text:
    Michael Wendt and Robin Wendt, Plaintiffs-Appellants, v. John H. Blazek and Sandra M. Blazek, Defendants-Respondents, John C. Brown, Rosemary S. Brown, Aaron M. Brown, Tina L. Landers, Donald E. Holderfield, Jr., Kathleen E. Hermes, Michael M. Bozich, Karen C. Bozich, Julianne R. Dombeck, David P. Austin, Karen R. Austin, Terry J. Ellsworth, Joanne E. Ellsworth, Jeffrey C. Jaeckle, Mary E. Ehlert, Carol Stelter, Theodore D. Richards, Cynthia J. Richards, Louise Beaumont, Jane Doe and John Doe, Defendants.
    Court of Appeals

      No. 00-2448-FT.

      Submitted on briefs January 22, 2001.

    Decided March 14, 2001.

    2001 WI App 91
    (Also reported in 626 N.W.2d 78.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of William A. Swendson of Swendson /Menting Law Ltd. of Oconomowoc.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Gordon P. Giampietro of Michael, Best & Friedrich, L.L.P. of Milwaukee.
    Before Brown, P. J., Nettesheim and Anderson, JJ.

      Petition to review denied.

   NETTESHEIM, J.

¶1. Michael and Robin Wendt, the owners of riparian property, appeal from a summary judgment declaring that a lake access easement owned by John H. and Sandra M. Blazek, the owners of nonriparian property, includes the right to maintain and use a pier at the water's edge of the easement. We affirm the trial court's summary judgment ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2. At one time, the Jaeckle family owned and operated a resort on Okauchee Lake in Waukesha county. The family also owned nonriparian lots that adjoined the resort property. In 1971, the Jaeekles sold the resort property to Dennis Winn. The conveyance reserved to the Jaeekles and their heirs and assigns "an easement for the purpose of access to Okauchee Lake on and over a strip of land 15 feet in width lying parallel to and immediately East of the West line of the above-described real estate." In 1993, the Jaeckles sold one of the nonriparian lots to the Blazeks. The easement was included in this conveyance. The Jaeckles also sold two other nonriparian lots to other parties. The easement was also included in these conveyances.

¶ 3. According to the affidavit of William Jaeckle, a son of one of the original owners, the Jaeckle family installed a private pier on the resort property in 1962 for the use of the family. This pier was located at the point where the present easement meets the water's edge. After the sale to Winn, the Jaeckle family used this easement for purposes of access to the pier and Okauchee Lake. William Jaeckle purchased his parents' property in 1989 and he continued to use and maintain the pier until he sold the property to a third party in 1995.

¶ 4. The Wendts purchased the former Winn property in 1996. In 1999, they commenced this declaratory action against the Blazeks and other nonriparian property owners whose conveyances included the easement. The Wendts' complaint sought a judicial declaration that the easement did not include a right to use and maintain the pier. The Wendts moved for partial summary judgment. Relying principally on Ellingsworth v. Swiggum, 195 Wis. 2d 142, 536 N.W.2d 112 (Ct. App. 1995), the Wendts argued that the right of access granted by the easement was separate and distinct from the riparian right to place a pier. Since the easement did not confer the right to place a pier, they contended that the Blazeks' use of the pier was not authorized by the easement. The Wendts also relied on Ellingsworth for their further argument that Wis. Stat. § 30.131 (1999-2000) did not confer any pier rights to the Blazeks.

¶ 5. The Blazeks responded on a number of grounds. First, they contended that the Wendts' action was barred on grounds of issue preclusion based upon a complaint which the Wendts had previously filed with the Department of Natural Resources (DNR) alleging that the pier was an unlawful structure pursuant to Wis. Stat. § 30.131. Second, they argued that the pier was lawful pursuant to § 30.131. Third, they asserted that the Wendts' action was barred by principles of laches and estoppel.

¶ 6. In a bench decision, the trial court rejected the Blazeks' issue preclusion defense. However, in a later written decision, the court ruled in favor of the Blazeks on the merits. The court acknowledged that while the easement did not expressly confer a right to use and maintain the pier, it also did not expressly bar such use and maintenance. More importantly, the court held that since the pier was not an unlawful structure under WlS. Stat. § 30.131, the Blazeks were entitled to use and maintain it under the easement. Accordingly, the court denied the Wendts' motion for partial summary judgment and instead entered partial summary judgment in favor of the Blazeks. See WlS. Stat. § 802.08(6) ("If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor.").

¶ 7. The Wendts appeal. We will discuss the relevant portions of the trial court's decision in greater detail as we discuss the appellate issues.

DISCUSSION

1. Standard of Review, Riparian Law and Easement Law

¶ 8. We review a trial court's summary judgment ruling de novo, applying the same standards as the trial court. We will not repeat the often stated and well-accepted summary judgment methodology. Suffice it to say that we look to see if there are any material issues of fact which entitle the opposing party to a trial. As the movant, the Wendts were obligated to establish a prima facie case for the declaratory relief they sought. Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶ 5, 234 Wis. 2d 335, 610 N.W.2d 129. And, as already noted, Wis. Stat. § 802.08(6) allows a court to award summary judgment to the opposing party even if that party has not sought summary judgment.

¶ 9. A riparian owner is one who holds title to land abutting a body of water. Stoesser v. Shore Drive P'ship, 172 Wis. 2d 660, 665, 494 N.W.2d 204 (1993). A riparian owner has certain rights based upon title to the ownership of such lands. Id. at 666. These rights are not common to the citizens at large, but exist as natural and inherent incidents of the ownership of riparian land. Id.

¶ 10. An easement is a permanent interest in another's land, with a right to enjoy it fully and without obstruction. Krepel v. Darnell, 165 Wis. 2d 235, 244, 477 N.W.2d 333 (Ct. App. 1991). An easement consists of two distinct property interests—the dominant, which enjoys the privileges granted by the easement, and the servient, which permits the exercise of those privileges. Id.

2. Ellingsworth v. Swiggum and Wis. Stat. §30.131

¶ 11. In Ellingsworth, the court of appeals addressed the relationship between a nonriparian owner's access easement and Wis. Stat. § 30.131, governing wharves and piers maintained under such an easement. We set out the statute in the accompanying footnote. In Ellingsworth, the easement provided for "ingress and egress to the Lake." Ellingsworth, 195 Wis. 2d at 145. The easement owners argued that this language was sufficient to confer the right to construct a pier. Id. at 151. The court disagreed, offering the following language upon which the Wendts rely:

The Ellingsworths argue that the easement need not specifically grant them the right to build a pier in order for them to have that right. It is true that, assuming all other conditions are met, § 30.131, STATS., applies if the easement 'authorizes access to the shore,' § 30.131(1), and if the 'pier is not prohibited by and is not inconsistent with the terms of the written easement,' § 30.131(3). This language indicates that § 30.131 applies even if the terms of the easement do not expressly permit the placement of a pier by the easement holder. However, § 30.131, when it applies, simply makes the pier placed and maintained by a non-riparian owner not 'unlawful' — that is, not a violation of statutes regulating such structures. Section 30.131 does not grant rights to the non-riparian owner visa-vis the riparian owner.

Ellingsworth, 195 Wis. 2d at 151.

¶ 12. At first blush, it may appear that this language supports the Wendts' argument. But a closer look at the decision reveals otherwise. The issue in Ellingsworth was whether the trial court had correctly ruled that the nonriparian owner was entitled to maintain a pier because the pier met the requirements of Wis. Stat. § 30.131. Ellingsworth, 195 Wis. 2d at 146. As the above language reveals, the court said, "no." But that is all the court said. The court was not asked, and did not answer, whether other circumstances might allow that an "access" easement can confer a right to use and maintain a pier. This is a subtle, but important, distinction.

¶ 13. In summary, the holding of Ellingsworth is this: (1) Wis. Stat. § 30.131 speaks only to the lawfulness of a pier that is used or maintained under a nonriparian access easement, and (2) the statute, standing alone, does not grant rights to a nonriparian owner vis-a-vis the riparian owner.

¶ 14. Therefore, we conclude that Ellingsworth does not govern this case, and that the parties' competing arguments as to whether the summary judgment evidence satisfies the factors under Wis. Stat. § 30.131 are off the mark. The same is true as to the trial court's analysis. The issue here is not whether the pier is lawful under § 30.131. That is a matter for the DNR. Rather, in our judgment, the proper inquiry is whether the terms and purpose of the easement included the right to use and maintain the pier. See Hunter v. McDonald, 78 Wis. 2d 338, 343, 254 N.W.2d 282 (1977). That requires us to examine the intent of the parties. On this point, we conclude that the relevant summary judgment evidence does not raise a material issue of fact.

¶ 15. Besides the language of the easement itself, the critical evidence on this question is the affidavit of William Jaeckle. This affidavit represents that the Jaeckle family installed the pier for family use in 1962, long before the easement was created. The pier was installed at the point where the later easement met the water's edge. William's affidavit further states, "When my dad and uncle sold the resort to Dennis Winn in the early '70s, they kept a 15 foot access easement to Okauchee Lake so that the family pier and shoreland could still be used." These statements stand unrefuted in the summary judgment record.

¶ 16. True, the Wendts provided counteraf-fidavits questioning whether the placement, use and maintenance of the pier after the easement were always performed by the Jaeckles or their assigns, whether the pier was regularly placed in the lake on a seasonal basis, and whether the pier was always substantially the same size and configuration. This evidence was advanced to address WlS. Stat. § 30.131(l)(b), (e) and (d). To the extent this evidence is relevant, we hold that it does not bring into question that the purpose of the easement included the use and maintenance of the pier and that the Jaeckle family (and perhaps others) used the easement for that intended purpose long thereafter.

¶ 17. On this different basis, we uphold the trial court's grant of summary judgment to the Blazeks. In making this determination, we are aware that our analysis differs from that of the trial court. However, we recall that our review of summary judgment is de novo and the question is whether a party is entitled to judgment as a matter of law. Fifer v. Dix, 2000 WI App 66, ¶ 5, 234 Wis. 2d 117, 608 N.W.2d 740.

CONCLUSION

¶ 18. We conclude that there is no material issue of fact that the easement was intended to confer the right to use and maintain the pier to the Jaeckles and their assigns. We affirm the grant of summary judgment to the Blazeks.

By the Court. — Judgment affirmed.

       The appeal in this case is taken from a partial summary judgment granted by Judge James R. Kieffer and from a portion of a later judgment entered by Judge J. Mac Davis, which incorporated the prior summary judgment by Judge Kieffer. On appeal, we review the summary judgment ruling by Judge Kieffer.

       The parties' briefs do not advise whether the Wendts purchased their property from Winn or from some intervening owner.

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

       After an investigation by a DNR warden, the DNR took no further action on the Wendts' complaint.

       Because the trial court ruled for the Blazeks on the merits, it did not discuss their laches and estoppel defenses.

       The trial court entered a partial summary judgment because the ruling did not govern the Wendts' claims as to certain of the other defendants. The later judgment disposed of these remaining claims and also restated the court's partial grant of summary judgment in favor of the Blazeks.

       Wisconsin Stat. § 30.131 reads as follows:
      Wharves and piers placed and maintained by persons other than riparian owners. (1) Notwithstanding s. 30.133, a wharf or pier of the type which does not require a permit under ss. 30.12(1) and 30.13 that abuts riparian land and that is placed in a navigable water by a person other than the owner of the riparian land may not be considered to be an unlawful structure on the grounds that it is not placed and maintained by the owner if all of the following requirements are met:
      (a) The owner of the riparian land or the owner's predecessor in interest entered into a written easement that was recorded before December 31, 1986, and that authorizes access to the shore to a person who is not an owner of the riparian land.

        (b) The person to whom the easement was granted or that person's successor in interest is the person who places and maintains the wharf or pier.
      (c) The placement and maintenance of the wharf or pier is not prohibited by and is not inconsistent with the terms of the written easement.
      (d) The wharf or pier has been placed seasonally in the same location at least once every 4 years since the written easement described in par. (a) was recorded.
      (e) The wharf or pier is substantially the same size and configuration as it was on April 28,1990, or during its last placement before April 28,1990, whichever is later.
      (f) The placement of the wharf or pier complies with the provisions of this chapter, with any rules promulgated under this chapter and with any applicable municipal regulations or ordinances.
      (2) Notwithstanding s. 30.133, an easement under sub. (1) may be conveyed if it is conveyed at the same time, and to the same person, that the land to which the easement is appurtenant is conveyed.

       Because we have affirmed the grant of summary judgment on the basis of the terms and purpose of the easement, we need not discuss the Blazeks' alternative arguments in support of affirmance (waiver, issue preclusion, laches and estoppel).


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    Mutual Service Casualty Insurance Company, Mutual Service Life Insurance Company, Modern Service Insurance Company and MSI Insurance Company, Plaintiffs-Appellants, v. Thomas P. Brass, Defendant-Respondent.
    Court of Appeals

      No. 00-2681.

      Submitted on briefs January 18, 2001.

    Decided March 14, 2001.

    2001 WI App 92
    (Also reported in 625 N.W.2d 648.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Michael J. Hicks of Hills & Hicks, S.C., Brookfield.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James W. Hammes of Cramer, Multhauf& Hammes, LLP, Waukesha.
    Before Brown, P.J., Nettesheim and Anderson, JJ.

      Petition to review denied.

   ANDERSON, J.

¶ 1. Mutual Service Casualty Insurance Company, Mutual Service Life Insurance Company, Modern Service Insurance Company and MSI Insurance Company (collectively, MSI) appeal from a circuit court order granting Thomas P. Brass's motion for summary judgment and from a circuit court order for dismissal. We agree with the circuit court that MSI's covenant not to compete is void and unenforceable because it violates the restrictions set forth in WlS. STAT. § 103.465 (1999-2000). We therefore affirm.

Facts

¶ 2. In 1993, MSI hired Brass as an insurance agent. On June 21, 1996, Brass entered into a career agent's contract with MSI. The contract contained provisions regarding Brass's activities after termination. These provisions stated that Brass was precluded from soliciting MSI customers to "lapse, cancel, or replace" any insurance contract in force with MSI in order to take that business to a competitor, for a period of not less than one year. The contract also provided that Brass not work for American National Insurance Company (American National) for three years after termination of the contract. Brass continued his employment as a career insurance agent until 1998. On December 30,1998, Brass gave written notice to MSI of his intention to terminate his agency contract. Brass immediately began working for American National as an agent and proceeded to contact customers of MSI in this regard.

¶ 3. On January 15, 1999, MSI initiated a lawsuit against Brass claiming that he violated the noncompete terms of his agency contract. That same day, MSI petitioned the court to issue a temporary restraining order enjoining Brass from competing in any way with MSI. The circuit court entered an ex parte restraining order. Brass moved for relief from the order and the court then lifted the restraining order. On February 15, 1999, pending a hearing on MSI's motion for a temporary injunction, both parties submitted motions for summary judgment to the court. On August 31, 2000, the court denied MSI's motion and granted summary judgment in favor of Brass, dismissing MSI's claim. The court found that the contract failed because it was over broad in respect to time and geographical territory. The court found that the three noncompete provisions respecting conduct were interrelated and that all are united for purposes of enforcement. Thus, the court held that all terms and conditions of the contract that seek to restrict Brass of the activities in the insurance business are as a matter of law unenforceable. MSI appeals.

Standard of Review

¶ 4. This court applies the same summary judgment methodology as the circuit court. Farm Credit Servs. of N. Cent. Wis., ACA v. Wysocki, 2000 WI App 124, ¶ 6, 237 Wis. 2d 522, 614 N.W.2d 1. We first examine the complaint to determine whether it states a claim and then we review the answer to determine whether it joins a material issue of fact or law. Id. If we determine that the complaint and the answer join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute which entitle the opposing party to a trial. Id.

¶ 5. Whether a covenant not to compete comports with the requirements of Wis. Stat. § 103.465 is a mixed question of law and fact. Farm Credit Servs., 2000 WI App 124 at ¶ 7. Additionally, whether a restrictive covenant is reasonably necessary to protect the employer depends on the totality of the circumstances and is a question of law to be resolved on the basis of either factual findings made by the circuit court or a stipulation of all the relevant facts by the parties. Id.

Analysis

¶ 6. Wisconsin law favors the mobility of workers; therefore, a contract that operates to restrict trade or competition is prima facie suspect and will be liberally construed in favor of the employee. Id. at ¶ 8. Such restrictions must withstand close scrutiny to pass legal muster as being reasonable; they will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires. Streiff v. Am. Family Mut. Ins. Co., 118 Wis. 2d 602, 611, 348 N.W.2d 505 (1984). The legislature codified this policy in Wis. Stat. § 103.465, which provides:

Restrictive covenants in employment contracts. A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal. Any covenant, described in this subsection, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.

¶ 7. As noted, the agency contract between MSI and Brass contains three provisions not to compete. The issue is whether these restrictive provisions are unenforceable as applied to Brass's post-termination activities. These restrictions on post-termination activities are set forth in sections 13.E.(2) and 14 of the contract, as well as in Addendum - 3 to the contract. Section 13.E.(2) states:

E. The companies obligation to commence, and to continue, the payment of termination compensation to you are subject to the following conditions:
(2) After termination of this contract, you do not either directly or indirectly induce, attempt to induce, or assist anyone else in inducing or attempting to induce policyholders to lapse, cancel, or replace any insurance contract in force wdth the companies; or furnish any other person or organization with the name of any policyholder of the companies so as to facilitate the solicitation by others of any such policyholder for insurance.
Failure to comply with condition (2) will result in the forfeiture of all termination compensation that remains unpaid at the time the condition is broken. ...

Section 14 states:

Your Activities After Termination. For a period of one year following termination of this contract, you will not either personally or through any other person, agency, or organization (i) induce or advise any policyholder of the companies credited to your account at the date of termination to lapse, surrender or cancel any insurance coverage in force with the companies or (ii) solicit any such policyholder to purchase any insurance coverage competitive with the insurance coverages sold by the companies. In the event the "period of one year" conflicts with any statutory provision, such period shall be the period permitted by statute.

¶ 8. The final noncompete provision, found in Addendum - 3 states in pertinent part:

Activities After Termination. Following termination of the Agent's Contract, Agent will not either directly or indirectly, by and for himself or as an Agent for another, or through others as their Agent, engage in or be licensed as an Agent, solicitor, representative, or broker, or in any way be connected with the property, casualty, health, or life insurance business as a representative or employee of the American National Insurance Company, its subsidiaries, affiliates or related companies, within a period of 3 years from the date of the voluntary or involuntary termination of this contract.

¶ 9. Brass argues that these restrictive provisions are over broad and therefore the entire restrictive covenant agreement is unenforceable under Wis. Stat. § 103.465. We agree with Brass. The supreme court's analysis in Streiff provides authoritative guidance. In Streiff, as here, the issue was whether or not under § 103.465 the restrictive provisions of a particular agency contract were reasonable and enforceable. Streiff, like Brass, had entered into a career agent's agreement with his employer, American Family. The agreement provided that upon its termination, Streiff was entitled to "extended earnings" if he complied with all of the terms of the agreement. Streiff, 118 Wis. 2d at 604. Immediately after termination, Streiff publicly announced that he was no longer working for American Family, that he had made arrangements with other insurers, and that he would continue to do business as an insurance agent. Id. Streiff also communicated with his clients who had insurance with American Family and encouraged them to buy insurance with another insurer through him. Id.

¶ 10. Following Streiffs public announcement and his communication with his American Family clients, American Family refused to pay him his "extended earnings," asserting that he had failed to comply with two clauses of the contract: section 5h and section 5i(4). Streiff, 118 Wis. 2d at 605. By the time the matter came to court, American Family had decided not to rely on a violation of section 5i(4) as justification for nonpayment, and to concede that section 5i(4) was overly broad and unreasonable as to the territory described, that it violated Wis. Stat. § 103.465, and that it was unenforceable. Streiff, 118 Wis. 2d at 607. The supreme court refused to view section 5h separately from section 5i(4), holding that the two sections must be viewed together because they constitute an indivisible covenant governing several similar types of activities and establishing several time and geographical restraints. Streiff, 118 Wis. 2d at 613. Any part of an indivisible covenant, even if reasonable on its own, will not be given effect if any other part is unreasonable. Id. at 614-15. Thus, the supreme court, having agreed with American Family's concession that section 5i(4) was overly broad and unreasonable, held the entire covenant unenforceable. Streiff, 118 Wis. 2d at 615.

¶ 11. We conclude, as the Streiff court did, that the provisions at issue are intertwined and indivisible because they govern several similar types of activities and establish several time and geographical restraints. Therefore, if one provision is unreasonable, all of the provisions are unreasonable. Id. at 613. However, to provide guidance in the future, we do not stop our analysis after holding one provision to be unreasonable (even though, in order to find the entire restrictive covenant unenforceable, it is only necessary for us to hold that one provision is unreasonable). Instead, we choose to address all three provisions. We hold that each of the three provisions in the agency agreement is unreasonable and under any of the provisions the indivisible covenant is unenforceable.

¶ 12. The language in sections 13.E.(2) and 14 is functionally equivalent to the language the supreme court found unenforceable for over breadth in Streiff. In Streiff, section 5i(4) restricted a terminated agent from taking an employment opportunity in the insurance industry in any state of the United States in which the agent's former employer operated as a licensed insurer. Streiff, 118 Wis. 2d at 607. Section 5h provided that the agent would forfeit extended earnings if he or she solicited any American Family policyholders within one year after termination and within a fifty-mile radius of the agent's place of business. Streiff, 118 Wis. 2d at 605.

¶ 13. Similar to the restrictive provisions in Streiff, sections 13.E.(2) and 14 provide that Brass must forfeit all termination compensation that remains unpaid if he solicits any MSI policyholders. This indicates that Brass is to have nothing to do with MSI policyholders, known or unknown, in Wisconsin or anywhere else in the world. Thus, in both sections 13.E.(2) and 14, the geographical limitation is over broad and fails under Wis. Stat. § 103.465.

¶ 14. Secondly, section 13.E.(2), as written, allows MSI to cancel termination compensation at any time after Brass's employment terminates. MSI argues that there is an implied time limitation of two years and one month because that is the time in which termination compensation must be paid. We infer no such limitation. There is no specific time limitation within this provision and therefore one could easily construe that MSI may seek enforcement at any point following Brass's termination. This time restriction is over broad; it fails under WlS. STAT. § 103.465.

¶ 15. Thirdly, Addendum-3 is over broad because it prohibits Brass from accepting any type of employment with American National. This indicates, for example, that Brass could not work for American National as a claims adjuster or even as a janitor. It is unreasonable for MSI to prohibit Brass from holding any position at American National. The Addendum, in its over breadth, fails as well.

¶ 16. Finally, whether a restrictive covenant is reasonably necessary to protect the employer depends on the totality of the circumstances and is a question of law to be resolved on the basis of either factual findings made by the circuit court or a stipulation of all the relevant facts by the parties. We agree with the circuit court and hold that nowhere has MSI demonstrated that these restrictive provisions were necessary to preserve the interests of MSI. We also agree that these restrictive provisions are onerous and unreasonably dampen the economic interests of Brass to earn a living. The restrictive covenant, as a whole, is unenforceable.

¶ 17. The tenor of the MSI brief on this appeal reveals that much of MSI's concern is over American National Insurance Company's raiding of the ranks of MSI's career agents for the purpose of obtaining MSI's customer lists. MSI complains in its brief that American National "has purloined 28 MSI agents and their customer lists at a cost to MSI Insurance of $15 million to $18 million." The law, however, does not protect against the raiding of a competitor's employees. Rather, it encourages the mobility of workers. So long as a departing employee takes with him or her no more than his or her experience and intellectual development that has ensued while being trained by another, and no trade secrets or processes are wrongfully appropriated, the law affords no recourse. Gary Van Zeeland Talent, Inc. v. Sandas, 84 Wis. 2d 202, 214, 267 N.W.2d 242 (1978).

By the Court. — Order affirmed.

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

       The applicable version of WlS. STAT. § 103.465 at the time of the supreme court's decision in Streiff v. American Family Mutual Ins. Co., 118 Wis. 2d 602, 348 N.W.2d 505 (1984), was the 1981-82 version. The substance of § 103.465 has remained unchanged in the subsequent versions and is substantively unchanged in the 1999-2000 version we rely on here.

       Section 5h provided:
      After termination of this agreement, the agent shall refrain from further solicitation of policyholders for the company and from further servicing of policyholders of the company and for a period of one year after such termination anywhere within the radius of 50 miles from the location of the agent's place of business under this agreement on the date of such termination shall not induce or attempt to induce or cause another or others to induce or attempt to induce any policyholder to replace, lapse, or cancel any policy of insurance written by the company.

        Streiff, 118 Wis. 2d at 605-06.
      Section 5i(4) provided:
      If, while being paid extended earnings, the agent associates himself in any sales or sales management capacity with another insurer engaged in writing any of the kinds of insurance written by the company, and if the agent performs services in any such capacity for such other insurer within any of the States of the United States in which the company operates as a licensed insurer, the agent, from and after the date of such association, shall forfeit all his rights to extended earnings otherwise thereafter payable by the company.

        Streiff, 118 Wis. 2d at 607.

       Section 5i(4) apparently restricted a terminated agent's employment opportunities in the insurance industry throughout this country. Streiff, 118 Wis. 2d at 607.


author: DYKMAN, P.J.

text:
    William J. Vonderhaar, Plaintiff-Appellant, v. Soo Line Railroad Company, a Minnesota Corporation, Defendant-Respondent, Lodging Enterprises, Inc., a Kansas Corporation, Defendant.
    Court of Appeals

      No. 00-0304.

      Submitted on briefs September 12, 2000.

    Decided March 15, 2001.

    2001 WI App 77
    (Also reported in 626 N.W.2d 314.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí John D. Magnuson of Yaeger, Junghauer, Barczak, Roe & Vucinovich, PLC, Minneapolis, Minnesota, and Michael J. Brose of Doar, Drill & Show, New Richmond.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael P. Crooks and
      Ryan D. Burke oí Peterson, Johnson & Murray, S.C., Madison.
    Before Dykman, P.J., Vergeront and Roggensack, JJ.
   DYKMAN, P.J.

¶1. William J. Vonderhaar appeals from an order dismissing his negligence claim against his employer, Soo Line Railroad Company, under the Federal Employers' Liability Act (FELA). Vonderhaar suffered various injuries after slipping and falling while on the job. Vonderhaar argues that the circuit court erred in granting summary judgment for Soo Line because the question of foreseeability of harm was a question for the jury. Soo Line argues that it had no notice of dangerous conditions, and that any harm to Vonderhaar was therefore unforeseeable. We conclude that, given the liberal standards of foreseeability under FELA, Soo Line has failed to make a prima facie case for summary judgment. Accordingly, we reverse.

I. Background

¶ 2. The pleadings and affidavits set forth the following facts. Soo Line employed Vonderhaar as a locomotive engineer. Vonderhaar ran trains from Dubuque, Iowa, to La Crosse, Wisconsin. Between runs, Soo Line lodged Vonderhaar and other employees at a motel in La Crosse owned by Lodging Enterprises, Inc. On January 21, 1996, Vonderhaar was walking across the motel courtyard sidewalk, which was covered with ice and snow, on his way to return his motel key. He slipped and fell, sustaining several injuries. Vonderhaar sued Soo Line, alleging a negligence claim under FELA. Soo Line moved for summary judgment, the trial court granted the motion, and Vonderhaar appeals.

II. Analysis

¶ 3. Vonderhaar argues that the issue of foreseeability of harm should have been left to the jury because a material question of fact exists with respect to this question. Soo Line argues that summary judgment was properly granted because it had no notice of dangerous conditions. While we conclude that summary judgment should not have been granted in this case, our decision is based on a determination that Soo Line failed to make a prima facie case for summary judgment.

¶ 4. We review a grant or denial of summary judgment de novo, using the same methodology as the circuit court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). The methodology is well known and we need not repeat it in its entirety here, except to observe that summary judgment is only appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 496-97.

¶ 5. FELA is a broad remedial statute that courts construe liberally to effectuate Congress's intent to protect railroad employees. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-43 (1994); Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594, 597 (1st Cir. 1996). The standard for liability under FELA is low, Stevens, 97 F.3d at 598, and the plaintiff s burden in a FELA action is "significantly lighter than it would be in an ordinary negligence case," Lisek v. Norfolk & W. Ry. Co., 30 F.3d 823, 832 (7th Cir. 1994).

¶ 6. "[T]he role of the jury is significantly greater in . . . FELA cases than in common law negligence actions. The right of the jury to pass upon the question of fault. . . must be most liberally viewed." Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656 (2d Cir. 1980). FELA actions are commonly submitted to juries on "evidence scarcely more substantial than pigeon bone broth." Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 132 (7th Cir. 1990). "The right to a jury determination is part and parcel of the liberal remedy afforded the working person under . . . FELA." Id. at 131.

¶ 7. We recognize that "a FELA plaintiff is not impervious to summary judgment." Lisek, 30 F.3d at 832. FELA is not a strict liability statute that turns a railroad into its employees' insurer. See Williams v. National R.R. Passenger Corp., 161 F.3d 1059, 1061 (7th Cir. 1998); Robinson v. Burlington N. R.R. Co., 131 F.3d 648, 651 (7th Cir. 1997).

¶ 8. Nevertheless, the lowered evidentiary standard must guide our review on a summary judgment motion. Lisek, 30 F.3d at 832. "[T]he lightened burden of proof means a correspondingly easier task for a plaintiff defending a summary judgment motion; because [the] burden at trial is so low, a FELA plaintiff can survive a motion for summary judgment 'when there is even slight evidence of negligence.'" Id.) see also Harbin, 921 F.2d at 130 — 31.

¶ 9. Turning to our summary judgment methodology with those standards in mind, we first examine the complaint to determine whether it states a claim, and then the answer to determine whether it presents a material issue of law or fact. See Guenther v. City of Onalaska, 223 Wis. 2d 206, 210, 588 N.W.2d 375 (Ct. App. 1998). Vonderhaar's complaint states that Soo Line was negligent under FELA based on eleven specific allegations and that he lost wages and sustained various injuries in whole or in part as a result of Soo Line's negligence. Soo Line's answer denies most of the factual allegations and asserts affirmative defenses, thus raising issues of fact and law.

¶ 10. Because the parties have raised issues of fact and law, we next examine Soo Line's affidavits and other proof to determine whether it has made a prima facie case for summary judgment. See Swatek v. County of Dane, 192 Wis. 2d 47, 62, 531 N.W.2d 45 (1995). However, we first turn to FELA case law in order to put Soo Line's proof in its proper context.

¶ 11. FELA is grounded in common law concepts of negligence. Consolidated Rail, 512 U.S. at 543; Urie v. Thompson, 337 U.S. 163, 182 (1949); Robinson, 131 F.3d at 652. However, FELA claims are governed by federal substantive law: "What constitutes negligence for the statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes." Robinson, 131 F.3d at 652 (citing Urie, 337 U.S. at 174).

¶ 12. In order to establish negligence under FELA, a plaintiff must offer evidence on duty, breach, damages, foreseeability, and causation. Stevens, 97 F.3d at 598;Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir. 1994). In this appeal, both parties focus on the foreseeability element.

¶ 13. Under FELA, the plaintiff must be able to establish that a reasonable person in the employer's position would foresee the potential for harm, Kossman v. Northeast Illinois Reg'l Commuter R.R. Corp., 211 F.3d 1031, 1036 (7th Cir. 2000); McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 300 (7th Cir. 1996), or that the unsafe condition was one the employer could have discovered upon inspection, see Williams, 161 F.3d at 1063.

¶ 14. In support of its motion for summary judgment, Soo Line submitted the affidavit of Greg Simmons, a Soo Line litigation manager; the affidavit of Pat Siverling, a Soo Line trainmaster; and excerpts from Vonderhaar's deposition testimony.

¶ 15. The excerpt from Vonderhaar's deposition reveals that he never specifically complained about ice on the spot where he slipped, but that he did complain about at least one other condition at the motel related to snow and ice. For example, Vonderhaar testified that one of the motel's doors was "always getting ice on it" and unsafe because he had to push so hard to open it.

¶ 16. Siverling's affidavit states that Siverling was the trainmaster who would normally receive complaints about dangerous conditions from Soo Line employees such as Vonderhaar. According to Siverling, no employee, including Vonderhaar, ever made any complaints to him about icy or dangerous conditions at the motel.

¶ 17. Simmons' affidavit states that he had supervised litigation for Soo Line in Wisconsin, Minnesota, and Iowa since 1991. Simmons stated that, to his knowledge, Soo Line never had a complaint or prior claim regarding slippery conditions at the motel. Simmons also stated that he had consulted with Soo Line's other litigation manager and made other inquiries. Despite this further investigation, he did not believe that any prior complaints had ever been made about dangerous or slippery conditions at the motel.

¶ 18. The gist of Soo Line's evidence is that Vonderhaar's claim was properly dismissed because Soo Line had no prior, actual notice of problems with icy conditions in the sidewalk courtyard or reports of prior accidents like Vonderhaar's. We are not satisfied that this is enough to establish that Vonderhaar's claim was barred, as a matter of law, under FELA.

¶ 19. In Kimbler v. Pittsburgh & Lake Erie R.R. Co., 331 F.2d 383, 384 (3d Cir. 1964), a FELA plaintiff slipped and fell on ice-covered wooden steps built and maintained by her railroad employer on her way to work. No salt, sand, or other such material had been spread on the steps. Id. The railroad argued that a reasonable person would not know that she or he was required to put anti-slipping material on steps in the winter. Id. at 385. The Third Circuit Court of Appeals disagreed, relying on the trial court's reasoning that "[i]ce on wooden steps is certainly foreseeable in the month of March," and that the railroad "simply disregarded the common knowledge that wooden steps may become hazardous in this region in the wintertime because of ice and snow." Id.

¶ 20. Kimbler establishes that, under FELA, normal winter conditions may be sufficient notice to railroad employers about the potential for harm due to a slip and fall on ice or snow. Therefore, even assuming that everything in Simmons' and Siverling's affidavits is true, Soo Line has not established a prima facie case for summary judgment. This is particularly true in light of the liability standards under FELA, which guide our review on summary judgment. See Lisek, 30 F.3d at 832. We reverse the circuit court's order granting Soo Line's motion for summary judgment, and remand for further proceedings.

By the Court. — Order reversed and cause remanded.

       In his brief, Vonderhaar argues that he was within the scope of employment, as required under FELA, at the time of his fall. Soo Line does not respond to this argument, therefore we take it as conceded. See State v. Peterson, 222 Wis. 2d 449, 459, 588 N.W.2d 84 (Ct. App. 1998).

       Vonderhaar also sued Lodging Enterprises, Inc., alleging a common law negligence claim.

       The Federal Employer's Liability Act is codified at 45 U.S.C. §§ 51-60 (2000). See Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 129 (7th Cir. 1990). Section 51 reads in part:
      Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

       The copy of the Siverling affidavit in the record is separated from Soo Line's other summary judgment materials, but based on its content we presume that Soo Line, not Vonderhaar, submitted it.


author: VERGERONT, J.

text:
    Anthony R. Varda, Plaintiff-Appellant, v. General Motors Corporation, Defendant-Respondent.
    Court of Appeals

      No. 00-1720.

      Submitted on briefs December 13, 2000.

    Decided March 15, 2001.

    2001 WI App 89
    (Also reported in 626 N.W.2d 346.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí Anthony R. Varda of DeWitt Ross & Stevens S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Kim M. Schmid, C. Paul Carver and Jennifer K. Huelskoetter of Bowman and Brooke LLP, Minneapolis, Minnesota.
    Before Dykman, P.J., Vergeront and Deininger, JJ.

      Petition to review denied.

   VERGERONT, J.

¶ 1. Anthony Varda appeals a trial court order dismissing his complaint for relief under Wisconsin's "Lemon Law," Wis. Stat. § 218.0171 (1999-2000). According to the complaint, Varda leased a new vehicle that met the requirements of a "lemon" within the first year of the lease term, but he did not demand relief under the statute from the manufacturer until after the lease term expired and he had purchased the vehicle under the terms of the lease. We conclude that at the time Varda made the demand, he was not a lessee within the meaning of § 218.0171(l)(b)4 and did not meet any other definition for consumer under para. (l)(b). We therefore conclude the complaint did not state a claim for relief. We also conclude the motion to dismiss the complaint was properly served under WlS. Stat. §801.14(2) by means of Federal Express. Accordingly, we affirm.

BACKGROUND

¶ 2. The complaint, filed on November 16, 1999, alleges as follows. On December 11, 1995, Varda entered into a two-year lease with North Shore Bank for a 1996 Chevrolet Blazer purchased by the bank from Jon Lancaster Chevrolet of Madison, Wisconsin. Varda took possession of the vehicle on that same day. Over the next ten months Varda experienced a problem with the vehicle's rear tailgate window opening on its own, and, after four unsuccessful attempts to correct this problem, Jon Lancaster finally corrected it on October 1,1996. Beginning in April 1996, Varda experienced repeated problems with the brakes and brought the vehicle to Jon Lancaster for brake service four times before the end of the lease term, at which time Varda purchased the vehicle pursuant to the terms of the lease. Immediately after purchase of the vehicle, Varda attempted to sell it because of his dissatisfaction over the brakes, but he received no offer. He continued to have problems with the brakes during 1998 and 1999, taking it to the dealer for brake service three more times, and unsuccessfully attempting to sell it again in 1998. The problem with the rear tailgate window and the brakes were nonconformities under the warranty.

¶ 3. On August 26, 1999, Varda demanded relief under the Lemon Law by serving a demand on General Motors Corporation that it repurchase the vehicle. This followed the announcement in July 1999 of a recall of 1991 through 1996 Blazers for the brake problem Varda had experienced. After General Motors failed to repurchase the vehicle, Varda requested arbitration from the Better Business Bureau, but he was not successful in obtaining either a repurchase or a refund. After the arbitration decision and before filing the complaint in this action, Varda traded the vehicle.

¶ 4. In his complaint Varda sought refund of the lease payments, lease purchase price, sales tax, license and title fees, repair expenses, and interest paid on financing in the total amount of $34,430.40; and he asked for double those damages as well as attorney fees and costs under WlS. STAT. § 218.0171(7).

¶ 5. General Motors moved to dismiss the complaint, contending it did not state a claim for relief under the Lemon Law for several reasons. Varda moved to strike that motion on the ground, among others, that (1) it had not been served as required by WlS. Stat. § 801.14(2) because Federal Express is not mail, and (2) delivery to a law firm's receptionist does not comply with the statute.

¶ 6. The trial court concluded the motion to dismiss was properly served because WlS. Stat. § 801.14(2) provides for service by "delivery" as well as by "mail," Federal Express, is a form of "delivery," and the package containing the pleadings was left in a conspicuous place in Varda's office. On the merits of the motion to dismiss, the court concluded that when Varda purchased the vehicle at the end of the lease term, he no longer met any definition of "consumer" under Wis. STAT. § 218.0171(l)(b), and he therefore did not meet the requirement that he be a consumer when he made the demand on General Motors. The court therefore dismissed the complaint.

DISCUSSION

¶ 7. Varda contends the trial court erred in concluding that service was proper under WlS. Stat. § 801.14(2) and erred in its interpretation of the Lemon Law. Resolution of both issues involves the application of a statute to a given set of facts. The facts relevant to the service issue are set forth in the affidavits in support of and in opposition to Varda's motion to strike and are not disputed. Therefore, the construction of the statute and its application to those facts is a question of law, which we review de novo. State v. Isaac J.R., 220 Wis. 2d 251, 255, 582 N.W.2d 476 (Ct. App. 1998). The facts relevant to the interpretation and application of the Lemon Law are those alleged in the complaint, which, for purposes of deciding a motion to dismiss, we take as true. Irby v. Macht, 184 Wis. 2d 831, 836, 522 N.W.2d 9 (1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Whether the facts alleged in the complaint state a claim for relief under a statute also presents a question of law subject to our de novo review. See id. Despite our dé novo standard of review, we benefit from the trial court's thorough analysis.

¶ 8. In construing a statute, our aim is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Isaac J.R., 220 Wis. 2d at 255. If the words of the statute convey the legislative intent, that ends our inquiry; we do not look beyond the plain language of a statute to search for other meanings, but simply apply the language to the facts before us. Id. at 255-56. However, if the language of the statute is ambiguous or unclear, we examine the scope, history, context, subject matter, and the object of the statute in order to ascertain the intent of the legislature. Id. at 256. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. Id. Whether a statute is ambiguous is a question of law. Awve v. Physicians Ins. Co., 181 Wis. 2d 815, 822, 512 N.W.2d 216 (Ct. App. 1994).

Service under Wis. Stat. § 801.14(2)

¶ 9. Wisconsin Stat. § 801.14(2) provides:

Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this section means: handing it to the attorney or to the party; transmitting a copy of the paper by facsimile machine to his or her office; or leaving it at his or her office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein.... Service by mail is complete upon mailing.

¶ 10. In the affidavit submitted by General Motors, Kimberly Carlson avers that she is an attorney representing General Motors and on December 31, 1999, she placed a copy of the motion to dismiss in a Federal Express envelope addressed to Varda in his capacity as attorney representing himself through the law offices of DeWitt, Ross & Stevens and deposited the envelope at the Federal Express Minneapolis/St. Paul Airport location. The attached Federal Express receipt shows the envelope was delivered to the address of DeWitt, Ross & Stevens on January 3, 2000, at 9:10 a.m. and signed for by "M. Croft." Carlson avers that she subsequently spoke by telephone to a person at the DeWitt, Ross & Stevens law firm who identified herself as Ms. Croft and who, in response to the question of what her position in the firm was, stated that "for Federal Express she was a receptionist."

¶ 11. In Varda's affidavit he avers he is an employee of DeWitt, Ross & Stevens, acting as attorney in this case. When Federal Express is delivered to the firm's office, it is received by the receptionist and distributed internally through an internal mail system, then left in a basket for the recipient. Varda further avers: "The firm's receptionist is not a person in charge of the office and is not authorized to accept service of process; standing policy is for the Office Manager or Managing Partner to accept service of process unless the process is directed to a specific firm attorney who is present to accept such process." In his brief to the trial court Varda asserted that on January 3, 2000, Marina Croft was a receptionist, but was never authorized to receive service nor was she ever in charge of the office.

¶ 12. Varda agrees with the trial court's ruling that Federal Express is not "mail" within the meaning of the statute, but disputes its conclusion that, considering Federal Express to be a form of delivery, the package was left "at his office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein." In response, General Motors contends the court erred in concluding Federal Express is not "mail," but, in the alternative, it agrees with the trial court that the requirements under the statute for delivery were met.

¶ 13. There is no Wisconsin case discussing whether Federal Express is "mail" within the meaning of this statute, and it appears there is a split of authority in the federal courts on whether Federal Express constitutes "mail" within the meaning of the counterpart federal rule, Fed. R. Civ. P. 5(b). Cf. Magnuson v. Video Yesteryear, 85 F.3d 1424, 1431 (9th Cir. 1996) (Federal Express is not "mail"), with U.S. v. 63-29 Trimble Road, 812 F. Supp. 332, 334 (E.D.N.Y. 1992) (Federal Express is "mail"). We do not decide this issue, however, because we conclude that service of the motion to dismiss was made by "delivering a copy" to "a clerk or other person in charge" of Varda's office.

¶ 14. The parties do not dispute that Federal Express is a form of delivery. The disagreement focuses on whether the receptionist who signed and accepted the material delivered is a "clerk or other person in charge [of the office]." Varda argues she is not, because, as a receptionist, she is not in charge of the office and, under firm policy, she is not "authorized to accept service of process," only the office manager or managing partner are so authorized.

¶ 15. Varda relies on the line of cases that discuss service requirements for commencement of an action, see, e.g., American Family Mut. Ins. Co. v. Royal Ins. Co., 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992), and Dietrich v. Elliott, 190 Wis. 2d 817, 826, 528 N.W.2d 17 (Ct. App. 1995), and he refers in his argument to "service of process." "Service of process" is the means by which a lawsuit is instituted, Accounting Data, Inc. v. McMurtrie, 78 Wis. 2d 89, 92, 253 N.W.2d 534 (1977), and it is designed to attain personal jurisdiction over the person of the defendant. Bendimez v. Neidermire, 222 Wis. 2d 356, 364, 588 N.W.2d 55 (Ct. App. 1998). The rule of strict compliance with the rules of statutory service applies when the rule in question provides for service that confers jurisdiction over the person. Dietrich, 190 Wis. 2d at 827.

¶ 16. However, in this case we are not concerned with service of a summons and complaint under Wis. Stat. §§ 801.02, 801.10 and 801.11, but, rather, with service of pleadings and other documents once an action has been instituted by service of a summons and complaint and the court already has jurisdiction over the person or the defendant. We therefore do not begin with reference to cases that address the requirements for service of a summons and complaint, as Varda urges, but, instead, begin with the language of WlS. Stat. § 801.14(2), and, in particular, the phrase "person in charge [of the office]."

¶ 17. We are uncertain whether Varda is arguing that only persons who are authorized by office policy to accept service of process are persons in charge of the office and we therefore address this possible construction. As we have already explained, "service of process" as used in the case law refers to the service of a summons and complaint. We conclude it is unreasonable to construe "person in charge [of the office]" as describing only those persons who are authorized by office policy to accept service of process, because WlS. Stat. § 801.14(2) is not concerned with service of a summons and complaint, and nothing in the language of the statute suggests that the meaning of the disputed phrase should be limited in this way.

¶ 18. We understand that Varda's primary argument is that "person in charge [of the office]" means a person who is in charge of the management of the law firm — such as the office manager or managing partner. We conclude that this is a reasonable construction, as is the one General Motors proposes: that, when an office designates a person to receive and sign for Federal Express deliveries, that is a "person in charge [of the office]" within the meaning of WlS. Stat. § 801.14(2).

¶ 19. We therefore consider the purpose of the statute, bearing in mind that in interpreting a statute prescribing how service is to be made, we are to focus on the purpose of the statute and the type of action to which the statute relates. Kruse v. Miller Brewing Co., 89 Wis. 2d 522, 528, 279 N.W.2d 198 (1979). It is evident from the terms of Wis. Stat. § 801.14(1) and (2) that the purpose of subsec. (2) is to provide notice to a litigant of orders entered by the court so that the litigant is apprised of court action and can comply with court orders, and to provide notice of the pleadings and other documents filed by the adverse party so that the litigant is apprised of those and may timely respond.

¶ 20. In keeping with the fact that Wis. Stat. § 801.14 does not have as a purpose establishing jurisdiction over the person, service by mail is routinely permitted under this statute, in contrast to WlS. Stat. § 801.ll(l)(c) and (5)(b), which permit service by mail only if personal service is not possible with reasonable diligence and then only in connection with publication. Delivery in § 801.14(2) is an alternative to service by mail, and, although delivery may be to the party or attorney personally, that is not required: one may choose to deliver by leaving the material "in a conspicuous place in the office" if "there is no one in charge." These alternatives for delivery — at the delivering party's option, without requiring any "reasonable diligence" in first attempting delivery to the party or attorney himself or herself, and without even requiring delivery to a person at all (if no one is in charge) — are in marked contrast to the strict hierarchy established and the specific requirements imposed under § 801.11.

¶ 21. We also observe that the use of the term "clerk" before "or other person in charge [of the office]" (emphasis added) indicates that a clerk is considered an employee who is in charge of the office. Since "clerk" is commonly used to mean someone employed to perform routine tasks in an office and not the manager of the entire office or enterprise, it seems unlikely the legislature intended that "or other person in charge [of the office]" could include only persons responsible for managing the entire office or enterprise.

¶ 22. Moreover, the alternative of leaving the material in a conspicuous place is more consistent with interpreting "person in charge [of the office]" to include rather than exclude a receptionist. Under Varda's interpretation, the person delivering the material must (if delivery is not to the individual party or attorney personally) give it to the managing partner or office manager because they are in charge of the law firm, but, if they are not present, then the delivery person may simply leave the material in a conspicuous place. However, the material is more likely to get to the intended recipient if it is left with a receptionist or other person employed in the office than if it is simply left "in a conspicuous place."

¶ 23. We conclude it is more reasonable to construe "person in charge [of the office]" to include a receptionist or other firm employee whose responsibilities include signing for Federal Express deliveries than it is to adopt the more restrictive meaning proposed by Varda. A person with this responsibility will see that the intended recipient receives the delivery, and, thus, the purpose of the statute is accomplished. It is not necessary to require that delivery be to a person with more authority in the firm in order to achieve the purpose of the statute; such a requirement is not consistent with the other alternatives for service in the statute; and it unnecessarily imports the stricter requirements for service of process when there is no indication in the language of the statute that the legislature intended that.

¶ 24. Construing the statute in this manner, we conclude Croft was a "person in charge [of the office]" within the meaning of Wis. Stat. § 801.14(2), and that the method of service therefore met the requirements of this statute. There is no dispute that if service by the Federal Express delivery on January 3, 2000, was proper, the motion to dismiss was timely filed. Accordingly, the trial court properly denied Varda's motion to strike the motion to dismiss.

Lemon Law

¶ 25. Wisconsin's Lemon Law provides:

If a new motor vehicle does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the motor vehicle lessor or any of the manufacturer's authorized motor vehicle dealers and makes the motor vehicle available for repair before the expiration of the warranty or one year after first delivery of the motor vehicle to a consumer, whichever is sooner, the nonconformity shall be repaired.

Wis. Stat. § 218.0171(2)(a). If "after a reasonable attempt to repair," the nonconformity is not repaired, the manufacturer must take certain specified steps, depending on which definition of "consumer" is applicable.

¶ 26. With respect to the consumers described in Wis. Stat. § 218.0171(1)(b)1-3 (purchasers, certain non-resale transferees, and persons who may enforce the warranty), the manufacturer must, at the direction of the consumer, either accept return of the vehicle and replace it with a comparable new motor vehicle and refund any collateral costs, or accept return of the vehicle and refund to the consumer (and to any holder of a perfected security interest as their interest may appear) the full purchase price, sales tax, finance charge, amount paid by consumer at point of sale, and collateral costs, less a reasonable allowance for use. Section 218.0171(2)(b)2.a and b.

¶ 27. The manufacturer's obligations to a consumer described in Wis. Stat. § 218.0171(1)(b)4, that is, a person "who leases a motor vehicle from a motor vehicle lessor under a written lease," are set out in a separate subdivision:

3. a. With respect to a consumer described in sub. (l)(b)4, [the manufacturer must] accept return of the motor vehicle, refund to the motor vehicle lessor and to any holder of a perfected security interest in the motor vehicle, as their interests may appear, the current value of the written lease and refund to the consumer the amount the consumer paid under the written lease plus any sales tax and collateral costs, less a reasonable allowance for use.
b. Under this subdivision, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the motor vehicle dealer's early termination costs and the value of the motor vehicle at the lease expiration date if the lease sets forth that value, less the motor vehicle lessor's early termination savings.

Wis. Stat. § 218.0171(2)(b)3.a-c (footnote added).

¶ 28. Wisconsin Stat. § 218.0171(2)(cm) provides further specificity regarding how a consumer as described in subd. (l)(b)4 obtains a refund under subd. (2)(b)3. The consumer must offer to return the vehicle to the manufacturer; no later than thirty days after that offer, the manufacturer must give the refund to the consumer; when the manufacturer does that, the consumer must return the vehicle. Section 218.0171(2)(cm)l. Under subd. (2)(cm)2, the vehicle lessor must offer to and ultimately transfer to the manufacturer title to the vehicle.

¶ 29. Varda contends that, because he was a "consumer" as defined in WlS. STAT. § 218.0171(l)(b)4 when his right to relief accrued during the first year of his lease term, he was still a consumer under that definition when he made the demand upon General Motors. Under his reading of subd. (l)(b)4, there is no time requirement on when he had to make his demand for relief under subd. (2)(b)3. General Motors counters that because Varda was not leasing the vehicle when he made the demand for relief from General Motors, he was not a consumer under subd. (l)(b)4.

¶ 30. We agree with Varda that Wis. Stat. § 218.0171(1)(b)4 does not indicate at what point in time one must be a lessee as defined in this subpara-graph in order to be a "consumer" for purposes of obtaining relief under § 218.0171. However, in order to arrive at the legislature's intent on this point, we do not construe this subparagraph in isolation, but examine it in light of the entire statute. State v. Swatek, 178 Wis. 2d 1, 6, 502 N.W.2d 909 (Ct. App. 1993). When we consider the subdivisions specifying the relief available for consumers as defined in subd. (l)(b)4, we are convinced that the only reasonable construction is that a person who purchases a vehicle under the terms of a lease at the expiration of a lease term is no longer a consumer within the meaning of subd. (l)(b)4.

¶ 31. The manufacturer's obligation when a consumer, as described in Wis. Stat. § 218.0171(1)(b)4, makes a demand are: acceptance of the return of the motor vehicle, refund to the lessor of the current value of the written lease, and refund to the consumer of the amount the consumer paid under the written lease plus any sales tax or collateral costs, less a reasonable use allowance. Subparagraph (2)(b)3.a. These are not presented as alternatives, indicating that the legislature intended that a manufacturer take all three steps when a consumer as defined in subd. (l)(b)4 demands relief for a "lemon." However, if the lease term has expired and the vehicle has been purchased under the terms of the lease, the provisions for return of the vehicle and transfer of title to the manufacturer, as described in para. (2)(cm), have no applicability: it is the former lessee, not the former lessor, who now has title of the motor vehicle. Similarly, if the term of the lease has expired at the time this demand for relief is made, there is no current value to the written lease, and the formula specified in subp. 3.b for computing the current value of the lease has no applicability. Finally, subd. (2)(cm)3 provides that "no person may enforce the lease against the consumer after the consumer receives a refund due under par. (b)3." This also has no applicability if the lease term has expired. In short, the language describing two of the components of relief available when a consumer is a lessee as described in subd. (l)(b)4 is inapplicable once a person has purchased the vehicle at the expiration of the lease term.

¶ 32. We do not view the component of relief that the manufacturer accept the return of the vehicle as simply an option which a consumer, as described in WlS. STAT. § 218.0171(1)(b)4, may or may not decide to take advantage of. The provisions in subd. (2)(b)2 setting forth the two alternative forms of relief available. to all other categories of consumers also contemplate that the consumer will return the vehicle. This is logical because, in all cases, the vehicle has a nonconformity that has not been repaired after reasonable attempts at repair. Given the detail the legislature has provided on the available relief and the uniformity of the return of the vehicle as a feature of every category of relief, it is not logical the legislature intended that a lessee who was entitled to relief under subd. (2)(b)3 during the lease term could decide not to invoke that relief, purchase the vehicle under the terms of the lease at the expiration of the lease term, and then later invoke relief under subd. (2)(b)3.

¶ 33. Varda contends that all the relief he seeks in his complaint as the purchaser of the vehicle is available under WlS. Stat. § 218.0171(2)(b)3 — refund of the purchase price, refund of license and title fees, and refund of interest páid on financing. According to Varda, these expenses are included in the term "the amount the consumer paid under the written lease." Subparagraph (2)(b)3.a. The inclusion of these items of relief in this subdivision, he asserts, shows that the legislature intended that persons who purchased the vehicle at the end of the lease term are consumers entitled to relief under this subdivision.

¶ 34. We do not agree with Varda that all the relief he seeks as a purchaser of the vehicle is provided for in subd. (2)(b)3. When subd. (2)(b)3 is read in conjunction with subp. (2)(b)2.b, which provides the alternative of a refund for persons who are consumers under the other definitions in para. (l)(b), it is evident the legislature knew how to specify the expenses incurred by the purchaser of a "lemon": the refund for this group of consumers expressly includes the "purchase price . . . finance charge, amount paid by consumer at point of sale," in addition to collateral costs and sales tax. Subparagraph (2)(b)2.b. This is another indication the legislature did not intend to include under subd. (l)(b)4 former lessees who purchased the vehicle under the lease at the expiration of the lease term.

¶ 35. Varda points to the legislative history of Wis. Stat. § 218.0171(l)(b)4, (2)(b)3, and (2)(cm), arguing that when the legislature added protection for lessees to the existing protection for owners, it intended that lessees be treated in the same manner as owners. He relies on this statement in the Legislative Reference Bureau (LRB) analysis: "This bill extends the remedies under the 'Lemon Law' to a person who leases a motor vehicle under a written lease." However, resort to legislative history is not appropriate when there is no ambiguity to resolve. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). But even if we do consider this LRB analysis, it adds nothing to our discussion. The quoted statement is followed by a summary of the proposed legislation, contrasting the proposed legislation with the then existing remedies for owners and persons who may enforce warranties. It is evident from the summary, just as it is evident from reading the plain language of the statute, that the relief available for consumers as described in subd. (l)(b)4 and the relief available for persons meeting all other definitions of consumers are not identical.

¶ 36. Varda emphasizes that the Lemon Law is a remedial statute and we are therefore to construe it liberally "to suppress the mischief and advance the remedy that the statute intended to afford." Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 979, 542 N.W.2d 148 (1996). However, we do not apply this principle to fashion a remedy that is inconsistent with the plain language of the statute. Moreover, we do not agree with Varda that it is necessary to provide the relief he seeks in order to achieve the purposes of the Lemon Law.

¶ 37. Those purposes were recently described in Dieter v. Chrysler Corp., 2000 WI 45, 234 Wis. 2d 670, 684, 610 N.W.2d 832:

The lemon law was enacted to provide consumers with remedies beyond the "inadequate, uncertain and expensive remedies of the Uniform Commercial Code or the Magnuson-Moss Warranty Act." It is a warranty enforcement statute, "a self-enforcing consumer law that provides 'important rights to motor vehicle owners." . . . The intent behind the law was to 'improve auto manufacturers' quality control. . . [and] reduce the inconvenience, the expense, the frustration, the fear and [the] emotional trauma that lemon owners endure.'" The law also was designed to provide an incentive to a manufacturer to restore a purchaser of a "lemon" to the position he was in at the time of the purchase. ( Citations omitted.)

¶ 38. Allowing a person who is entitled to relief under Wis. Stat. § 218.0171(2)(b)3 to wait until the lease term expires, purchase the vehicle, and then some time later invoke relief as a lessee does not make remedies for the "lemon" the person leased less expensive, less uncertain, more convenient, or more prompt. It does not improve manufacturers' quality control. It does not provide an incentive to manufacturers to restore the person who leased a "lemon" to the position he or she was at the time of entering into the lease. Rather, these purposes are better served by requiring that a person who is entitled to relief under subd. (2)(b)3 demand that relief from the manufacturer before the expiration of the lease term, rather than purchasing the vehicle at the expiration of the lease term and demanding relief under subd. (2)(b)3 at a later time.

¶ 39. Varda also contends we must adopt his proposed construction in order to avoid unreasonable or absurd results. He contends it is unreasonable that a person with a shorter lease term has less time within which to demand relief from the manufacturer than a person with a longer lease term. We do not agree. Whatever the lease term, it is rational to require a person who knows that the vehicle he or she has leased has a nonconformity that has not been able to be repaired after at least four attempts, or has been thirty days out of service because of the nonconformity, request relief for the nonconformity before the lease term expires and the person purchases the vehicle.

¶ 40. We also do not agree that, if a person entitled to relief under Wis. Stat. § 218.0171(2)(b)3 must demand relief during the term of the lease rather than after its expiration and the purchase of the vehicle, the delay of a manufacturer in responding to the demand may deprive the consumer of a remedy. If the person making the demand is a consumer as described in subd. (1)(b)4 when the demand is made, the consumer is entitled to the refund within thirty days of offering to return the motor vehicle. Subdivision (2)(cm)l. If the manufacturer does not provide the refund within that time period, there is a violation of the statute. The subsequent lapse of time that occurs during resort to a dispute settlement procedure, see § 218.0171(4), and the filing of a court action under subsec. (7), does not alter the fact that a violation of the statute occurred.

¶ 41. In summary, we agree with the trial court's conclusion that once the lease term expired and Varda purchased the vehicle, he was no longer a consumer under Wis. Stat. § 218.0171(1)(b)4. Varda does not contend he was a consumer under any other definition. Therefore, he was not entitled to any relief under para. (2)(b). It follows that when General Motors failed to provide within thirty days the relief he requested, it did not violate the statute. Accordingly, Varda has no claim for double damages under § 218.0171(7) as he contends. This subsection provides that, "[I]n addition to pursuing any other remedy, a consumer may bring an action to recover any damages caused by a violation of this section. ..." The facts alleged in the complaint, taken as true, do not show a violation of the section, and the trial court therefore correctly dismissed the complaint.

By the Court. — Order affirmed.

       The relevant statutory sections were renumbered by 1999 Act 31, § 287, but no substantive changes were made. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Because of its disposition on this issue, the court found it unnecessary to address whether a consumer could maintain a claim under the Lemon Law when the consumer had disposed of a vehicle after an unsuccessful demand upon a manufacturer and before filing a lawsuit. The court also did not address GM's argument that laches barred the action. Although the parties brief both these issues on appeal, it is unnecessary for this court to address them.

       Varda argues that the trial court erroneously placed the burden on him to prove lack of compliance with the service requirements of Wis. Stat. § 801.14(2) rather than placing the burden on General Motors to show compliance. The cases he relies on address the requirements of service of a summons and complaint, which is necessary to obtain jurisdiction over a person. See American Family Mut. Ins. Co. v. Royal Ins. Co. of America, 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992); Dietrich v. Elliot, 190 Wis. 2d 817, 827, 528 N.W.2d 17 (Ct. App. 1995). Whether Varda or General Motors has the burden of proving compliance with § 801.14(2) does not affect our analysis or our conclusion in this case; therefore we do not decide this issue.

       The American Heritage College Dictionary (3d ed. 1993) at 261 defines clerk as "a person who works in an office handling such things as records, correspondence, or files." We may consult a dictionary to establish the meaning of common words. Swatek v. County of Dane, 192 Wis. 2d 47, 61, 531 N.W.2d 45 (1995).

       "Reasonable attempt to repair" means any of the following occurring within the term of an express warranty applicable to a new motor vehicle or within one year after first delivery of the motor vehicle to a consumer, whichever is sooner:
      1. The same nonconformity with the warranty is subject to repair by the manufacturer, motor vehicle lessor or any of the manufacturer's authorized motor vehicle dealers at least 4 times and the nonconformity continues.

        2.The motor vehicle is out of service for an aggregate of at least 30 days because of warranty nonconformities.
      WlS. STAT. § 218.0171(l)Ql).
      "Nonconformity" means a condition or defect which substantially impairs the use, value or safety of a motor vehicle, and is covered by an express warranty applicable to the motor vehicle or to a component of the motor vehicle, but does not include a condition or defect which is the result of abuse, neglect or unauthorized modification or alteration of the motor vehicle by a consumer.
      WlS. STAT. § 218.0171(1X1).

       . § 218.0171(1)(b) defines consumers as any of the following:
      1. The purchaser of a new motor vehicle, if the motor vehicle was purchased from a motor vehicle dealer for purposes other than resale.
      2. A person to whom the motor vehicle is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the motor vehicle.
      3. A person who may enforce the warranty.
      4. A person who leases a motor vehicle from a motor vehicle lessor under a written lease.

       Wisconsin Stat. § 218.0171(2)(b)3.c provides for the computation of a reasonable allowance for use:
      Under this subdivision, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 100,000 and the numerator of which is the number of miles the consumer drove the motor vehicle before first reporting the nonconformity to the manufacturer, motor vehicle lessor or motor vehicle dealer.

       Wisconsin Stat. § 218.0171(2)(b)2 provides:
      2. At the direction of a consumer described under sub. (1) (b)l., 2. or 3., do one of the following:
      a. Accept return of the motor vehicle and replace the motor vehicle with a comparable new motor vehicle and refund any collateral costs.
      b. Accept return of the motor vehicle and refund to the consumer and to any holder of a perfected security interest in the consumer's motor vehicle, as their interest may appear, the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use. Under this subdivision, a reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the motor vehicle by a fraction, the denominator of which is 100,000 or, for a motorcycle, 20,000, and the numerator of which is the number of miles the motor vehicle was driven before the consumer first reported the nonconformity to the motor vehicle dealer.

       According to the complaint, the demand Varda made on General Motors was for "repurchase of the vehicle."

       These expenses are not included in the definition of "collateral costs," which are defined as "expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining alternative transportation." Wis. Stat. § 218.0171(1)(a).

       Analysis accompanying 1987 AB 188, enacted as 1987 Wis. Act 105.

       All persons defined as consumers under Wis. Stat. § 218.0171(l)(b), whether lessees or not and regardless of the length of the lease, must meet the time limits imposed under paras. (2)(a) and (b) before being entitled to relief under para. (2)(b): the consumer must report the nonconformity to the manufacturer, lessor, or authorized dealers and make it available to repair within one year or the warranty term, whichever is less, and the reasonable attempt at repair is also limited to that same time period. Section 218.0171(2)(a), (b) and (1)(h).

       In Church v. Chrysler Corp., 221 Wis. 2d 460, 468, 585 N.W.2d 685 (Ct. App. 1998), we held that the corresponding thirty-day time limit for refunds under Wis. Stat. § 218.0171(2)(c) is not suspended or delayed because the consumer does not agree that the amount of the refund offered by the manufacturer is correct: the manufacturer violates the statute if the refund is not made within the thirty days, even if items are in dispute and the manufacturer is attempting to resolve the dispute.

       By purchasing the vehicle, he did not become a purchaser under Wis. Stat. § 218.0171(1)(b)1 because he did not purchase a "new motor vehicle." Schey v. Chrysler Corp., 228 Wis. 2d 483, 489-90, 597 N.W.2d 457 (Ct. App. 1999), review denied, 228 Wis. 2d 174, 602 N.W.2d 760 (Wis. Aug. 24, 1999) (No. 98-1277).


text:
    State of Wisconsin, Plaintiff-Respondent, v. Jose Nieves-Gonzalez,, Defendant-Appellant.
    Court of Appeals

      No. 00-2138-CR. Submitted

      on briefs February 12, 2001.

    Decided March 15, 2001.

    2001 WI App 90
    (Also reported in 625 N.W.2d 913.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Jose R. Nieves-Gonzalez, pro se.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief oí James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general.
    Before Dykman, P.J., Roggensack and Deininger, JJ.
   DYKMAN, P.J.

¶ 1. Jose Nieves-Gonzalez appeals pro se from an order denying his postconviction motion for court-appointed postconviction counsel. Nieves-Gonzalez argues that he was denied his right to counsel and to an adequate first appeal, in violation of the Fourteenth Amendment. We agree and conclude that the trial court erroneously exercised its discretion because it applied the federal poverty guidelines incorrectly when denying Nieves-Gonzalez court-appointed counsel without a hearing. We therefore reverse and remand for the trial court to hold a hearing at which it may take additional evidence and make a determination consistent with our decision.

I. Background

¶ 2. After a guilty plea and sentence on drug charges, Nieves-Gonzalez filed a notice of intent to pursue postconviction relief. He requested postconviction counsel from the state public defender, and also moved the trial court to appoint counsel for him. The public defender determined that it could not make an indi-gency determination until Nieves-Gonzalez submitted information regarding his wife's income. The trial court concluded that before Nieves-Gonzalez was eligible to receive counsel at county expense, he was obligated to provide his wife's income information to the public defender. It appears that Nieves-Gonzalez or his wife then provided the public defender with the necessary information, after which the public defender determined that Nieves-Gonzalez did not meet its indigency requirements.

¶ 3. Nieves-Gonzalez renewed his motion to the trial court for appointed postconviction counsel. Nieves-Gonzalez asserted that he and his wife were separated and that he would not be able to get money from her. Without holding a hearing, the trial court made the following findings of fact with regard to Nieves-Gonzalez's indigency status:

1. The defendant is currently incarcerated and is unemployed.
2. The defendant receives $21 per month at the institution in which he is incarcerated.
3. The defendant owes $1,500 in court-ordered obligations.
4. The defendant and [M.E.N.] are husband and wife and there is no showing that they are either divorced or legally separated.
5. The defendant and his wife earned $24,864 in 1998.
6. The defendant and his wife have seven dependents.
7. The statutory cost of counsel is $2,000.
8. The defendant's total family income is $12,432 (for an eight-month period).
9. The statutory cost of living for a family of nine is $7,360 (for an eight-month period).
10. The defendant's total income minus family expenses ($5,072) is significantly greater than the amount set forth in the 1998 federal guidelines ($2,537 per month).

The court then concluded that Nieves-Gonzalez was "nonindigent for purposes of the appointment of counsel at county expense" and denied his motion. Nieves-Gonzalez appeals.

II.Analysis

¶ 4. Nieves-Gonzalez argues that he was denied his rights to counsel and an adequate first criminal appeal in violation of the Fourteenth Amendment when the trial court failed to appoint postconviction counsel for him. See Douglas v. California, 372 U.S. 353, 356-58 (1963). In support of the trial court's decision, the State asserts that because Nieves-Gonzalez's motion did not adequately explain his efforts to retain private counsel, it was inadequately pleaded. We briefly address the State's argument first.

¶ 5. The trial court may require a defendant seeking appointed counsel to make at least some showing of his or her attempts to retain counsel. See State v. Dean, 163 Wis. 2d 503, 514, 471 N.W.2d 310 (Ct. App. 1991). Nieves-Gonzalez stated in a notarized cover letter accompanying his renewed motion that he had written to some attorneys but had received no replies. The State argues that this is inadequate evidence of Nieves-Gonzalez's efforts to retain counsel, but we conclude that it was at least enough to warrant a hearing given the facts before us. It is apparent from the record that Nieves-Gonzalez is not fluent in English, and that this may have affected his ability to provide more thorough documentation in support of his requests for counsel. Moreover, because Nieves-Gonzalez has not yet received a hearing on his motion, the assertions in his motion should be construed liberally. See State ex rel. Harris v. Smith, 220 Wis. 2d 158, 164, 582 N.W.2d 131 (Ct. App. 1998) (holding that courts are to construe pro se pleadings liberally).

¶ 6. We have summarized the duties underlying a trial court's decision regarding appointed counsel as follows:

The trial court cannot restrict itself to the criteria mandated by the legislature [for the state public defender]. The court should consider all relevant evidence presented by the defendant that is material to the defendant's present ability to retain counsel. The trial court also must disregard the public defender's established cost of retained counsel in Wis. Adm. Code sec. SPD 3.02(1) and consider the fees charged by local private counsel in similar cases. The review at this stage will ultimately involve examining on a case-by-case basis, factors and circumstances that the legislature is ill-equipped to consider.

Dean, 163 Wis. 2d at 514. Thus, the right to appointed counsel does not hinge on the indigency criteria of the public defender. Pirk v. Dane County, 175 Wis. 2d 503, 506, 499 N.W.2d 280 (Ct. App. 1993). The trial court's determination of indigency is separate from the public defender's, and the public defender's criteria are not controlling. See Dean, 163 Wis. 2d at 514. If a criminal defendant does not meet the public defender criteria, the trial court must nevertheless determine whether the defendant is indigent, and if he or she is, the trial court should appoint counsel from the private bar. Pirk, 175 Wis. 2d at 506.

¶ 7. Pirk and Dean direct trial courts to depart from the public defender's criteria when considering indigency for purposes of court-appointed counsel, but Pirk and Dean do not explain what income standards trial courts should use. The WISCONSIN JUDICIAL Ben CHBOOK CR 3-6 (2000) recommends that a defendant may be considered indigent if the defendant's income is within federal poverty guidelines, and we agree that the trial court should consider the federal guidelines.

¶ 8. In adopting the federal poverty guidelines as a proper consideration for court-appointed counsel, we do not hold that every defendant with income less than the federal guidelines is entitled to court-appointed counsel. For example, it is conceivable that some defendants with very low income may nevertheless own significant assets. In addition, other unforeseen factors may affect the trial court's decision in a particular case, and it is not our role to attempt to enumerate all of them here. However, where a trial court denies a motion for court-appointed counsel after the defendant has shown that she or he has no assets and a household income well below the federal guidelines, a trial court should set forth findings explaining why it has determined the defendant can nevertheless afford counsel. Otherwise, appellate courts will have difficulty determining whether the trial court's denial of a request for counsel was a proper exercise of discretion.

¶ 9. Turning to the facts at hand, we first note that the trial court was careful to set forth findings detailing its calculations with regard to indigency. The trial court explained that it was following Pirk and Dean by considering the "local prevailing average rate" of counsel and that its decision was "not based solely on the public defender's criteria for appointment of counsel." The court considered the federal guidelines; however, it appears that it made an error in applying the guidelines.

¶ 10. When a trial court makes an indigency determination for purposes of appointment of counsel, whether a defendant has the financial means to obtain counsel is a question of fact. See Dean, 163 Wis. 2d at 513. We will not set aside a trial court's factual determinations unless they are clearly erroneous. State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). Whether the facts as found require the appointment of counsel is a matter within the trial court's discretion. Dean, 163 Wis. 2d at 514. A circuit court erroneously exercises its discretion when it makes a mistake with respect to the facts upon which its decision is based. Daniel-Nordin v. Nordin, 173 Wis. 2d 635, 654, 495 N.W.2d 318 (1993).

¶ 11. The trial court found that Nieves-Gonzalez's "total family income" for an eight-month period was $12,432, the amount shown on the public defender's worksheet. The court also found that the "statutory cost of living" for an eight-month period for a family of nine was $7,360, again the amount used by the public defender. Subtracting $7,360 from $12,432, the court determined that Nieves-Gonzalez's available income for the eight-month period was $5,072. The court compared that to a figure of $2,537, which it attributed to the 1998 federal poverty guidelines, and noted that $5,072 was "significantly greater." However, the 1998 federal poverty guidelines cap yearly income at $30,450 for a household of nine. This corresponds to an eight-month household income of $20,300, and a monthly household income of $2,537. Thus, it appears that the court compared Nieves-Gonzalez's eight-month income available under the public defender's criteria ($5,072) to the federal guideline's one-month household income cap ($2,537). Instead, the court should have compared the federal guidelines' eight-month household income cap of $20,300 to Nieves-Gonzalez's eight-month household income of $12,432. Using the latter comparison, it is clear that Nieves-Gonzalez's household income for an eight-month period is almost $8,000 below the federal guidelines.

¶ 12. To the extent that the trial court's findings with regard to indigence utilize this incorrect comparison, they are clearly erroneous. To the extent the trial court relied on these findings in denying Nieves-Gonzalez court-appointed counsel and in failing to conduct a hearing on the matter, it erroneously exercised its discretion. See Daniel-Nordin, 173 Wis. 2d at 654.

¶ 13. The trial court also found that Nieves-Gonzalez made no showing that he was legally separated or divorced. The trial court's calculations therefore assumed that Nieves-Gonzalez's wife's income was attributable to him. On the present record, we cannot say that the trial court's finding with regard to Nieves-Gonzalez's marital status was clearly erroneous. However, Nieves-Gonzalez may have further evidence to offer on this point at a hearing.

¶ 14. We remand so that the trial court may (1) hold a hearing at which it can inquire further into Nieves-Gonzalez's financial and marital status if necessary and (2) reapply the federal poverty guidelines properly. We note that, even including spousal income, Nieves-Gonzalez's household income is still well below the federal guidelines. Unless, upon further inquiry by the trial court, evidence comes to light showing that Nieves-Gonzalez has additional resources available, it would be difficult to conclude that he is not entitled to court-appointed counsel.

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

       The record contains a transcript of Nieves-Gonzalez's sentencing hearing, at which he had an interpreter. At the hearing, his interpreter stated that Nieves-Gonzalez wanted to give a statement to the court in English, but that he could not because he was too nervous. Instead, the interpreter translated his statement for him. The record also contains a copy of Nieves-Gonzalez's preliminary hearing waiver, which indicates that it was read to him in Spanish.

       The State concedes that the trial court may have incorrectly applied the federal poverty guidelines. The State also notes that, to the extent the trial court on remand finds that the federal poverty guidelines are important in its decision to appoint counsel, an evidentiary hearing may be warranted. We appreciate the State's analysis, and we commend it for its candor.

       Because we conclude that the trial court improperly denied Nieves-Gonzalez court-appointed counsel, even assuming his wife's income was attributable to him, we need not decide under what circumstances, if any, a trial court should disregard spousal income in its indigency determination.

       The trial court analyzed Nieves-Gonzalez's financial information under the 1998 federal poverty guidelines. For the sake of clarity, we have also used the 1998 guidelines in our review of the trial court's calculations. However, on remand, the trial court should determine whether a newer version of the guidelines is now more appropriate.