


author: WEDEMEYER, EJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Walter T. Missouri, Defendant-Appellant.
    Court of Appeals

      No. 2005AP1486-CR.

      Submitted on briefs January 31, 2006.

      Decided March 14, 2006.

    2006 WI App 74
    (Also reported in 714 N.W.2d 595.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Jeffrey W) Jensen of Law Offices of Jeffrey W. Jensen, Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general and David J. Becker, assistant attorney general.
    Before Wedemeyer, EJ., Fine and Kessler, JJ.
   WEDEMEYER, EJ.

¶ 1. Walter T. Missouri appeals from a judgment entered after a jury found him guilty of one count of possession of cocaine with intent to deliver and one count of resisting arrest. Missouri also appeals from an order denying his postconviction motion seeking a new trial based on newly discovered evidence. Missouri claims: (1) the trial court erroneously exercised its discretion when it denied his request to admit "other acts" evidence; and (2) the trial court erroneously exercised its discretion when it denied his postconviction motion. Because we conclude that the trial court erroneously exercised its discretion in both respects, we reverse and remand for a new trial.

BACKGROUND

¶ 2. On January 7, 2004, Milwaukee Folice Officer Jason Mucha, together with fellow officer Faul Lough, went to a residence at 2013 North 36th Street to conduct a drug investigation. They observed a male exit the rear of the residence and run toward a white four-door sedan. Officers Brad Westergard and Mucha began searching the area for the vehicle in an unmarked squad. At 6:20 p.m. they noticed a white four-door Chevy Lumina parked and running in front of 2162 North 41st Street. Missouri was seated in the front passenger seat.

¶ 3. What happened next was disputed at trial. Missouri's version of events was that his girlfriend had parked the car in front of her friend's home and had just run inside to return a video. He then noticed the police approaching the car with their weapons drawn. He heard them say: "Don't you fing move or I'll shoot you in the fing face." Missouri stated he was then struck with a hard object in the back of the head. He leaned over and began honking the horn so that there would be witnesses. He stated that Mucha then put his pistol to Missouri's neck and said: "Let go of the wheel or I'll blow your brains through the roof." Missouri testified that he was then violently pulled from the vehicle, beaten by the police, and that while he was on the ground, they put the baggie of cocaine in his mouth.

¶ 4. Mucha offered a different account of what happened. He testified that as they approached the white vehicle, the man (later identified as Missouri) in the passenger seat ducked down under the seat. When Mucha attempted to remove Missouri from the car, Missouri moved his hands to his mouth, leaned toward the steering wheel and started honking the horn. Mucha then pulled Missouri by his feet and got him out of the car. Mucha testified that because Missouri was resisting arrest, Mucha delivered two "knee strikes" which caused Missouri to drop to the ground. Mucha then jumped on top of Missouri, and eventually sprayed him in the face with pepper spray. Thereafter, the police indicated they discovered a baggie of cocaine bindles in Missouri's mouth.

¶ 5. As a result of the incident, Missouri was charged with possession with intent to deliver and resisting an officer. Missouri pled not guilty and the case was set for a jury trial. Missouri filed a variety of pretrial motions, including a motion for a preliminary ruling as to the admissibility of testimony from Booker Scull. Scull would offer testimony that he had been mistreated by Officer Mucha on two prior occasions. Scull's affidavit averred that on June 27, 2003, while in his home located at 2021 North 29th Street, he heard gunshots coming from Alex's Tap on 30th and Brown Streets. Scull went out onto his porch to locate his son, who he observed on the corner of 29th and Brown Streets talking to his girlfriend. Scull then told his son to go into the house so that when police came to investigate the shooting, he would not become a suspect. Scull's son and girlfriend walked into the residence as Officer Mucha arrived on the scene.

¶ 6. Mucha approached Scull and asked why his son went into the house. Scull asked Mucha what business he had at Scull's house. Mucha said: "I can come over here any time I want, nigger." Mucha then told Scull to "come here" and Scull refused to get off his porch. Mucha said: "I'll come up and arrest your ass." Scull then said he would call internal affairs. Mucha came onto the porch and grabbed Scull's arm. Scull jerked his arm away from Mucha. Mucha then grabbed Scull, hit him in the back of his head with a hard object and Scull was thrown to the ground by other officers, who had come to assist Mucha. Mucha then kicked Scull in the mouth, breaking two of his teeth. Scull was then charged with trying to disarm a police officer.

¶ 7. On December 27, 2003, Mucha was questioning Scull's son near his house. His son ran away, but his fiancé, Lillian Brooks, was standing nearby. Mucha slammed Brooks to the ground. Scull went to get his camera and walked up to take a picture of Mucha, who had his knee on Brooks. Mucha drew his gun and pointed it at Scull. Scull put his hands in the air and Mucha put his gun away. Scull then took a picture of Mucha, who still had his knee on Brooks. Scull then began walking back toward his house.

¶ 8. Mucha chased Scull and then forced him to lie down in the street. Mucha hit Scull's right arm with his nightstick, kicked the camera out of his hands and handcuffed him. Mucha then whispered into Scull's ear: "I should have kicked all your teeth out." Mucha took Scull's camera and then arrested him for aiding in the escape of his son.

¶ 9. The trial court ruled that Scull's testimony would not be admissible. The trial court applied the three-part State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), test to determine whether Scull's "other-acts" testimony should be admitted. The trial court found that the evidence satisfied the first and second prongs of the Sullivan test, but not the third. The trial court ruled:

This is a situation in which the defendant is trying to put before the jury evidence in which it appears that Mr. Scull's behavior is inconsistent with what he would be saying in that I am informed that the defendant — I'm sorry, I am informed that Mr. Scull has pleaded guilty to one of the incidents and would have to assert the Fifth as to the other evidence. So it is highly problematic to make a determination that this is relevant.
The state would then be forced to call an Assistant District Attorney to describe the plea that Mr. Scull entered in connection with the one incident, and of course there would be all kinds of questions raised in the trier of facts' mind with respect to the assertion of the Fifth Amendment with respect to [the] second incident.
... I have to decide... whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. And certainly that is the case here. For me to permit evidence of Officer Mucha's behavior with respect to Mr. Scull, before — to put that before this jury would mislead the jury and confuse the issues and be unfair to the state.
If I were to permit the defense to go in this way, then all of that would — all that that would do is inspire people to make claims of beatings by the police. That is inflammatory, and without anything to really back this up other than this allegation, I have no choice but to deny the request for the admission of this evidence. Mr. Scull will not be permitted to testify.

¶ 10. The case proceeded to trial and the jury found Missouri guilty of both offenses. Judgment was entered. He filed a postconviction motion, seeking a new trial based on newly discovered evidence. He submitted evidence from four other unrelated individuals who attested to similar encounters with Officer Mucha. Those four individuals and a summary of their incidents include: (1) Ricky Green, who was stopped by Officers Mucha, Westergard and Awadallah, asserts that the officers hit him in the stomach and then claimed that Green had thrown down some cocaine; (2) Sylvester Hamilton claims he was arrested by Officers Mucha and Dineen and severely beaten; (3) James Murry asserts that he was arrested by Mucha allegedly on a false charge of possession of cocaine with intent to deliver; and (4) Lemar Barnes asserts that he was arrested by Mucha and several other officers, who claimed to have found a bindle of cocaine on the ground where Barnes was standing. He states that he was physically abused by the officers.

¶ 11. The trial court ruled that this newly submitted evidence satisfied the first four factors of the five-factor test for newly discovered evidence. See State v. Coogan, 154 Wis. 2d 387, 394-95, 453 N.W.2d 186 (Ct. App. 1990). The trial court ruled, however, that the fifth factor — that there exists a reasonable probability of a different result at a new trial — was not satisfied. The trial court reasoned that there was no possibility of a different result at a new trial because none of these four incidents would be admitted into evidence. Similar to the Scull ruling, the trial court concluded that these four "other-acts" incidents would not satisfy the third prong of the Sullivan test. As a result, the trial court entered an order denying Missouri's postconviction motion. Missouri now appeals.

DISCUSSION

¶ 12. Both issues in this case involve whether the trial court erroneously exercised its discretion by concluding that the evidence would not be admissible. In reviewing evidentiary issues, our review is whether the trial court applied the correct law to the pertinent facts and reached a reasonable conclusion. See State v. Smith, 2002 WI App 118, ¶¶ 7-8, 254 Wis. 2d 654, 648 N.W.2d 15. We conclude that the trial court did not apply the correct law and therefore did not reach a reasonable conclusion. Thus, we reverse the judgment and order and remand for a new trial.

A. Scull's Testimony.

¶ 13. The first question involves the trial court's ruling on the Scull testimony. The trial court ruled that Scull's testimony was inadmissible based on the third Sullivan factor — that the probative value of the testimony was substantially outweighed by undue prejudice. See Sullivan, 216 Wis. 2d at 773; Wis. Stat. § 904.03 (2003-04). We disagree.

¶ 14. Wisconsin Stat. § 904.04(1) provides that character evidence "is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except: ... (c) Character of witness. Evidence of the character of a witness, as provided in ss. 906.07, 906.08 and 906.09." The evidence at issue here addresses the character of a witness, Officer Mucha, and specifically, whether he is being truthful or untruthful in denying physical abuse and planting evidence. Based on § 904.04, Scull's testimony could not be admitted for the purpose of showing that because Mucha mistreated Scull, he also must have mistreated Missouri. However, § 904.04 does allow character evidence to be admitted for other purposes.

¶ 15. Specifically, "other-acts" character evidence can be admitted to show "proof of motive ... intent... or absence of mistake or accident." Wis. Stat. § 904.04(2). It can also be admitted to show the bias or prejudice of a witness. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978). Here, the defense wanted to introduce Scull's testimony to show that Mucha had a motive to lie and cover up what he had done, and that this was intentional, not the result of mistake or accident. The Scull evidence would also be used to show that Mucha intended to frame Missouri for a crime, which occurred because Mucha's prejudice toward black people causes him to commit physical assaults and use excessive force. We conclude that the Scull evidence satisfied the "other purpose" prong of the Sullivan test.

¶ 16. We also conclude that the Scull evidence was relevant to a consequential fact. Here, the Scull testimony is very similar in substance and time to what occurred in the instant case. The Scull testimony would be very relevant in questioning Mucha's credibility and truthfulness. It would be relevant to show that Mucha had a motive to lie about what happened between him and Missouri, that Mucha had the intent to frame Missouri for a crime he did not commit, and that Mucha's conduct was not an accident. Thus, we also conclude that the second prong of the Sullivan test is satisfied.

¶ 17. The final prong addresses whether the probative value of the Scull testimony would be substantially outweighed by the danger of unfair prejudice, waste of time or confusing the jury. See Wis. Stat. § 904.03. Would it unfairly prejudice the State to allow Scull's testimony? We think not. The State, like this court, operates with the priority of searching for truth and justice. Our system depends upon all witnesses being forthright and truthful and taking seriously the oath to tell the truth when testifying in a legal proceeding. Evidence that challenges the credibility of a State's witness promotes that goal and cannot be summarily dismissed as overly prejudicial. When the jury hears all of the witnesses who can provide relevant information on the issues, it can make a fair assessment as to who is being truthful. This is of particular importance in a case that relies primarily on whether the officer or the defendant is telling the truth. It is not appropriate for this court, nor was it appropriate for the trial court, to assume that the defendant was lying and the officer was telling the truth. Resolution of credibility issues and questions of fact must be determined by the factfinder.

¶ 18. Admitting Scull's testimony will undoubtedly cause the State to proffer additional witnesses in its rebuttal case. This, however, cannot constitute unfair prejudice, sufficient to override the probative value of this evidence, particularly when the Scull incidents were not remote in time.

¶ 19. The final question then is whether proffering Scull's testimony would confuse the jury or waste time. Under the circumstances presented here, we conclude that neither would occur. Scull's offering is straightforward and uncomplicated. Cautionary instructions utilized in every other-acts case could be given to ensure that Scull's testimony is used for a proper purpose.

¶ 20. Moreover, Wis. Stat. § 906.08(2) provides:

Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility... may not be proved by extrinsic evidence. They may, however ... if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination ....

¶ 21. Based on this statute, at a minimum, defense counsel should have been able to ask Mucha about the Scull incident during cross-examination. The Scull incident was not remote in time, and was probative of whether Mucha was being truthful or untruthful.

¶ 22. In addition, "[t]he bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely." Williamson, 84 Wis. 2d at 383. The defense here argued that Mucha had a bias or prejudice against black people who were not immediately compliant with his orders. Thus, that bias/prejudice can be explored through extrinsic evidence to attack Mucha's character. As long as this evidence is direct and positive and not remote and uncertain, it may be received to discredit the testimony of the witness. See id. at 383 n.l. Here, we are convinced that the Scull testimony satisfies these requisites. Thus, we conclude that the trial court erroneously exercised its discretion in refusing to allow the defense to present its witnesses who would have attacked the credibility of Officer Mucha. The jury should hear the defense witnesses so that it can make a fair and informed determination as to what truly happened in this case.

B. Four Additional Witnesses.

¶ 23. The second issue is whether the trial court erroneously concluded that the testimony from four additional witnesses who had similar bad experiences with Officer Mucha was inadmissible.

¶ 24. For the same reasons discussed above, we conclude that the trial court erred in summarily concluding that none of these witnesses' testimony would be admissible at Missouri's trial. Again, at a minimum, defense counsel should be allowed to cross-examine Officer Mucha about each of these four incidents. Moreover, based on Williamson, each of these four witnesses could be called to testify as to the bias or prejudice of Officer Mucha in order to attack Mucha's credibility.

¶ 25. This court cannot decide whether Mucha or Missouri is telling the truth. We do know that one of them is not. Given the closeness in time, the similarity of experience that these additional four witnesses had with Mucha, and the apparent lack of any connection between any of these witnesses to Missouri, we conclude that defense counsel should not be foreclosed from proffering these witnesses to attack Mucha's credibility at Missouri's trial. The defense is entitled to present its best defense. In a case like Missouri's, where the primary resolution rides on the credibility of a police officer verses the credibility of the defendant, we cannot foreclose the defense from calling the witnesses it needs to present its case. The trial court erroneously exercised its discretion in making the evidentiary determination that the testimony of these witnesses was inadmissible. Accordingly, we reverse and remand this case for a new trial with directions to the trial court to permit admission of the other-acts evidence.

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

       The three-part test asks first whether the other-acts evidence is offered for an acceptable purpose; second, whether the proffered evidence is relevant; and third, whether the probative value of the proffered evidence is substantially outweighed by the danger of unfair prejudice. See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998).

       The five parts of the newly discovered evidenced test are: "(1) the evidence was discovered after trial; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue; (4) the evidence is not merely cumulative to the evidence presented at trial; and (5) a reasonable probability exists of a different result in a new trial." State v. Coogan, 154 Wis. 2d 387, 394-95, 453 N.W.2d 186 (Ct. App. 1990).

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       We also conclude that the trial court's error was not harmless. There is a reasonable probability that if these witnesses testify at a new trial, the result may be different.


author: ANDERSON, J.

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

      Nos. 2005AP979-CR, 2005AP980-CR.

      Submitted on briefs February 2, 2006.

    Decided March 15, 2006.

    2006 WI App 67
    (Also reported in 713 N.W.2d 165.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, assistant state public defender, Madison. ■

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Eileen W. Pray, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Brown, Nettesheim and Anderson, JJ.
   ANDERSON, J.

¶ 1. Ronald W Stewart appeals from judgments convicting him of felony bail jumping and felony fleeing and orders denying his postconviction motions. The parties agree and so do we that the trial court erred in imposing an eight-year term of probation for Stewart's felony bail jumping conviction. Wisconsin Stat. § 973.09(2)(b) (2003-04) expressly provides, that the maximum term of probation for Class B-H felonies is linked to the maximum term of confinement for the crimes in those classes. Felony bail jumping is a Class H felony and the maximum term of confinement for a Class H felony is three years. Because Stewart was convicted of two felonies at the same time, the maximum period of probation under § 973.09(2)(b) is five years. Therefore, Stewart's eight-year term of probation is commuted under Wis. Stat. § 973.09(2m) to a five-year term.

¶ 2. Stewart also argues that the trial court erred in imposing as a condition of probation for the felony bail jumping conviction and as a condition of extended supervision for the felony fleeing conviction that he was not to enter Richmond township in Walworth county. We conclude that this geographical limitation does not comply with the requirements that it be narrowly drawn and not unduly restrictive of his liberties. Therefore, the condition precluding Stewart from entering Richmond township is stricken from the judgments of conviction. We remand so the trial court can enter amended judgments of conviction consistent with this opinion.

Eight-year term of probation

¶ 3. Stewart pled guilty to felony bail jumping in violation of Wis. Stat. § 946.49(l)(b). The trial court sentenced Stewart to an eight-year probation term. The court determined that pursuant to Wis. Stat. § 973.09(2)(b), the maximum term of probation depends upon the maximum term of imprisonment and not the maximum term of confinement. The maximum term of imprisonment equals the maximum term of initial confinement plus the maximum term of extended supervision. Michael B. Brennan, Thomas J. Hammer & Donald V. Latorraca, Fully Implementing Truth-In-Sentencing, Wis. Law., Nov. 2002, at 12 Figure 1. From this, the trial court reasoned that the maximum term of probation for a felony bail jumping conviction, a Class H felony, is six years: the maximum term of confinement is three years and the maximum term of extended supervision is three years. See Wis. Stat. § 973.01(2)(b) and (d). The trial court then added one year for each of Stewart's felony convictions for a total term of probation of eight years. See § 973.09(2)(b). The parties both agree that the trial court's interpretation and application of § 973.09(2)(b) runs contrary the statute's plain language.

¶ 4. Statutory interpretation and the application of a statute to specific facts are questions of law that we review de novo. State v. Moran, 2005 WI 115, ¶ 26, 284 Wis. 2d 24, 700 N.W.2d 884. "[Statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" Id. (citation omitted)." 'If this process of analysis yields a plain, clear, statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.' Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legislative history." Id. (citation omitted).

¶ 5. Wisconsin Stat. § 973.09(2) provides:

(2) The original term of probation shall be:
(b) 1. Except as provided in subd. 2., for felonies, not less than one year nor more than either the maximum, term of confinement in prison for the crime or 3 years, whichever is greater.
2. If the probationer is convicted of 2 or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction.

Id. (emphasis added). Thus, the statute plainly and unambiguously provides that the maximum term of probation is dependent upon the maximum term of confinement for the crime committed and not, as the trial court held, the maximum term of imprisonment.

¶ 6. While the language of the statute is clear and we need not consult extrinsic sources, we do observe that our interpretation of Wis. Stat. § 973.09(2)(b) is consistent with the interpretations set forth by other judges and legal scholars. The record contains a chart constructed by Judge Patrick J. Fiedler. The chart entitled "Truth in Sentencing II — Penalty Chart" shows that under § 973.09(2) (b), the maximum term of probation equals the maximum term of confinement for Class B-H felonies.

¶ 7. The record also contains a November 2002 Wisconsin Lawyer article entitled "Fully Implementing Truth-In-Sentencing" written by Judge Michael B. Brennan, Thomas J. Hammer and Donald V Latorraca. Judge Brennan was the staff counsel for, and Hammer served on, the Criminal Penalties Study Committee (CPSC), which was the entity responsible for drafting proposed statutes for the full implementation of truth-in-sentencing. See Brennan, supra, at 10 & 10 n.a1, 11-12.

¶ 8. In their Wisconsin Lawyer article, Judge Brennan and Hammer and Latorraca teach that prior to TIS-II, the original term of probation for a person convicted of a felony could not be more than either the statutory maximum term of imprisonment for the crime or three years, whichever was greater. See Brennan, supra, at 49. The authors then instruct that following the enactment of TIS-II, "[t]he maximum term of probation for Class B-H felonies equals the maximum initial term of confinement for those crimes." See Brennan, supra, at 12 Figure 1, 49. The authors explain the reasons for the changes as follows:

The CPSC recommended that the maximum original term of probation for Class B-H felonies be linked to the maximum term of confinement for crimes in those classes, rather than the maximum term of imprisonment. The committee believed that the dual objects of probation — rehabilitation of the offender and protection of the state and community interest — could be achieved within these time periods. The legislature adopted the CPSC's recommendations.

Id. at 49 (footnotes omitted).

¶ 9. Having set forth the proper interpretation of Wis. Stat. § 973.09(2), we now turn to its application in this case. Stewart was convicted of felony bail jumping, which is a Class H felony. The maximum term of confinement for a Class H felony is three years. See Wis. Stat. § 973.01(2)(b)8. Because Stewart also was convicted of felony fleeing at the same time, the maximum term of probation is increased by two years (one year for each felony conviction) for a total of five years. See § 973.09(2)(b). Stewart's eight-year term of probation is commuted to a five-year term. See § 973.09(2m).

Banishment as a condition of probation and extended supervision

¶ 10. As a condition of his probation and a condition of his extended supervision, the trial court banished Stewart from Richmond township in Walworth county. Stewart complains that, given the facts and circumstances, the condition fails to meet the requirements that it be narrowly drawn and not unduly restrictive of his liberties.

¶ 11. Sentencing courts have wide discretion and may impose any conditions of probation or supervision that appear to be reasonable and appropriate. State v. Nienhardt, 196 Wis. 2d 161, 167, 537 N.W.2d 123 (Ct. App. 1995); State v. Koenig, 2003 WI App 12, ¶ 7, 259 Wis. 2d 833, 656 N.W.2d 499. We review such conditions under the erroneous exercise of discretion standard to determine their validity and reasonableness measured by how well they serve their objectives: rehabilitation and protection of the state and community interest. Nienhardt, 196 Wis. 2d at 167; Koenig, 259 Wis. 2d 833, ¶ 7.

¶ 12. The conditions may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person's rehabilitation. Nienhardt, 196 Wis. 2d at 168. Convicted felons do not enjoy the same degree of liberty as those individuals who have not been convicted of a crime. State v. Oakley, 2001 WI 103, ¶ 17, 245 Wis. 2d 447, 629 N.W.2d 200. Whether a particular condition violates a defendant's constitutional right is a question of law which this court reviews de novo. State v. Lo, 228 Wis. 2d 531, 534, 599 N.W.2d 659 (Ct. App. 1999).

¶ 13. Geographical limitations, while restricting a defendant's rights to travel and associate, are not per se unconstitutional. See Predick v. O'Connor, 2003 WI App 46, ¶ 18, 260 Wis. 2d 323, 660 N.W.2d 1; Nienhardt, 196 Wis. 2d at 168-69 (declining to address the defendant's specific constitutional claims, but indicating that the geographical limitation in that case did not impermis-sibly infringe on her constitutional rights). Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn. Predick, 260 Wis. 2d 323, ¶ 18.

¶ 14. The facts underlying the crimes charged in Stewart's other criminal cases formed the basis for the trial court's decision to impose a geographic restriction as a condition of Stewart's probation and extended supervision. The record shows that in 2003 Stewart made several telephone calls of a sexual nature to one of his neighbors. On numerous occasions, he also stood naked in the open doorway to his barn and masturbated. Several neighbors observed this behavior. He was also observed in the town of Sugar Creek sitting in a parked car with the driver's side door open. He was naked and possibly masturbating at the time. The record also demonstrates that he had a history of abusing his wife and children.

¶ 15. In imposing the geographical limitation, the trial court was concerned with protecting the victims of his crimes:

He is not to enter Richmond Township, Walworth County, Wisconsin. I do agree with the state that this is an example of where he has literally tormented the people in close relationship in that township and especially that house repeatedly. Now, I know he committed one of his offenses in Sugar Creek Township but against people who have connection with Richmond. They deserve protection. This is an extraordinary case where he did it again and again and again as the history shows. The charges that he's charged with are only the tip of the iceberg. They're the — for the type of conduct he was forcing these women to give into; and if you read their letters, they'll — they'll point out that he did it again and again. And they tried to ignore him, and they didn't want to make him mad and, et cetera, but he just got — kept getting worse and worse.
I believe that I'm fulfilling a function of the protection of the community by keeping him out of Richmond where these particular victims were and he seemed to take a perverse delight in going after these particular neighbors of his.
As I say, I don't think that they can have real peace of mind unless they know that at least he's outlawed from that particular township, and the area is narrow and small enough where it does not in my mind infringe upon any major constitutional right of his.

In its oral ruling following the postconviction motion hearing, the trial court upheld the banishment condition. The court explained that it provided the victims with some peace of mind, offering them a margin of territorial safety.

¶ 16. While the geographical limitation certainly promotes the purposes of protecting the victims in this case and rehabilitating Stewart, it is broader than necessary to accomplish those purposes. One incident took place in the town of Sugar Creek; however, the record reveals that the majority of Stewart's inappropriate, criminal and threatening behavior took place in and around his home. It was directed towards his wife, children and neighbors and not the Richmond township community at large. The court could have fashioned a more narrowly drawn condition banishing Stewart from his residence and the immediate neighborhood surrounding it.

¶ 17. Further, the no contact condition of his probation and supervision, a more narrowly drawn restriction on Stewart, already offers protection to his victims and facilitates his rehabilitation. As part of the no contact condition, the court ordered that Stewart "is to have absolutely no contact with the victims, their residences, or immediate family; and that means he doesn't contact them personally, he doesn't write them, he doesn't telephone them, he doesn't e-mail them, and he doesn't send anything or ask any third party to communicate to them." Thus, the victims Stewart targeted are protected because the no contact condition prevents Stewart from having any communication whatsoever with them, their families and their residences. The condition aids in Stewart's rehabilitation because it removes him from the temptation of engaging in the same types of conduct towards his victims. In light of these safeguards, there is no reason why Stewart should be precluded from entering or residing in the entire Richmond township.

¶ 18. The State attempts to draw comparisons with Nienhardt, Predick, and State v. Simonetto, 2000 WI App 17, 232 Wis. 2d 315, 606 N.W.2d 275, cases in which this court upheld banishment provisions. See Nienhardt, 196 Wis. 2d at 164-66 (upholding a condition of probation banishing the defendant from the city of Cedarburg); Predick, 260 Wis. 2d 323, ¶ 1 (upholding an order banishing defendant from Walworth county); Simonetto, 232 Wis. 2d 315, ¶¶ 1, 3 (upholding a condition of probation prohibiting the defendant from going "where children may congregate"). We are not persuaded that these cases dictate an affirmance here.

¶ 19. First, we remind the State that whether a geographical limitation is narrowly drawn is determined by looking at the specific facts and circumstances of each case. See Predick, 260 Wis. 2d 323, ¶ 18. As the trial court itself stated, "I am well aware that the appellate court's decision in upholding [the trial court's] barring of O'Connor in the Predick case from Walworth County was not a carte blanche invitation to do it again. The appellate court made it clear that the Predick facts were extraordinary . ..."

¶ 20. Second, unlike those cases, the facts and circumstances of this case demonstrate that the prohibition on Stewart's entering Richmond township was overbroad and unduly restrictive of his liberties. Unlike the other cases, the dual goals of rehabilitation and protection of the community interest are already functionally accomplished by a more narrowly drawn no contact condition. Predick, 260 Wis. 2d 323, ¶ 2 (noting that the trial court had attempted to implement more narrowly tailored orders, including several no contact orders, but that they had failed to prevent the defendant's continuous harassment); Nienhardt, 196 Wis. 2d at 165-66 (indicating that the court had imposed a no contact order, but not discussing the terms of the order or whether it would sufficiently protect the victim or rehabilitate the defendant); Simonetto, 232 Wis. 2d 315, ¶¶ 7, 8 (noting that the defendant, a "nascent child molester" with an extensive and graphic collection of child pornography, was not someone "who should be hanging around parks, malls and beaches"). Further, unlike the defendants in Predick and Nien-hardt, Stewart was an established, longtime resident of Richmond township.

¶ 21. Given the facts and circumstances of this case, we conclude that the condition of probation and condition of extended supervision banishing Stewart from Richmond township is not narrowly drawn and is unduly restrictive of Stewart's liberties. Although the geographic restriction does serve the purposes of probation and extended supervision, it is broader than necessary to achieve those purposes.

Conclusion

¶ 22. In sum, we hold that Wis. Stat. § 973.09(2)(b) expressly provides that the maximum term of probation for Class B-H felonies is linked to the maximum term of confinement for the crimes in those classes. Stewart's eight-year term of probation is commuted to a term of five years. We also hold that the condition of probation and extended supervision banishing Stewart from Richmond township is not narrowly drawn and is unduly restrictive of his liberties. On remand, the trial court shall enter amended judgments of conviction consistent with this opinion.

By the Court. — Judgments and orders reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       According to the trial court at the time of sentencing, Stewart and his wife were in the process of a divorce.

       Contrary to the State's assertions, it does not matter that Stewart is not likely to be awarded the family home in the divorce proceedings and it does not matter that Stewart will be in prison for the next several years. The fact remains that Stewart lived in Richmond township for several years prior to his convictions.