source: Caselaw Access Project

author: VERGERONT, PJ.

license: Public Domain

text:
    National Motorists Association, Plaintiff-Appellant, v. Office of the Commissioner of Insurance, Defendant-Respondent.
    Court of Appeals

      No. 02-0511.

      Submitted on briefs September 10,2002. —
    Decided November 14, 2002.

    2002 WI App 308
    (Also reported in 655 N.W.2d 179.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Rex R. Anderegg of Anderegg & Mutschler, LLP, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Roggensack and Deininger, JJ.

       Petition to review denied 1-21-03.

   VERGERONT, PJ.

¶ 1. The National Motorist Association appeals the circuit court order affirming the decision of the Office of the Commissioner of Insurance that the association must cease and desist from marketing and servicing its Pre-Paid Traffic Ticket Program in Wisconsin until it obtains a certificate of authority pursuant to Wis. Stat. §§ 601.04(2) and 610.11 (1999-2000). The association (NMA) contends that its program (PTT program) is a service provided to its members, not insurance, and it is not doing an insurance business in Wisconsin. NMA also argues that even if the PTT program is insurance, the Office of the Commissioner of Insurance (OCI) acted arbitrarily and capriciously in deciding not to exempt the program from regulation. Finally, NMA raises constitutional challenges of vagueness, overbreadth, and violation of equal protection.

¶ 2. Giving great weight deference to OCI's construction and application of the statutes it administers, we hold that its conclusions that the PTT program is insurance and NMA is doing an insurance business in Wisconsin are reasonable. We also hold that OCI's decision not to exempt the PTT program from regulation is not arbitrary or capricious. Finally, we hold that NMA's constitutional challenges are without merit. Accordingly, we affirm.

BACKGROUND

¶ 3. NMA is a for-profit Wisconsin corporation that has operated in Wisconsin since 1982, with its place of business located in Waunakee, Wisconsin. It is a membership organization established to represent the rights and interests of North American motorists; it currently has 6,500 members nationwide, with approximately 200 residing in Wisconsin. The annual membership fee is $29.

¶ 4. In May 2000, NMA sent a mailing to all of its members, including its Wisconsin members, offering the PTT program as a new product. Under this program, a subscriber pays an additional monthly fee of $5 for each $100 of "fine protection" up to a maximum of $1,000. If a subscriber receives a traffic ticket, the subscriber mails to NMA a copy of the traffic ticket and a receipt from the clerk of courts showing the amount paid by the subscriber. NMA then reimburses the subscriber up to the face amount of the contract for each ticket.

¶ 5. NMA sent all mailings for the PTT program from its Waunakee office, and processed all claims and mailed all reimbursement checks from that office. All money received from subscribers for the program was deposited in a Wisconsin financial institution.

¶ 6. As of December 2000, the PTT program had 28 subscribers. Between May 1, 2000 through November 9, 2000, NMA collected total payments of $1,887.50 from subscribers and paid a total of $623 in traffic ticket reimbursements. One Wisconsin resident applied for the PTT program, but NMA declined coverage because of this pending action.

¶ 7. After correspondence between OCI and NMA, OCI concluded that the PTT program was insurance and that NMA was not authorized to solicit insurance business in Wisconsin or any other state. On August 30, 2000, OCI issued an order directing NMA to cease conducting the PTT program in Wisconsin unless it obtained a certificate of authority authorizing it to conduct an insurance business in Wisconsin. NMA sought review of OCI's decision under Wis. Stat. § 601.62, and a hearing was held before an administrative law judge. The ALJ concluded that the PTT program was insurance because it was a promise by NMA to pay another for a specified loss — a traffic fine — in return for premiums paid. The ALJ also concluded, that in its marketing and service of contracts under the PTT program, NMA was doing an insurance business as defined in Wis. Stat. § 618.02(2), in violation of Wis. Stat. §§ 601.04(2) and 610.11. The ALJ modified OCI's order to make clear that "even with no Wisconsin policyholders of the PTT program, NMA must still cease all 'insurance business activities' with respect to the marketing and servicing of the [PTT program] unless and until NMA becomes a Wisconsin licensed insurer." Pursuant to Wis. Stat. § 227.46(3)(a), the ALJ's decision was the final decision of OCI, and we will therefore refer to it as "OCI's decision."

¶ 8. NMA petitioned the circuit court for judicial review of OCI's decision, and the circuit court affirmed.

DISCUSSION

Construction of Statute — "Insurance" and "Doing Insurance Business"

¶ 9. We address first NMA's contentions that the PTT program is not insurance and NMA is not doing an insurance business. Wisconsin Stat. § 610.11 provides that "no person may do an insurance business as defined in s. 618.02(2) ... in this state . . ., except: (1) An insurer authorized to do business in this state, within the limits of its certificate of authority...." Similarly, Wis. Stat. § 601.04(2) prohibits any insurer incorporated or organized under the laws of this state, with certain exceptions, from "transacting] insurance business in this state without having in effect a certificate of authority." Section 601.04(2).

¶ 10. Whether the PTT program is insurance and whether NMA is doing an insurance business present questions of statutory construction, issues of law, which we review de novo. However, we may give varying degrees of deference to an agency's interpretation of a statute that it is charged with administering. Barron Elec. Coop. v. PSC, 212 Wis. 2d 752, 761, 569 N.W.2d 726 (Ct. App. 1997). We conclude it is appropriate to give great weight deference to OCI's interpretation and application of the statutes involved in determining whether the PTT program is insurance and whether NMA is doing an insurance business in Wisconsin.

¶ 11. Great weight deference is appropriate when: (1) the agency is charged with administration of the statute being interpreted; (2) the agency's interpretation is one of long standing; (3) the agency employed its expertise or specialized knowledge in arriving at its interpretation; and (4) its interpretation will provide uniformity and consistency in the application of the statute. Id. at 761. It is not necessary that the agency has previously ruled on the application of the statute to a factual situation similar to the one presented if the agency has extensive experience in administering the statutory scheme in a variety of situations. Id. at 764-65 and n.8. Great weight deference is also appropriate when an agency's interpretation and application of a statute are intertwined with value and policy determinations inherent in the agency's statutory decision-making function. Id. at 761.

¶ 12. Each of the above criteria is met in this case. OCI is charged by statute with administering and enforcing Wis. Stat. chs. 600 to 655. Wis. Stat. § 601.41(1). OCI has been administering these statutes and determining what constitutes insurance and what constitutes the business of insurance since at least 1933. OCI employs its expertise in making these determinations, and its interpretation of the statutes it administers provides uniformity and consistency in the application of those statutes. In addition, what constitutes insurance and doing an insurance business is intertwined with value and policy judgments inherent in OCI's statutory decision-making function. Indeed, these questions lie at the core of the authority that the legislature has given OCI.

¶ 13. Because great weight deference is appropriate, we will affirm OCI's construction and ápplication of the statutes if they are reasonable — even if an alternative reading of the statutes is more reasonable. The burden of showing that the agency's interpretation is unreasonable is on the party seeking to overturn the agency's action; the agency does not have to justify its interpretation. Barron Elec. Coop., 212 Wis. 2d. at 761 n.4.

¶ 14. We conclude that OCI's decision that the PTT program is insurance is a reasonable interpretation and application of that term as used in Wis. Stat. §§ 610.11 and 601.04(2). "Insurance" is not defined in the statute, but it has a commonly understood meaning of a contract that shifts the risk of loss in exchange for premiums. See Hillegass v. Landwehr, 176 Wis. 2d 76, 81, 499 N.W.2d 652 (1993). The definition OCI used is consistent with this — a promise by one party to pay another for a specified loss in return for premiums paid — and is therefore reasonable. OCI's application of this definition to the facts in this case is also reasonable, in that there is no dispute that NMA agreed to reimburse subscribers for loss in the form of traffic fines and forfeitures in exchange for monthly payments.

¶ 15. NMA offers several reasons why its PTT program is not insurance, but none of them shows that OCI's decision is unreasonable. First, NMA argues that it is a service organization, and the PTT program is not insurance but, rather, a service provided to NMA members as a means of furthering NMA's public policy to encourage the challenge of unfair traffic laws and tickets. NMA explains that if subscribers know that all or a significant portion of their traffic fines will be reimbursed, they will be more inclined and more financially able to obtain professional assistance to contest a traffic citation. NMA may well be primarily a service organization, but OCI does not seek to regulate all NMA's activities — only the PTT program. NMA's purpose in offering that program does not alter the fact that it has chosen to accomplish its purpose by agreeing to reimburse subscribers for loss from traffic fines in. exchange for payments, thereby shifting the risk of that loss from subscribers to NMA.

¶ 16. Second, NMA argues that the risk of loss shifted to it is not significant, because subscribers, by complying with all traffic laws, have a high degree of control over whether or not they receive a traffic ticket. This is not a persuasive argument, since the same could be said for many other types of insurance: for example people have control over whether they drive carefully, but they buy motor vehicle liability insurance because they know they might be liable for negligently causing injury to another's person or property in spite of their efforts to be careful.

¶ 17. Third, NMA argues that under one author's definition of insurance, the PTT program is clearly not insurance because "there is no meaningful sharing of risk for fortuitous losses" over a large number of persons. However, the use of other definitions of "insurance" in other contexts does not show that the definition used by OCI is unreasonable.

¶ 18. We also conclude that OCI's decision that NMA is doing an insurance business in this state is a reasonable construction and application of Wis. Stat. § 610.11. "Doing an insurance business includes," among other things: (a) soliciting or making an insurance policy contract, (b) taking or receiving an application for insurance, (c) collecting or receiving an insurance premium, (d) issuing or delivering an insurance policy, (e) setting rates, and (f) settling claims. Wis. Stat. § 618.02(2). OCI determined that NMA performed all these activities in Wisconsin, and NMA does not dispute that. Therefore, OCI's conclusion that NMA was doing an insurance business in Wisconsin within the meaning of this statute is a reasonable one.

¶ 19. NMA argues, however, that other sections of the statute make it clear that OCI may regulate insurance business only when there is an insured in Wisconsin, and the PTT program has no Wisconsin subscribers at this time. OCI rejected this argument, concluding that there is no such restriction in the statutes. Because NMA has phrased this argument to implicate OCI's statutory authority, we will apply a de novo standard of review. CenturyTel of Midwest-Kendall, Inc. v. PSC, 2002 WI App 236, ¶ 25, 257 Wis. 2d 837, 653 N.W.2d 130. We conclude that OCI does have the statutory authority to regulate an entity that meets the requirements of "doing an insurance business" as defined in Wis. Stat. § 618.02(2) even if no Wisconsin resident is an insured.

¶ 20. First, there is no restriction to Wisconsin insureds in the plain language of Wis. Stat. §§ 610.11 or 618.02(2). Second, the section on which NMA relies, Wis. Stat. § 600.01(2), does not add this restriction, but instead provides additional categories of situations OCI may regulate. Section 600.01(l)(b) lists situations to which Wis. Stat. chs. 600 to 646 do not apply, and subsec. (2) provides exceptions to that — in other words, situations OCI may regulate:

(2) EXCEPTIONS, (a) After a hearing, the commissioner may order an insurer to transfer the Wisconsin portion of the business under sub. (l)(b)3. or 4. to an authorized insurer if it is written by an unauthorized one, or may subject any insurance under sub. (l)(b)l. to 6. to chs. 600 to 646, on a finding that the foregoing conditions are not satisfied or that any circumstances require that the insurer be authorized to do business in this state or that the transactions be subject to chs. 600 to 646 in order to provide adequate protection to Wisconsin insureds and public. Coverage of a resident of this state is the doing of an insurance business in this state and subjects the insurer to the jurisdiction of the commissioner and of the courts of this state.

Section 600.01(2) (emphasis added). Read in context, it is plain that the italicized language, on which NMA relies, does not limit the definition of "doing an insurance business" in § 618.02(2) to "coverage of a resident of this state." Instead, the language identifies a circumstance in which activities not subject to OCI regulation under § 600.01(l)(b) are nonetheless subject to OCI regulation.

Arbitrary and Capricious Challenge

¶ 21. NMA contends that, even if the PTT program is insurance, OCI had the authority to exempt the PTT program from regulation, and it acted arbitrarily and capriciously by refusing to do so. NMA asserts that OCI deviated from its prior practice without an adequate reason, because it has exempted prepaid legal services plans due to their limited scope, and that same rationale applies to the PTT program. NMA also contends there is no rational basis for regulating a program with so few subscribers and so little potential for harm.

¶ 22. We review an agency's discretionary decisions under Wis. Stat. § 227.57(8), which provides:

(8) The court shall reverse or remand the case to the agency if it finds that the agency's exercise of discretion is outside the range of discretion delegated to the agency by law; is inconsistent with an agency rule, an officially stated agency policy or a prior agency practice, if deviation therefrom is not explained to the satisfaction of the court by the agency; or is otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion.

¶ 23. With respect to prepaid legal services plans, OCI has promulgated a rule exempting certain "legal expense insurance plans" from regulation and limiting the regulation of other legal expense insurance plans. Wis. Admin. Code § INS 22.01(2). This rule is based on the finding that:

certain plans of legal expense coverage, although they may constitute insurance plans, do not require regulation by the commissioner of insurance. The conduct of the lawyers is regulated by the state supreme court and, given the minimal coverage aspects of these plans, they do not require regulation by the commissioner. All other forms of legal expense insurance are subject to full insurance regulation.

Wis. Admin. Code § INS 22.01(1).

¶ 24. We do not agree that the rule regarding prepaid legal services establishes a "prior agency practice." Rather, it is one occasion on which OCI has exercised its rule-making authority under Wis. Stat. § 600.01(l)(b)5, which provides:

(b) Unless otherwise expressly provided, chs. 600 to 646 do not apply to:
5. Other business specified in rules promulgated by the commissioner on a finding that the transaction of such business in this state does not require regulation for the protection of the interests of Wisconsin insureds or public or for which it would be impracticable to require compliance with chs. 600 to 646, when necessary expenses and efforts are compared with the possible benefits.

We also do not agree with NMA that § 600.01(l)(b)5 gives OCI the authority to exempt it in the absence of a rule: by its plain terms, this section exempts only those businesses that OCI has specified in rules it has promulgated, based upon the requisite findings.

¶ 25. In the absence of a rule promulgated under Wis. Stat § 600.01(l)(b)5, OCI does have the authority to exempt a person from statutory requirements under certain conditions. Section 600.13(1) provides:

Orders relaxing restrictions. (1) Issuance. After notice under sub. (2) and a hearing, the commissioner may issue an order freeing a person from any requirement of chs. 600 to 647 otherwise applicable to the person if the commissioner finds that the interests of residents, as defined in s. 647.01(11) [relating to continuing care contracts] insureds, creditors and the public will not be endangered thereby.

However, we may reverse OCI's discretionary decision not to exempt the PTT program from applicable statutory requirements only if it is arbitrary and capricious. Wisconsin Prof'l Police Ass'n v. PSC, 205 Wis. 2d 60, 73-74, 555 N.W.2d 179 (Ct. App. 1996). An agency decision is arbitrary and capricious if it lacks a rational basis. Id.

¶ 26. We conclude OCI does have a rational basis for not exempting the PTT program from the applicable statutory requirements. There is a rational basis for distinguishing between prepaid legal services plans and the PTT program because, as the findings in Wis. Admin. Code § INS 22.01 state, the conduct of lawyers is regulated by the supreme court. It is reasonable for OCI to decide that supreme court regulation provides sufficient protection for the public such that OCI need not regulate, or need not fully regulate, those plans. There is no analogous regulation of the PTT program by a government entity other than OCI.

¶ 27. There is also a rational basis for OCI's rejection of NMA's argument that it should be exempt because of the small number of PTT program subscribers and small amount of revenue. As OCI's decision explains, with 6,500 NMA members and no limit on its future membership, and with NMA's figures that there are 50 million traffic tickets issued in this country each year, the current size of the program could grow considerably. Moreover, as OCI's decision also points out, there is no indication in the statute that the size of the insurance business is relevant to whether it should be regulated. Given that one of the purposes of Wis. Stat. chs. 600 to 655 is to ensure that policy holders, claimants, and insurers are treated fairly and equitably, Wis. Stat. § 601.01(2), it is reasonable for OCI to conclude that individuals who purchase insurance through a small program are just as entitled to protection as individuals who purchase protection through a large program.

¶ 28. Finally, OCI contends in its brief, and NMA appears to concede, that OCI has used Wis. Stat. § 600.13 to exempt only publicly-sponsored programs. In other words, another governmental entity is involved in regulating the program. That is a rational basis for exempting programs under § 600.13, and the absence of analogous alternative regulation of the PTT program is a rational basis for not exempting the PTT program.

Constitutional Challenges

¶ 29. NMA claims the definition of "insurance" in Wis. Stat. § 600.03(25) is unconstitutionally vague, the definition of "insurance" OCI used is unconstitutionally overbroad, and OCI violated its right to equal protection by refusing to exempt the PTT program from regulation, while exempting prepaid legal services programs. NMA raised these challenges before OCI, but OCI did not decide them, concluding it lacked authority to rule on the constitutionality of the statutes. The circuit court decided there was no merit to the constitutional challenges. We review these constitutional issues de novo. County of Kenosha v. C&S Mgmt., Inc., 223 Wis. 2d 373, 393-94, 588 N.W.2d 236 (1999); Schmeling v. Phelps, 212 Wis. 2d 898, 905, 569 N.W.2d 784 (Ct. App. 1997).

¶ 30. A civil statute violates the right to due process on vagueness grounds when it is so vague and uncertain that it is impossible to execute it or to ascertain the legislature's intent with reasonable certainty. Forest Home Dodge, Inc. v. Earns, 29 Wis. 2d 78, 94, 138 N.W.2d 214 (1965). We presume statutes are constitutional and the party challenging the statute has the burden of persuading us otherwise. Id.

¶ 31. NMA argues that the definition of insurance in Wis. Stat. § 600.03(25) is vague and confusing. This section provides:

(25) (a) "Insurance" includes any of the following:
1. Risk distributing arrangements providing for compensation of damages or loss through the provision of services or benefits in kind rather than indemnity in money.
2. Contracts of guaranty or suretyship entered into by the guarantor or surety as a business and not as merely incidental to a business transaction.
3. Plans established and operated under ss. 185.981 to 185.985.
(b) "Insurance" does not include a continuing care contract, as defined in s. 647.01(2).

This is not a definition of insurance. As Wis. Stat. § 600.02(2) plainly provides, "[statements that a term 'includes' or 'excludes' something else are not definitions." In its decision, OCI did not use § 600.03(25) as a definition of insurance, but simply pointed out that the definition it did use was consistent with this section: the legislature's inclusion of "risk distributing arrangements providing for compensation of damages or loss through the provision of services or benefits in kind rather than indemnity in money" indicates that such arrangements providing compensation through money are assumed to be "insurance."

¶ 32. As we have stated above, "insurance" is not defined in the statute, but the supreme court has determined that it has a common meaning, Hillegass, 176 Wis. 2d at 81, and that is the definition OCI used. We conclude that Wis. Stat. § 600.03(25) is not unconstitutionally vague as applied to NMA, nor is the use of the term "insurance" in the other applicable sections of Wis. Stat. chs. 600 and 601.

¶ 33. NMA's argument based on overbreadth is also without merit. The overbreadth doctrine applies when the language of a statute, given its normal meaning, is so broad that the sanctions of the statute may apply to conduct which the state is not entitled to regulate, such as First Amendment activity. State v. Tronca, 84 Wis. 2d 68, 89, 267 N.W.2d 216 (1978). In such situations, a party may challenge the statute based on its hypothetical application to others. Id. NMA is not challenging OCI's application of the term "insurance" as hypothetically violating the First Amendment rights of others, but as actually violating its own First Amendment rights. NMA claims that the purpose of the PTT program is to promote the "idea" that recipients of traffic tickets should contest them in court, rather than "fold their hands when the prosecutor ups the ante." However, OCI's regulation of the PTT program as insurance does not restrict NMA's right to advocate that idea. We conclude that the definition of insurance applied by OCI does not implicate NMA's First-Amendment rights and that the doctrine of overbreadth has no application.

¶ 34. Finally, NMA's claim of a violation of the equal protection clause fails because we have already concluded that there is a rational basis for exempting certain prepaid legal services plans from all or some regulation, while not doing so for the PTT program. When, as here, a fundamental right or suspect class is not implicated, there is no denial of equal protection when a difference in treatment is justified by a rational basis. Eternalist Found., Inc. v. City of Platteville, 225 Wis. 2d 759, 780, 593 N.W.2d 84 (Ct. App. 1999).

By the Court. — Order affirmed.

       Wisconsin Stat. § 601.04(2) provides:
      (2) Requirement of license. No insurer or plan subject to this section may transact insurance business in this state without having in effect a certificate of authority.
      Wisconsin Stat. § 610.11 provides:
      Qualified insurers. No person may do an insurance business as defined in s. 618.02(2) on the person's own account in this state, either in person, or through agents or brokers, or through the mail or any other method of communication, except:
      (1) An insurer authorized to do business in this state, within the limits of its certificate of authority; or ... .

        AI1 references to the Wisconsin statutes are to the 1999-2000 version unless otherwise noted.

       Certificates of authority are issued by the commissioner of insurance "if the commissioner is satisfied that [the insurer or plan] has met all requirements of law and that its methods and practices and the character and value of its assets will adequately safeguard the interests of its insureds and the public in this state." Wis. Stat. § 601.04(3).
      "Insurer" is defined in Wis. Stat. § 600.03(27) as:
      (27).. . means any person or association of persons doing an insurance business as a principal, and includes, but is not limited to, fraternals, issuers of gift annuities, cooperative associations organized under s. 185.981, insurers operating under subch. I of ch. 616 and risk retention groups. It also includes any person purporting or intending to do an insurance business as a principal on his or her own account.

       Wisconsin Stat. § 200.03 (1933) provides in part:
      (2) Supervision. He shall enforce the laws relating to insurance and shall exercise such supervision and control over insurance companies doing business in this state as the law requires; and to that end, he may make reasonable rules and regulations for their enforcement; and he may, by himself and his subordinates, conduct investigations, examinations and hearings, and take testimony.
      (3) License companies. He shall examine insurance companies applying for a license to transact business, and if the affairs or conditions of any company fully meet the requirements of law, he shall issue his certificate licensing such company to do business, otherwise he shall deny the application.

       NMA cites to Spencer Kimball, Insurance and Public Policy (University of Wisconsin Press, 1960):
      For purposes of this book, insurance may be defined as any formally organized scheme for the distribution of an adventitious economic loss over a large number of persons subject to the risk of such loss, with a view to replacing the uncertain risk of loss by a predictable cost.

       Among the requirements that legal expense plans must meet to be subject to limited regulation are that they provide only limited and specified types of legal services and they charge no more than $200 for one year of coverage. Wis. Admin. Code § INS 22.03.

       Before the ALJ, NMA argued that it did not believe a separate administrative rule was required under Wis. Stat. § 600.01(l)(b)5 for the relief NMA sought.

       For example, the record shows that on August 4, 1989, OCI issued an order exempting the Community Care for the Elderly Program (CCE) operated by the Community Care Organization of Milwaukee from regulation under Wis. Stat. § 600.13. Concluding that freeing CCE from OCI's regulation would not endanger the interests of residents, insureds, creditors, and the public, OCI considered five factors: (1) the limited number of potential enrollment in CCE (no more than three hundred), (2) the limited risk retained by OCI during CCE early years, (3) the existence of a backup plan for the subscribers in case CCE was discontinued, (4) the fact that CCE was also regulated by other federal and state regulators, and (5) the potential benefit to the public by providing elderly people with community-based long-term support services.

       Both the United States and Wisconsin Constitutions guarantee equal protection of the laws and due process of law, and the Wisconsin constitutional guarantees are essentially the same as those in the United States Constitution. County of Kenosha v. C&S Mgmt., Inc., 223 Wis. 2d 373, 393, 588 N.W.2d 236 (1999).


author: HOOVER, EJ.

text:
    Margaret R. Cierzan, by her Guardian ad Litem, D. J. Weis, and Patricia M. Cierzan, Plaintiffs-Appellants, v. Jessica Kriegel and the Estate of Virginia F Kriegel, Defendants, Pella Mutual Insurance Company, Defendant-Respondent, Shawano County Department of Health and Social Services, Nominal-Defendant.
    Court of Appeals

      No. 02-1209.

      Submitted on briefs October 21, 2002. —
    Decided November 19, 2002.

    2002 WI App 317
    (Also reported in 655 N.W.2d 217.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of D. James Weis and Habush Habush & Rottier S.C. of Rhinelander.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Arnold E Anderson and Mohr & Anderson, S.C. of Madison.

      Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 3-13-03.

   HOOVER, EJ.

¶ 1. Margaret Cierzan appeals a summary judgment finding that Jessica Kriegel was not an insured of Pella Mutual Insurance Company at the time Jessica accidentally started a fire in her grandmother, Virginia Kriegel's, home, severely injuring Cier-zan. Kriegel, the named insured under the Pella policy, was not at home when the fire broke out. The trial court concluded that Jessica was not "in [Kriegel's] care" at the time of the fire and therefore the corresponding clause in the insurance policy did not apply to make Jessica an insured. Cierzan argues that the phrase "in your care" is ambiguous, and based on Jessica's relationship with Kriegel, the trial court erred in its conclusion. While we agree with Cierzan that a named insured need not be physically present for someone to be in the insured's care and therefore covered by the policy, we nonetheless conclude that under the facts of this case Jessica was not under Kriegel's care at the time of the fire. Therefore, we affirm the judgment.

Background

¶ 2. The facts of the case are undisputed. Jessica, who was sixteen at the time of the fire, lived very close to Kriegel's home. Kriegel's grandchildren — Jessica and her three older brothers — as a whole spent a good deal of time with Kriegel, who was elderly, ill and blinded by diabetes. One or more of the grandchildren visited daily to assist Kriegel with various tasks and took turns spending the night. Jessica would spend a night at Kriegel's only if one of her brothers could not, although this was infrequent. Jessica lived with her parents, and Kriegel did not consider Jessica to be living with her.

¶ 3. Kriegel had rules for the grandchildren when they were in her home, including a rule prohibiting smoking. Kriegel also gave the grandchildren instructions regarding what they could or could not do in her home and disciplined them accordingly.

¶ 4. On August 2, 1998, Kriegel was out of town shopping with her daughter. Because they finished late in the day, Kriegel decided to stay at her daughter's home for the night. Kriegel did not know that Jessica and Jessica's fourteen-year-old friend, Cierzan, had gone to her home, although Jessica had blanket permission to be in the home. The girls had gone to Kriegel's to watch a football game on her big screen television. Jessica's mother came over to check on the girls at least twice. On her final visit, she had planned to take the girls back to Jessica's home, but Cierzan was already asleep and could not be roused. Jessica's mother allowed the girls to stay at Kriegel's because Jessica had spent the night there other times.

¶ 5. Jessica, however, disobeyed the rules and lit a cigarette causing a fire that severely injured Cierzan. Cierzan subsequently brought suit against Jessica, Kriegel, Kriegel's insurer Pella, and Shawano County Department of Health and Social Services.

¶ 6. Pella did not deny coverage for Kriegel but denied that Jessica was an insured. Pella and Cierzan brought competing motions for summary judgment on the issue of coverage and Pella prevailed. Following a trial, the jury found Jessica 100% negligent and awarded damages to Cierzan. Cierzan now appeals the final judgment on the sole issue whether summary-judgment for Pella was appropriate.

Standard of Review

¶ 7. We review summary judgments de novo applying the same methodology as the circuit court. Green-Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). The methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751. The interpretation of an insurance contract and whether coverage exists under a given contract are questions of law we review independently. Ledman v. State Farm Mut. Auto. Ins. Co., 230 Wis. 2d 56, 61, 601 N.W.2d 312 (Ct. App. 1999).

Discussion

¶ 8. The relevant language in Kriegel's policy from Pella states:

Insured means:
a. you;
b. your relatives if residents of your household;
c. persons under the age of 21 in your care or in the care of your resident relatives ....

The rights of insureds and injured parties are fixed at the time of the loss. Effert v. Heritage Mut. Ins. Co., 160 Wis. 2d 520, 527, 466 N.W.2d 660 (Ct. App. 1990). Because Jessica was sixteen at the time, the sole issue on appeal is whether Jessica was a person "in [Kriegel's] care" under subsection c on the night of the fire.

¶ 9. Pella claims Jessica could not be in Kriegel's care because "Kriegel was out of town and did not even know that [Jessica] was at her home." However, physical presence of the insured caregiver is not necessarily required for someone to be in the insured's care. To hold otherwise would mean that coverage could fluctuate by the hour, a patently unreasonable result.

¶ 10. Cierzan asserts that because "care" has several different dictionary definitions, the policy language "in your care" must be ambiguous and we must therefore resolve this ambiguity against Pella. See Garriguenc v. Love, 67 Wis. 2d 130, 135, 226 N.W.2d 414 (1975). We disagree. The mere fact that a word has more than one dictionary meaning does not necessarily make the word ambiguous if only one meaning applies in the context and comports with the parties' objectively reasonable expectations. Ruff v. Graziano, 220 Wis. 2d 513, 524, 583 N.W.2d 185 (Ct. App. 1998). We conclude that as used here, the meaning of "in your care" is unambiguous. It is an idiomatic phrase peculiar to itself and readily understood as a phrase by speakers and readers of the English language. See Henderson v. State Farm Fire & Cas. Co., 596 N.W.2d 190, 194 (Mich. 1999).

¶ 11. We note first that there must be some distinction between a person in the care of the insured— because this person becomes an insured under the policy as well — and an ordinary guest of the insured. An insured may provide shelter and often food or other amenities to a guest but does not necessarily care for the guest as an insurance policy with "in your care" language contemplates. Otherwise, we would always interpret guests as persons in the care of the insured and therefore extend insurance coverage to guests at any time for any reason. This would create a result well beyond what any reasonable insurer contemplates.

¶ 12. Nevertheless, the definition and application of "in your care" or "in the care of' are questions of first impression for us. We find guidance in Henderson, 596 N.W.2d at 190. In that case the Michigan Supreme Court considered the definition of the phrase "in the care of' as contained in a homeowner's insurance policy and its application to a girl living in the insured's home. The court enunciated eight "nonexclusive commonsense" factors that we accept as a logical starting point for our analysis. Id. at 195-96.

¶ 13. In considering whether a person is in the care of an insured, we deem the following relevant considerations: (1) whether the insured has a legal responsibility to care for the person; (2) whether the person has some form of dependency on the insured; (3) whether the insured has a supervisory or disciplinary responsibility for the person; (4) whether the insured is providing substantial and essential financial support for the person; (5) if the person is living with the insured, then whether the arrangement is temporary or permanent, the length of time the arrangement has existed, and whether and how long the arrangement is expected to continue; (6) the age of the person allegedly in the insured's care (because the younger the person is, the more likely it is he or she is in the insured's care); (7) the person's physical or mental health status (because a person with health problems is more likely to be in the insured's care); and (8) whether the person allegedly in the insured's care is gainfully employed (because someone so employed is less likely to be dependant on the insured). See id.

¶ 14. It is undisputed that Kriegel was not Jessica's legal guardian. Kriegel did not have the same duties as Jessica's parents or a legal guardian (factor one). Cierzan does not argue that Jessica was a dependent of Kriegel (factor two), and it is undisputed that Kriegel did not provide financial support for Jessica (factor four) and that Jessica lived with her parents, only occasionally spending the night at Kriegel's (factor five). Thus, four of the eight factors suggest that Jessica was not in Kriegel's care.

¶ 15. Kriegel did have rules that Jessica was expected to follow (factor three), and Cierzan claims this supervisory or disciplinary role suggests Jessica was in Kriegel's care. However, it is not uncommon for hosts to have rules for their guests, such as a rule prohibiting smoking or entrance into certain rooms of the home. Rules and discipline, absent more, are insufficient to make a guest a person in the insured's care.

¶ 16. While Jessica was only sixteen at the time of the accident and was therefore a minor (factor six), this is not sufficient to suggest Jessica was in Kriegel's care. A child who is sixteen typically has greater independence than a younger child. For example, it is not unusual for sixteen-year-olds to be left home alone when their guardians go away for a period of time. Many have a driver's license and thus potentially greater mobility. It is not unusual for a sixteen-year-old to have part-time employment. In contrast, a ten-year-old child, for example, cannot usually stay alone, certainly cannot drive, and generally cannot work beyond household chores. Here, Jessica's age and status as a minor are insufficient to demonstrate she was in Kriegel's care.

¶ 17. Although there is no showing whether Jessica had a part-time job (factor eight), she would likely still depend on others to support her. However, it is undisputed that Kriegel was not providing financial support for Jessica, so Jessica would still depend on someone other than Kriegel — namely, Jessica's parents. Finally, Jessica had no mental or physical health problems that would suggest she was in Kriegel's care (factor seven).

¶ 18. Beyond these eight factors, none of which adequately indicates Jessica was in Kriegel's care, we consider the relationship Jessica had with Kriegel. Jessica's testimony indicated she spent several consecutive nights at Kriegel's home during the 1997-1998 school year to give her brother a respite. Assuming without deciding that Jessica was in Kriegel's care at that time, such a relationship is insufficient to put Jessica in Kriegel's care on the night of the fire. The night of the fire, Jessica was not staying a period of consecutive nights at Kriegel's home. Instead, Jessica and Cierzan had gone to Kriegel's house for fun, not because Kriegel needed Jessica's assistance. Pella argues, and we agree, that a person is not perpetually "in the care of' an insured simply because the person may have been "in the care of' the insured at some previous time.

¶ 19. We also note that Kriegel was elderly, had heart problems, and had lost her sight to diabetes. Jessica did not spend time at Kriegel's home because Jessica needed care but because Kriegel did. While we acknowledge Kriegel set rules, there is nothing in the record to demonstrate that Kriegel was ever intended to be a substitute caregiver for Jessica. Rather, the facts indicate Jessica and her brothers, when spending any extended time at Kriegel's, served as live-in aides rather than live-in dependants or children in her care.

¶ 20. Considering the eight common-sense factors noted above, Jessica's relationship with Kriegel, her reason for going to Kriegel's home on the night of the fire, and her continued dependence on her parents, we are satisfied that the trial court was correct in its conclusion that Jessica was not in Kriegel's care on the night of the fire that injured Cierzan. Kriegel's insurance policy from Pella did not extend to cover Jessica's negligence.

By the Court. — Judgment affirmed.

       Jessica and her brothers are the children of Kriegel's son; thus, Kriegel's daughter should not be mistaken for Jessica's mother.

       We note that in arguing the summary judgment motion in the trial court, Cierzan suggested that Jessica also fit the definition of a resident relative. However, this issue is not before us on appeal and is therefore deemed abandoned. Reiman Assocs., Inc. v. R/A Adven, Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981).

       We interpret insurance contracts to meet the reasonable expectations of the insured. Danner v. Auto-Owners Ins., 2001 WI 90, ¶ 57, 245 Wis. 2d 49, 629 N.W.2d 159.

       Cierzan suggests several interpretations of a person "in your care" based on the dictionary definition of "care." These meanings include a person you are worrying about, are supporting, are guarding, are interested in, a person you love, or a person you are paying attention to. We assume Cierzan advances these definitions merely to illustrate the breadth of the term "care" rather than to contend that they comport with a reasonable insured's expectation of what the word signifies in the context of an insurance policy.

       When unambiguous policy language precludes coverage, no insurance contract should be rewritten by construction to bind an insurer to a risk it did not contemplate according to the policy. American States Ins. Co. v. Skrobis Painting & Decorating, 182-Wis. 2d 445, 451, 513 N.W.2d 695 (Ct. App. 1994).


author: SNYDER, J.

text:
    ECO, Incorporated, Petitioner-Appellant, v. City of Elkhorn, a Wisconsin municipal corporation, and Nancy B. Jacobson, City of Elkhorn, City Clerk, Respondents-Respondents.
    Court of Appeals

      No. 02-0216.

      Oral argument October 2, 2002. —
    Decided November 20, 2002.

    2002 WI App 302
    (Also reported in 655 N.W.2d 510.)

      On behalf of the petitioner-appellant, there were briefs by Linda S. Isnard and Terrance E. Nilles of von Briesen & Roper, S.C., Milwaukee. There were oral arguments by Linda S. Isnard.

    On behalf of the respondents-respondents, there was a brief by John M. Murphy of Leece & Phillips, S.C., Elkhorn. There were oral arguments by Ward D. Phillips.

    Before Brown, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. ECO, Incorporated appeals from a judgment and orders of the circuit court ruling that ECO's two requests for records to the City of Elkhorn, filed pursuant to the Freedom of Information Act (FOIA), were not open records requests pursuant to Wis. Stat. §§ 19.31 through 19.37 (1999-2000) and thus not actionable via a writ of mandamus. ECO argues that the two requests qualified as requests under Wisconsin open records law despite the mistaken reference to FOIA. We agree that the two requests required, at the very least, a response from the City. We therefore reverse the judgment and orders of the circuit court and remand for proceedings consistent with this opinion.

FACTS

¶ 2. ECO is a Wisconsin corporation with its principal office in Elkhorn, Wisconsin. On or about April 24, 1996, ECO's president and CEO, E. Christian Olsen, submitted a written request to the City for access to various public records; the request was denominated a request pursuant to the Freedom of Information Act and read:

Please provide us with the following information as allowed under F.O.I.A.:
All engineering plans, prints, as built drawings, engineering and inspection reports as related to:
1. Deere Road sanitary sewer from a point 100' west of STH 67 to a point 800' west of STH 67.
2. Deere Road water main from and to points as defined in (1) above.
3. Deere Road storm sewer as defined in (1) above.
4. Deere Road as defined in (1) above.
5. Sanitary sewer main as is crossing property commonly referred to as lot #'s 2 and 3 of the Deere Road Industrial Park.
6. Storm sewer within a 100' range of the northerly boundary of lot 1 of the Deere Road Industrial Park.
7. Any and all underground utilities owned, operated, or controlled by the City of Elkhorn within a 200' range of the boundaries of lot 2 and 3 of the Deere Road Industrial Park.

ECO was looking for these records because of severe water problems occurring on its property; ECO suspected the problems were caused by a disruption of either a man-made or natural underground flowage as a result of utility construction.

¶ 3. ECO eventually received a copy of a letter to the City from the City's engineers, Crispell-Snyder, Inc., and an "as-built" map. The letter, dated May 21, 1996, which specifically refers to ECO's request, indicates that Crispell-Snyder sent the City some of the requested items and informs the City that some of the requested records were not available at that office. However, ECO did not receive any formal response from the City either granting or denying its request. Olsen contacted the city clerk and asked if there were additional records but was told there were not any more. Thereafter,. ECO hired an engineering consultant, installed monitoring wells, did extensive excavations and brought in several tons of stone.

¶ 4. On or about September 22, 2000, ECO submitted a second written request to the City virtually identical to the April 24,1996 request; in addition, ECO requested the following:

Please provide us with the following information as allowed under FOIA:
1. Any and all documents in your possession, your agents [sic] possession including but not limited to contracted insurance carriers and underwriters, their agents, engineering firms, or other contracted professional service offices, and in the possession of related City of Elkhorn affiliates or operating affiliates, past or present city officials and/or employees, including but not limited to the Elkhorn Light and Water Commission, relating to properties in the Deere Road Industrial Park North of the centerline of Deere Road contained within the following description:
From a point 100' west of the intersection of Deere Road and Wisconsin State Highway 67 to a point 800' west of said intersection, and from the centerline of Deere Road in the City of Elkhorn to a point 400' north of the centerline of Deere Road, encompassing the period January 1977 thru [sic] August 2000, including but not limited to construction, land purchases, sales, transfers, zoning, zoning changes, taxation, memorandums, meeting minutes, or other form of written communication.
2. Your written explanation of the inability to provide any of the aforementioned items.

On October 16, 2000, the City, via legal counsel, responded to ECO's request:

Please be advised that we have received your request for information under the Freedom of Information Act. Your request has fallen upon my desk for a response. I have researched the Freedom of Information Act and your request. Please be advised that neither the State of Wisconsin nor the City of Elkhorn is subject to the Freedom of Information Act. The Act applies only to federal agencies and does not create a right of access to records held by any state or local government agency. As such, we will not he responding to your request.
Wisconsin and the City of Elkhorn maintain open records pursuant to state law. Please feel free to make a request under a legitimate avenue.

¶ 5. On or about October 19, 2000, ECO resubmitted its requests for records to the City; the requests were identical to the September 22, 2000 requests except this time ECO specifically referenced Wisconsin public records law instead of FOIA. On December 1, 2000, ECO received a response from Elkhorn City Clerk Nancy B. Jacobson that read in relevant part as follows:

I am writing in regards to your request for records. I apologize for the delay; however, ther [sic] pressing business, which included the election and preparation of the tax roll, diverted my time to these and other matters.
I am in the process of assembling your request and hope to complete it in a timely fashion. In order to fulfill your request of engineering plans, prints, as built drawings, engineering and inspection reports, I am requesting copies from the engineers. As soon as the engineers respond to my request, I will send you the cost of copies. Once, [sic] I receive a check from you covering those costs, I will instruct the engineers to make the copies.
There will also be a charge for time and copies made by City staff. Copies are 25 cents plus tax and staff time is $13.40 per hour.

ECO never received any further response. ECO contacted the Walworth county district attorney's office for assistance in getting a response from the City; on at least two occasions, a Walworth county assistant district attorney contacted the City and urged them to comply with ECO's October 19, 2000 request.

¶ 6. On March 8, 2001, ECO filed a petition for writ of mandamus seeking disclosure of the requested documents and related damages, fees and costs; the circuit court signed the alternative writ of mandamus that same day, compelling the City to provide ECO with the requested information or show cause why not.

¶ 7. On March 23, 2001, ECO received a letter from Jacobson indicating that documents responsive to ECO's records requests were available for inspection and requesting a prepayment of $1137.70 for the City's related labor and copying costs.

¶ 8. On March 26, 2001, the circuit court held a "show cause" hearing. The City conceded a lack of defense to the open records request and agreed to produce the requested documents upon payment by ECO for its labor and copying costs. Based upon this representation, the circuit court declined to make the writ of mandamus absolute. That same day, Olsen paid the City's $1137.70 bill and was provided access to a large box of documents.

¶ 9. Despite these disclosures, Olsen remained suspicious that additional records existed. Olsen went to the city engineer's office to inquire about the existence of additional engineering records regarding ECO's property. While at the office, Olsen spoke with a city employee, who showed him an entire drawer filled with files relating to the utilities on Deere Road near ECO's property. The city employee informed Olsen that the files contained all of the City's engineering records for ECO's property which would include as-built drawings, surveys, assessment notes, field notes and engineering drawings. The city employee informed Olsen that this file had been removed from the city engineer's office and sent to the city clerk's office to be copied in 1997, around the time ECO initiated its civil lawsuit against the City.

¶ 10. ECO's attorney then attempted to contact, via voice mail and a letter, the city attorney to inquire about the documents found in the city engineer's office. On March 29, 2001, the city attorney acknowledged receipt of these inquiries and declared that he was investigating the allegations but would not respond "until [he] ha[d] all of the facts before [him]." That same day, ECO sent a letter to the city attorney reiterating its demand for the records. Neither the City nor its attorney ever responded to this letter. Nor did the City produce any of the documents stored in the city engineer's office.

¶ 11. ECO therefore moved the circuit court to make the writ of mandamus absolute. ECO also requested that it be awarded actual, consequential and punitive damages and costs and attorney's fees associated with its attempts to secure a response from the City to the various open records requests.

¶ 12. After numerous hearings, the circuit court granted ECO's motion, in part. The circuit court held that the April 24,1996 request and September 22, 2000 requests were not "requests" pursuant to open records law because they were titled FOIA requests. Thus, according to the circuit court, the City was not required to adhere to the requirements of Wisconsin's open records law.

¶ 13. However, the circuit court found that the City violated Wis. Stat. § 19.35(4) in failing to timely respond to ECO's October 19, 2000 request. The circuit court also found that ECO's mandamus action was a "substantial factor" in the City's production of documents after the October 19, 2000 request and therefore ECO was entitled to $100 in damages and reasonable attorney's fees, but not punitive damages because neither the City nor Jacobson "acted arbitrarily or capriciously." The circuit court further held that ECO did not substantially prevail regarding the April 24, 1996 request or the September 22, 2000 request.

¶ 14. ECO submitted billing statements in support of its request for $14,351.42 in attorney's fees and actual costs of $861. The circuit court ultimately awarded ECO $11,951.42 in damages, attorney's fees and costs associated with the October 19, 2000 request. ECO appeals the circuit court's denial of its request for a writ of mandamus and associated damages, fees and costs relating to the April 24, 1996 and September 22, 2000 written requests.

DISCUSSION

¶ 15. Where a circuit court, determining a petition for writ of mandamus, has interpreted Wisconsin's open records law, see Wis. Stat. §§ 19.31 through 19.39, and has applied that law to undisputed facts, we review the circuit court's decision de novo. State ex rel. Milwaukee Police Ass'n v. Jones, 2000 WI App 146, ¶ 11, 237 Wis. 2d 840, 615 N.W.2d 190. We do so ever mindful of the legislature's declaration of policy that open records law must be construed "in every instance with a presumption of complete public access, consistent with the conduct of governmental business." Id. (citing § 19.31) (emphasis omitted).

¶ 16. Wisconsin Stat. § 19.31 sets forth this policy declaration regarding open records:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

The open records law serves one of the basic tenets of our democratic system by providing an opportunity for public oversight of the workings of government. Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428 (1996). This state recognizes a presumption of accessibility to public records, reflected in both the statutes and in our case law. Id.

¶ 17. Public policy and public interest favor the public's right to inspect public records. Hathaway v. Joint Sch. Dist. No. 1, City of Green Bay, 116 Wis. 2d 388, 392, 342 N.W.2d 682 (1984). Without an exception based upon statute, common law or an overriding public interest in nondisclosure, there is a presumption that the public has the right to inspect public records. Id. Public policy favors the right of inspection and it is only in the exceptional case that inspection should be denied. Id. at 396.

¶ 18. Where statutes, common law, or court decisions have not limited the public's right to examine records, "presumptively public records and documents must be open for inspection." Id. at 397 (citation omitted). "[P]ublic policy, and hence the public interest, favors the right of inspection of documents and public records." Id. (citation omitted). There exists the legislative presumption that "where a public record is involved, the denial of inspection is contrary to the public policy and the public interest." Id. (citation omitted). Thus, the general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law or unless there is an overriding public interest in keeping the public record confidential. Id.

¶ 19. Wisconsin Stat. § 19.31 must be broadly construed to favor disclosure. Hathaway, 116 Wis. 2d at 397. Exceptions must be recognized for what they are, instances in derogation of the general legislative intent, and must therefore be narrowly construed. Id. It would be contrary to general well-established principles of open records statutes to hold that, by implication only, any type of record can be held from public inspection. Id.

April 24, 1996 request

¶ 20. ECO's April 24, 1996 request read:
Please provide us with the following information as allowed under F.O.I.A.:
All engineering plans, prints, as built drawings, engineering and inspection reports as related to:
1. Deere Road sanitary sewer from a point 100' west of STH 67 to a point 800' west of STH 67.
2. Deere Road water main from and to points as defined in (1) above.
3. Deere Road storm sewer as defined in (1) above.
4. Deere Road as defined in (1) above.
5. Sanitary sewer main as is crossing property commonly referred to as lot #'s 2 and 3 of the Deere Road Industrial Park.
6. Storm sewer within a 100' range of the northerly boundary of lot 1 of the Deere Road Industrial Park.
7. Any and all underground utilities owned, operated, or controlled by the City of Elkhorn within a 200' range of the boundaries of lot 2 and 3 of the Deere Road Industrial Park.

ECO argues that this request qualified as a request within the meaning of open records law despite the mistaken reference to FOIA. ECO argues that on its face, this request was subject to Wis. Stat. §§ 19.31 through 19.37 and the City should have either fulfilled the request or notified ECO in writing of any determination to deny the request.

¶ 21. The City concedes that the April 24, 1996 request met the requirements of an open records request and that the body of the letter adequately describes open records. However, the City argues that because the request was filed pursuant to FOIA and the City is not subject to said Act, it did not have a duty to respond. Such assertions are contrary to the strong public policies behind open records law and the language of open records statutes. We conclúde that because the letter clearly describes open records and the letter had all the earmarkings of an open records request, the April 24, 1996 letter was in fact an open records request and triggered, at a minimum, a duty to respond to the request.

¶ 22. Wisconsin Stat. § 19.35(1) addresses the public's right to inspection and states, in pertinent part:

(a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.
(h) A request under pars, (a) to (f) is deemed sufficient if it reasonably describes the requested record or the information requested. However, a request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request. A request may be made orally, but a request must be in writing before an action to enforce the request is commenced under s. 19.37. (Emphasis added.)

¶ 23. None of these statutes requires a request to contain any "magic words" nor do they prohibit the use of any words. While "request" is not defined anywhere in open records law, a request is deemed sufficient if "it reasonably describes the requested record or the information requested." Wis. Stat. § 19.35(1)(h). Here, the City concedes as much. We conclude that the use of FOIA does not render it a nonrequest. Because a request must only reasonably describe the requested record or information requested, because nothing in open records law prohibits the use of any certain words, because the City concedes that the letter meets the requirements of an open records request and because the legislature's well-established public policy presumes accessibility to public records and mandates that open records law be liberally construed to favor disclosure, we conclude that the April 24, 1996 letter was, in fact, an adequate open records request.

¶ 24. Open records law mandates action once a request is received; Wis. Stat. § 19.35(4) addresses time for compliance and states, in relevant part:

(a) Each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefor. (Emphasis added.)

Thus, under § 19.35(4)(a), receipt of an open records request triggers either a duty to respond to the request or a duty to produce the requested records. Here, the City neither responded to the April 24,1996 request nor produced the requested documents. It is incumbent upon the custodian of the public record who refused the demand of inspection to "state specifically the reasons for this refusal." Hathaway, 116 Wis. 2d at 396 (citation omitted). A custodian's denial of access to a public record must be accompanied by a statement of the specific public policy reasons for the refusal. Chvala v. Bubolz, 204 Wis. 2d 82, 86-87, 552 N.W.2d 892 (Ct. App. 1996). The City did not provide any response whatsoever and therefore did not comply with open records law.

September 22, 2000 request

¶ 25. ECO submitted a second request to the City that was virtually identical to the April 24, 1996 request; in addition, ECO submitted the following:

Please provide us with the following information as allowed under FOIA:
1. Any and all documents in your possession, your agents [sic] possession including but not limited to contracted insurance carriers and underwriters, their agents, engineering firms, or other contracted professional service offices, and in the possession of related City of Elkhorn affiliates or operating affiliates, past or present city officials and/or employees, including hut not limited to the Elkhorn Light and Water Commission, relating to properties in the Deere Road Industrial Park North of the centerline of Deere Road contained within the following description:
From a point 100' west of the intersection of Deere Road and Wisconsin State Highway 67 to a point 800' west of said intersection, and from the centerline of Deere Road in the City of Elkhorn to a point 400' north of the centerline of Deere Road, encompassing the period January 1977 thru [sic] August 2000, including but not limited to construction, land purchases, sales, transfers, zoning, zoning changes, taxation, memorandums, meeting minutes, or other form of written communication.
2. Your written explanation of the inability to provide any of the aforementioned items.

However, this time; the City responded to the request:

Please be advised that we have received your request for information under the Freedom of Information Act. Your request has fallen upon my desk for a response. I have researched the Freedom of Information Act and your request. Please be advised that neither the State of Wisconsin nor the City of Elkhorn is subject to the Freedom of Information Act. The Act applies only to federal agencies and does not create a right of access to records held by any state or local government agency. As such, we will not be responding to your request.
Wisconsin and the City of Elkhorn maintain open records pursuant to state law. Please feel free to make a request under a legitimate avenue.

Again, the City argues that it did not have a duty to produce the records in question because it was not subject to FOIA. ECO maintains that the letter qualified as a request under open records law despite the FOIA label. We agree with ECO.

¶ 26. Again, nothing in the open records law prohibits the use of any words or requires a request to contain any "magic words"; a request is deemed sufficient so long as "it reasonably describes the requested record or the information requested." Wis. Stat. § 19.35(l)(h). We must conclude that the September 22, 2000 letter was an adequate open records request which triggered the City's duties upon open records law.

¶ 27. In contrast to the April 24, 1996 request, here the City responded with a denial based upon the inapplicability of FOIA. We conclude that this denial was erroneous. Public records shall generally be presumed open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, or unless there is an overriding public interest in keeping the public record confidential. Hathaway, 116 Wis. 2d at 397.

¶ 28. We know of no statutory or common law exception, nor has the City cited to any, that allows a denial of access to public records based upon extraneous information in the request or a mislabeling of the request. Moreover, the City has not argued an overriding public interest in keeping the public records confidential. Exceptions to public access must be recognized as instances in derogation of the general legislative intent and must therefore be narrowly construed. Id. It would be contrary to general well-established principles of open records statutes to hold that, by implication only, any type of record can be held from public inspection. Id. The September 22, 2000 letter was a proper open records request and the City has not cited any accepted exception for its refusal to produce the records.

¶ 29. Wisconsin Stat. § 19.37 addresses enforcement and penalties and states, in relevant part:

(1) Mandamus. If an authority withholds a record or a part of a record or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may pursue either, or both, of the alternatives under pars, (a) and (b).
(a) The requester may bring an action for mandamus asking a court to order release of the record. The court may permit the parties or their attorneys to have access to the requested record under restrictions or protective orders as the court deems appropriate.
(2) Costs, pees and damages, (a) Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole ór in substantial part in any action filed under sub. (1) relating to access to a record or part of a record under s. 19.35(l)(a) .... Costs and fees shall be paid by the authority affected or the unit of government of which it is a part, or by the unit of government by which the legal custodian under s. 19.33 is employed and may not become a personal liability of any public official.
(b) In any action filed under sub. (1) relating to access to a record or part of a record under s. 19.35(l)(am), if the court finds that the authority acted in a wilful or intentional manner, the court shall award the individual actual damages sustained by the individual as a consequence of the failure.
(3) PuNitive damages. If a court finds that an authority or legal custodian under s. 19.33 has arbitrarily and capriciously denied or delayed response to a request or charged excessive fees, the court may award punitive damages to the requester.
(4) Penalty. Any authority which or legal custodian under s. 19.33 who arbitrarily and capriciously denies or delays response to a request or charges excessive fees may be required to forfeit not more than $1,000. Forfeitures under this section shall be enforced by action on behalf of the state by the attorney general or by the district attorney of any county where a violation occurs. In actions brought by the attorney general, the court shall award any forfeiture recovered together with reasonable costs to the state; and in actions brought by the district attorney, the court shall award any forfeiture recovered together with reasonable costs to the county. (Emphasis added.)

¶ 30. Because the City failed to respond to ECO's request and thus failed to comply with the requirements of Wis. Stat. § 19.35(4)(a), ECO is entitled to costs, fees and damages pursuant to Wis. Stat. § 19.37(2). The circuit court took the issue of damages under advisement pending a decision on whether the April 24, 1996 and September 22, 2000 letters constituted open records requests. Once the circuit court determined that the two letters were not open records requests, the issue of damages became moot and was not addressed. Because we conclude that both the April 24, 1996 letter and September 22, 2000 letter were, in fact, open records requests which were wrongfully denied, damages must be addressed. We therefore remand this matter to the circuit court to address the issue of damages.

CONCLUSION

¶ 31. Both the April 22, 1996 letter and September 22, 2000 letter were open records requests and the City failed in its duty under open records law to produce the records in question. The circuit court erred in ruling, otherwise and in refusing to consider damages. We therefore reverse the judgment and orders and remand this matter to the circuit court for proceedings consistent with this opinion.

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

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

       In its appeal, ECO provides few, if any, citations to the record to corroborate the facts set out in its briefs; it instead cites to its own appendix. Such failure is a violation of Wis. Stat. Rule 809.19(l)(d) of the rules of appellate procedure, which requires parties to set out facts "relevant to the issues presented for review, with appropriate references to the record." (Emphasis added.) An appellate court is improperly burdened where briefs fail to cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957).

       In 1997, ECO commenced litigation against the City for damages due to the City's alleged failure to maintain and protect from damage certain drain tiles which carried water across and beneath ECO's property. In early September 2000, in response to discovery requests, the City produced several documents related to the construction of a sanitary sewer along Deere Road and the maintenance of drain tiles draining ECO's property. These documents, dated in 1980, existed at the time of ECO's 1996 records request and had not been previously produced. ECO's counsel submitted an offer of proof that it expended approximately $80,000 in costs in investigating the source of the water problems.

       The City spends much time and energy arguing that FOIA does not apply to it, relying on State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 538 N.W.2d 608 (Ct. App. 1995), for support. This is a nonstarter. No one argues that the City is subject to FOIA and therefore compelled to produce the documents pursuant to this law. Moreover, the City's reliance on Hill is misplaced. The City claims that Hill holds that FOIA only applies to federal agencies and because the City is not a federal agency, it cannot be compelled to respond to a FOIA request. In Hill, a prisoner filed an open records request, was denied and then brought a mandamus action. Id. at 423-24. Among Hill's theories of relief was that FOIA entitled him to the records. Id. at 428 n.6. We rejected this theory. Id. But again, ECO is not claiming in this mandamus action that it was entitled to the records under FOIA. ECO argues that it is entitled to the admittedly open records despite the FOIA label, not because of it.


author: ANDERSON, J.

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

      No. 02-0275-CR.

      Submitted on briefs September 26, 2002.—

      Decided November 20, 2002.

    2002 WI App 304
    (Also reported in 657 N.W.2d 89.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Alex Flynn of Alex Flynn & Assoc., S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. Todd W. Timblin appeals from a judgment of the circuit court convicting him of six counts of felony theft contrary to Wis. Stat. § 943.20(1)(d) (1999-2000). Timblin argues that he should be permitted to withdraw his guilty pleas because he was not able to make a knowing waiver of his rights since the information was defective as to counts 15 and 18. In the alternative, he argues that because the court failed to inform him of the agency element required for counts 15 and 18, he should be permitted to withdraw his pleas. We disagree with both of Timblin's arguments. The circuit court's judgment is affirmed.

¶ 2. On July 24, 2000, a twenty-one count criminal complaint was filed, claiming that Timblin had committed theft by deception in violation of Wis. Stat. §§ 943.20(1)(d) and (3)(c) and 939.50(3)(c). The first eleven counts were premised on acts occurring before January 1, 2000, thus alleging violations of the 1997-98 statutes. The rest of the counts were premised on acts occurring in 2000; these counts alleged violations of the 1999-2000 statutes and were subject to determinate sentencing under the truth-in-sentencing regime.

¶ 3. A preliminary hearing was held on October 9, 2000, and November 3, 2000. At the hearing, several witnesses testified providing sufficient evidence for the trial court to find probable cause. The following represents the evidence testified to at the preliminary hearing. Timblin befriended David Lichtensteiger approximately three years before approaching Lichtensteiger with an "investment opportunity" in March or April 1999. Timblin said that the state of Florida was ready to accept applications for seven riverboat gambling licenses. He said he planned to file three applications for the licenses and expected some or all of these to be granted. Timblin told Lichtensteiger that each application would cost $500,000 and that anyone who invested in the licenses would get a full refund of his or her money if the applications were unsuccessful. Timblin explained that if the three licenses were granted, he would sell them to the Las Vegas-based "Mandelay Bay Group" with an anticipated profit of $37 million dollars.

¶ 4. Lichtensteiger spoke to several other people in his social circle about Timblin's investment plan, including Mark Matenaer, Bob Brodie, Gerry Mueller, William Russell, Wendy and Chad Graff, and Douglas and Kathy Graff. All of these people eventually became "investors" in Timblin's "investment opportunity."

¶ 5. Sometime in the fall of 1999, Timblin informed Lichtensteiger that he had been awarded the three licenses he had applied for. Timblin then gave Lichtensteiger reasons as to why he had to delay giving the investors a share of the purported profits. First, he said there was a sixty-day delay attributable to a protest filed by gambling opponents. Later, he said that the licenses were issued only once a year and that the next issuance date was April 4, 2000.

¶ 6. During the months spent waiting for the purported licenses to be issued, Timblin successfully got the investors to turn over more money to him. In August 1999, Timblin falsely claimed that he had purchased a gambling boat and convinced the investors to give him the extra money he needed to pay for it. In October 1999, Timblin informed Lichtensteiger that another unnamed and unrelated investor was seeking a judgment against Timblin for $250,000; Timblin then explained that if that investor did not get paid, the licenses would be lost because an applicant could not have judgments against him. Lichtensteiger spoke to the other investors about this problem, and they came up with $225,000 to help Timblin avoid judgment.

¶ 7. In January 2000, Timblin told Lichtensteiger he needed $50,000 to live on for awhile. Lichtensteiger obtained a personal check for that amount — payable to Todd Timblin — from Chad and Wendy Graff, signed by Wendy. Lichtensteiger delivered the Graffs' check to Timblin on January 14, 2000. The criminal complaint stated that this check was intended to "alleviate defendant's financial troubles so that the deal for the riverboat gaming licenses would not fall through." This last transaction was the basis of count 15 of the information.

¶ 8. In January or February, Timblin told Licht-ensteiger and Matenaer — who between them passed Timblin's information to the rest of the investors — that $354,000 had to be sent to someone named Bill Rossi in Florida or there was "a chance we could lose the whole investment." Included in the money the investors raised for Timblin at this time was a personal check for $50,000 — payable to Todd Timblin — signed by Wendy Graff from the account of Graff Masonry, Inc. Lichten-steiger delivered it to Timblin. The criminal complaint stated that this money was paid "for the purpose of making payments to individuals to facilitate issuance of the riverboat gamin [sic] licenses." This transaction was the basis of count 18 of the information.

¶ 9. On April 4, 2000, Lichtensteiger and the other investors learned that "we weren't going to receive the licenses after everything was all done and that. And we were told we'd receive our money back but it would be 90 days."

¶ 10. In May 2000, Timblin informed Lichten-steiger and Matenaer that he felt pressured to file for bankruptcy. He explained to them that such an action would necessarily affect their investment because, he said, when the investment money finally came back from Florida, "[I]t will no doubt have to go through bankruptcy court. And it's going to mean that you guys are going to lose out on a good chunk of your investment." Timblin said that their investment money was due back from Florida on or around June 19. He explained that to avoid filing for bankruptcy before collecting the money, he would "need about $20,000 to get caught up on back payments and for some living expenses." The investors came up with just under $20,000 right before Memorial Day.

¶ 11. In July, Timblin informed Matenaer of another round of difficulties with recouping the investment. Timblin said that he had gone to the airport to meet a man, "Anthony," who was to deliver the cashier's check from the state of Florida for $1.8 million, which represented the money put in by the investors and by Timblin himself. Timblin said that Anthony informed him that he would not hand over the check unless Timblin gave him $100,000 in cash. Timblin eventually asked the investors to come up with the money that Anthony demanded. After Matenaer told Timblin that the money was not available, Timblin said that Anthony would take $50,000 now and $50,000 later, or he would even take only $25,000 now and the rest later. The investors did not come up with the money and they never got their investment money back.

¶ 12. Matenaer suggested to Timblin that they call the FBI in to deal with Anthony. The next morning, Timblin met with Matenaer and a couple of the other investors and said that "Anthony says that if you guys get the [FBI] involved, houses will burn to the ground with people in them. Every last one of you."

¶ 13. At some point, the Washington County Sheriffs Department became involved. Investigating Detective Michael Rindt interviewed Timblin regarding his role in what was now an alleged theft of over $1 million dollars from various investors. At that time, Timblin admitted obtaining approximately $700,000 to $800,000 from various individuals, including Lichten-steiger, Matenaer, and the Graffs. Timblin told Rindt that he intended to invest the money on their behalf but denied any knowledge about a scheme to secure riverboat gambling licenses from the proceedings. Timblin acknowledged that he had deposited the checks he was given into his personal checking account. He said that all of this money was used to cover Las Vegas gambling debts.

¶ 14. Subsequently, an updated information was filed on December 13, 2000. The information charged the original twenty-one counts and three additional counts. Two additional theft by deception counts were added, as well as a charge of felony intimidation of a victim in violation of Wis. Stat. §§ 940.43(3) and 939.50(3)(d).

¶ 15. On June 13, 2001, Timblin pled guilty to six counts of theft by deception — three pre-truth-in-sentencing and three post-truth-in-sentencing. The remaining counts were to be dismissed and read in for purposes of sentencing. The court accepted Timblin's pleas.

¶ 16. Timblin agreed that the court could use the facts stated in the criminal complaint and the preliminary hearing as a factual basis for his pleas. The court explained the six elements of the crime of theft by deception to Timblin and offered to let him review the corresponding Wisconsin Jury Instruction, an offer that Timblin declined.

¶ 17. A sentencing hearing was held on August 8, 2001. At that time, upon the representation of Timblin's lawyer that serious efforts were being made to provide restitution to the victims, the court agreed to postpone sentencing until September 14, 2001. Timblin did not provide restitution to the victims by the rescheduled sentencing hearing. Two days before sentencing, Timblin, represented by a new attorney, moved to withdraw his guilty pleas. Timblin argued that the complaint and information were defective because the two counts involving the Graffs, counts 15 and 18 of the information, did not allege an agency relationship. He further concluded that even if the complaint and information were not defective, the plea colloquy was. He claimed that because the trial court did not advise him that the existence of an agency relationship was an element of the crime, he was entitled to withdraw his pleas. Specifically, his motion argued that he was not able to make a knowing waiver of his rights "[d]ue to the defects in the criminal complaint and information, the plea colloquy with the defendant, misstated the elements of the crimes contained in Counts 15 and 18 of the information ...."

¶ 18. The court denied Timblin's plea withdrawal motion at the sentencing hearing and sentenced him to eight, nine and nine years on the three pre-truth-in-sentencing counts, to be served concurrent to any other sentence. On the three post-truth-in-sentencing counts, Timblin was sentenced to three identical consecutive sentences of fifteen years each — the first five years to be served in confinement, to be followed by a ten-year term of extended supervision. In total, fifteen years in confinement followed by thirty years of extended supervision. Timblin appeals.

¶ 19. The decision to accept conviction via a voluntary plea is a grave and solemn act and should not be lightly treated. State v. Damaske, 212 Wis. 2d 169, 191, 567 N.W.2d 905 (Ct. App. 1997). Nevertheless, prior to sentencing, a motion to withdraw a guilty plea should be freely allowed if the defendant presents a "fair and just reason" to justify the withdrawal. State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995). "But 'freely' does not mean automatically. A fair and just reason is some 'adequate reason for defendant's change of heart. . . other than the desire to have a trial.'" Id. at 861-62 (citation omitted).

¶ 20. While the "fair and just" reason test is a liberal test, the defendant must still demonstrate a "genuine misunderstanding of the plea's consequences" or "haste and confusion in entering the plea" or "coercion on the part of trial counsel." State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). It is within the trial court's discretion to determine whether a defendant's reason adequately explains his or her change of heart. State v. Kivioja, 225 Wis. 2d 271, 284, 592 N.W.2d 220 (1999). We review a trial court's discretionary decision under the erroneous exercise of discretion standard. Thus, we will uphold a discretionary decision if the circuit court reached a reasonable conclusion based on the proper legal standard and a logical interpretation of the facts. Id.

¶ 21. On appeal, Timblin claims that the trial court erred in not allowing him to withdraw his pleas. He asserts that there was not a factual basis for his pleas because the complaint and information were required to establish an agency relationship given that the Graffs learned of Timblin's investment plan through Lichtensteiger and gave their money to Licht-ensteiger to deliver to Timblin. He claims that since he was not made aware that the State would have to prove that Lichtensteiger was the Graffs' agent, his pleas were not knowing.

¶ 22. He first contends that Wis JI — Criminal 1453, the jury instruction for Wis. Stat. § 943.20(1)(d), demonstrates his proposition that "agency is one of the elements of the crime of theft by fraud when the accused obtains another person's property through an intermediary." Timblin then quotes only the following portion of the instruction:

(The owner of the property involved in this case is (corporation) (other) and the State claims that the representation was made to (agent of owner of property). If you find beyond a reasonable doubt that the defendant made a false representation to an (officer) (employee) (agent) of (name owner of property), then you should also find that the defendant made a false representation to the owner of the property.)

This part of the jury instruction addresses cases where agency is the basis for the claim of theft by fraud — it does not shed light on when agency must be the basis for the claim of theft by fraud, as Timblin would have us believe.

¶ 23. Timblin also contends that the requirement to prove agency in "this kind of theft by fraud" has been recognized in State v. Kennedy, 105 Wis. 2d 625, 314 N.W.2d 884 (Ct. App. 1981). Kennedy held that where the defendant defrauds a principal by deceiving the principal's agent, the existence of the agency relationship is itself an element of the offense. See id. at 632-33.

¶ 24. Kennedy addressed the fraudulent billing procedures of a psychiatrist. Id. at 628. Kennedy submitted claim reports to Surgical Care Blue Shield, the fiscal agent in Milwaukee county for Wisconsin's medical assistance program. Id. The State filed suit after an investigation indicated that Kennedy submitted eighty-seven fraudulent claims for "individual psychiatric examinations." Id. The trial court instructed the jury that it could find Kennedy guilty of theft by fraud if it found, inter alia, that Kennedy had deceived Surgical Care Blue Shield and defrauded the State of Wisconsin. Id. at 632. Kennedy argued that such an instruction could not be given unless the jury found that Surgical Care Blue Shield was an agent of Wisconsin. Id. We agreed but concluded that the instruction as given required the jury to find an agency relationship in order to find Kennedy guilty. Id. at 632-33. We also held that the information did not fail to charge theft by fraud because it identified Surgical Care Blue Shield as the agent of the State of Wisconsin. Id. at 632. The jury found Kennedy guilty of theft by fraud. Id. at 629.

¶ 25. Kennedy is distinguishable from the case at bar. There we agreed with the defendant that the jury had to find an agency relationship between Surgical Care Blue Shield and the State of Wisconsin in order to find the defendant guilty. Timblin argues that under Kennedy, Lichtensteiger was the Graffs' agent because the Graffs learned of Timblin's plan through Lichten-steiger and gave their money to Lichtensteiger to deliver to Timblin. We believe that more is required to make agency an element in a theft by fraud case.

¶ 26. We do not view Lichtensteiger as having functioned as the Graffs' agent. True, he delivered the Graffs' money to Timblin, but this does not suffice to make him the Graffs' agent. The State of Wisconsin in Kennedy turned over the management of its money, assumedly via contract, to Surgical Care Blue Shield. Unlike the State of Wisconsin, the Graffs self-managed their money. They maintained control over decisions on when to turn over their money and maintained control over decisions to whom to give their money.

¶ 27. Moreover, an agency relationship exists only when there has been a manifestation to establish that agency. Kohl v. F. J. A. Christiansen Roofing Co., 95 Wis. 2d 27, 33-34, 289 N.W.2d 329 (Ct. App. 1980). Whether an actual principal-agent relationship exists usually turns on facts concerning the understanding between the alleged principal and agent. Johnson v. Minn. Mut. Life Ins. Co., 151 Wis. 2d 741, 748, 445 N.W.2d 736 (Ct. App. 1989). The relationship exists "only if there has been a manifestation by the principal to the agent that the agent may act on his account, and consent by the agent so to act." Id. (quoting Restatement (Second) of Agency § 15 (1957)).

¶ 28. The Restatement (Second) of Agency further clarifies the agency relationship:

An agent or apparent agent holds a power to alter the legal relations between the principal and third persons and between the principal and himself.

Restatement (Second) op Agency § 12 (1958). The commentary elaborates:

Power. The phrase "power of an agent" denotes the ability of an agent or apparent agent to affect the legal relations of the principal in matters connected with the agency or apparent agency. The exercise of this power may result in binding the principal to a third person in contract; in divesting the principal of his interests in a thing, as where the agent sells the principal's goods; in the acquisition of new interests for the principal, as where the agent buys goods for the principal; or in subjecting the principal to a tort liability ....

Id., cmt. a.

¶ 29. There was no manifestation by the Graffs that Lichtensteiger was to act as their agent. Applying the language of the Restatement, the facts do not demonstrate that Lichtensteiger "[held] a power to alter the legal relations between" the Graffs and any third party, including Timblin. Furthermore, Lichtensteiger did not bind the Graffs to Timblin in contract, did not divest the Graffs of their money or acquire new interests on their behalf, and did not subject them to tort liability.

¶ 30. The Graffs divested themselves of their own money — Lichtensteiger did not. Lichtensteiger shared with the Graffs the news about Timblin's "investment opportunity." He repeated statements made by Timblin to the Graffs, and he delivered checks — signed by the Graffs, drawn from their own account and paid to the order of Timblin — to Timblin. Lichtensteiger was no more than a conduit between the Graffs and Timblin. Agency might arguably be found if the Graffs had given Lichtensteiger cash or access to their checking account and asked him to make investment decisions on their behalf — but they did not. If that had happened, Kennedy might well control. However, that did not happen and there was no agency relationship.

¶ 31. Despite the fact that this is not an agency relationship, Timblin may dispute his responsibility for the Graffs' losses based on his claim that he did not speak directly to the Graffs. This argument is unpersuasive. Theft by deception is a species of fraud, which is addressed by civil tort law as well as criminal law. The Restatement (Second) of Torts provides for civil liability for misrepresentation where it is foreseeable and intended that a fraudulent misrepresentation will be repeated to third parties and acted upon by them:

The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.

Restatement (Second) of Torts § 533 (1977); see also Chitwood v. A.O. Smith Harvestore Prods., Inc., 170 Wis. 2d 622, 635 n.3, 489 N.W.2d 697 (Ct. App. 1992).

¶ 32. Thus, under the facts of this case, the trial court did not err in denying Timblin's motion to withdraw his guilty pleas. There was enough evidence to establish probable cause that the Graffs relied on the misrepresentations Timblin made to Lichtensteiger— representations that Timblin either intended or had reason to expect would be repeated to other existing or potential investors, including the Graffs. For example, by January 2000, when Wendy Graff signed the check on which count 15 was based, Timblin had already received money from various investors through Licht-ensteiger and knew that there was a growing number of third-party investors. Additionally, it seems probable that Timblin intended Lichtensteiger to pass on the February 2000 statement he made, claiming that the funds supplied by all the investors would be in jeopardy if more money were not forthcoming.

¶ 33. We recognize that had Timblin decided to take this case to trial, he would have been entitled to put the State to its proof with respect to whether he should be held criminally liable for taking the Graffs' money. However, Timblin decided to plead guilty and he has not provided a "fair and just" reason to upset the trial court's acceptance of his pleas. He has not demonstrated a "genuine misunderstanding of the pleats'] consequences" or "haste and confusion in entering the plea[s]" or "coercion on the part of trial counsel"; therefore, we will not upset the discretionary decision of the trial court to deny Timblin's motion to withdraw his guilty pleas. See Shimek, 230 Wis. 2d at 739.

By the Court. — Judgment affirmed.

       Wisconsin Stat. § 943.20 provides in relevant part:
      (1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):
      (d) Obtains title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. "False representation" includes a promise made with intent not to perform it if it is a part of a false and fraudulent scheme.
      (3) Penalties. Whoever violates sub. (1):
      (c) If the value of the property exceeds $2,500, is guilty of a Class C felony.
      All references to the Wisconsin Statutes are to the 1999-2000 statutes unless otherwise noted.

       We note that the chronology we summarize is mostly based on Lichtensteiger's testimony at the preliminary hearing, which varies somewhat from another "investor's" testimony. This is not significant because in substance the testimonies support one another.

       The "Graffs" who are referred to from here on are Wendy and Chad Graff.

       The directions, which immediately precede the part of the jury instruction Timblin relies upon, state: ["GIVE FOLLOWING WHEN REPRESENTATION WAS GIVEN TO OWNER'S AGENT."]

       We have previously consulted the civil fraud standards of the Restatement as an aid to interpreting the criminal fraud statutes. See State v. Mueller, 201 Wis. 2d 121, 138-39, 549 N.W.2d 455 (Ct. App. 1996).