author: WEDEMEYER, PJ.

text:
    City of Milwaukee, Petitioner-Respondent, v. Roadster LLC, Respondent, C. Coakley Relocation Systems, Inc., Respondent-Appellant.
    Court of Appeals

      No. 02-3102.

      Submitted on briefs April 1, 2003.

    — Decided May 13, 2003.

    2003 WI App 131
    (Also reported in 666 N.W.2d 524.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Alan Marcuvitz and Andrea Roschke of Weiss Berzowski Brady LLP of Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Charles P Graupner and Reince R. Priebus oí Michael Best & Friedrich LLP, and Harry A. Stein, assistant city attorney of Milwaukee.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review denied 8-13-03.

   WEDEMEYER, PJ.

¶ 1. C. Coakley Relocation Systems, Inc. appeals from a final order granting a writ of assistance to the City of Milwaukee to remove Coakley from occupancy of a .176 acre parcel of property located at 1253 North Old World Third Street, Milwaukee, Wisconsin, which it used for employee and customer parking in conjunction with the operation of its business.

¶ 2. Coakley claims the trial court erred as a matter of law when it issued the writ of assistance without requiring the City to.make available comparable replacement property based on the trial court's conclusions that Coakley did not qualify as a "displaced person" under Wis. Stat. § 32.19(2)(e) (2001-02), or as a "tenant-occupant" under Wis. Admin. Code § COMM 202.01(41). Because Coakley satisfies both the definition of "displaced person" and of "tenant-occupant" of the property, we reverse.

BACKGROUND

¶ 3. The property, which is the subject of this appeal, is a portion of an entire parcel of land acquired by the City of Milwaukee through its power of eminent domain to create a new street design warranted by the demolition of the Park East Freeway in downtown Milwaukee. At the time of the taking, Roadster LLC was the owner of the entire parcel. The subject of this appeal (the property) is a parcel used for parking, with frontage on the west side of North Old World Third Street and the south side of West McKinley Avenue.

¶ 4. In 1998, Roadster acquired the entire parcel from Lappin Electric Company. Lappin's building was located on the north side of West McKinley Avenue, as was its truck parking. Lappin used the subject property located on the south side of West McKinley Avenue for customer and employee parking.

¶ 5. When Roadster purchased the entire parcel, it leased most of the building and truck parking located on the north side of West McKinley Avenue to Coakley. In addition, Coakley leased seventeen of twenty-two available parking spaces on the property located on the south side of West McKinley Avenue for employee and customer use. When the City acquired the property relative to the Park East Freeway project, Coakley lost its customer and employee parking spaces.

¶ 6. Prior to applying for a writ of assistance, the City did not make a comparable replacement property available to Coakley. The City claimed that Coakley did not qualify for this relocation benefit' afforded under Wis. Stat. § 32.05(8)(c). The controversy was submitted to the trial court on a stipulated statement of facts. The trial court agreed with the position of the City. It determined that Coakley was not engaged in business on the property and, therefore, Coakley was not a "displaced person." The trial court further concluded that Coakley's use of the property did not meet the definition of a tenant-occupant business under Wis. Admin. Code § COMM 202.01(41) because it conducted no business on the property. As a result, the trial court issued the writ of assistance. Coakley now appeals.

ANALYSIS

¶ 7. Coakley claims the trial court erred when it ruled that the City was not obligated to provide Coakley with a comparable replacement property before it could take occupancy under the writ of assistance. Our review of the trial court's decision necessitates the application of Wis. Stat. §§ 32.05(8) and 32.19(2)(e), and Wis. Admin. Code §§ COMM 202.01(14)(a) and 202.01(41), to the stipulated statement of facts. Statutory construction presents a question of law, which we review independently. Town of Sheboygan v. City of Sheboygan, 150 Wis. 2d 210, 212, 441 N.W.2d 752 (Ct. App. 1989). When the language of a statute or administrative rule is unambiguous, we afford the pertinent language its ordinary and accepted meaning. State ex rel. Nekoosa Papers, Inc. v. Board of Review, 114 Wis. 2d 14, 17, 336 N.W.2d 384 (Ct. App. 1983). "The statutes governing condemnation action procedures are in derogation of the common law and therefore are to be strictly construed." City of Racine v. Bassinger, 163 Wis. 2d 1029, 1037, 473 N.W.2d 526 (Ct. App. 1991).

¶ 8. There are three conditions precedent, which must exist before a trial court can issue a writ of assistance: (1) compliance with jurisdictional require-merits; (2) payment or tender of the award; and (3) making available comparable replacement property to the occupants. Id. at 1035. Coakley challenges the City's action under only the third requirement. The granting of a writ of assistance by a trial court in eminent domain actions is governed by Wis. Stat. § 32.05(8), which reads in pertinent part:

(b) ... The condemnor has the right to possession when the persons who occupied the acquired property ... hold over beyond the vacation date established by the condemnor .... If the condemnor is denied the right of possession, the condemnor may, upon 48 hours' notice to the occupant, apply to the circuit court where the property is located for a writ of assistance to be put in possession. The circuit court shall grant the writ of assistance if all jurisdictional requirements have been complied with, if the award has been paid or tendered as required and if the condemnor has made a comparable replacement property available to the occupants, except as provided under par. (c).
(c) The condemnor may not require the persons who occupied the premises on the date that title vested in the condemnor to vacate until a comparable replacement property is made available. This paragraph does not apply to any person who waives his or her right to receive relocation benefits or services under s. 32.197 or who is not a displaced person, as defined under s. 32.19 (2) (e), unless the acquired property is part of a program or project receiving federal financial assistance.

(Emphasis added.)

¶ 9. Pertinent parts of Wis. Stat. § 32.19(2) read:

(e) 1. "Displaced person" means, except as provided under subd. 2., any person who moves from real property or who moves his or her personal property from real property:
a. As a direct result of a written notice of intent to acquire or the acquisition of the real property, in whole or in part or subsequent to the issuance of a jurisdictional offer under this sub-chapter, for public purposes; or
b. As a result of rehabilitation, demolition or other displacing activity, as determined by the department of commerce, if the person is a tenant-occupant of a dwelling, business or farm operation and the displacement is permanent.
2. "Displaced person" does not include:
b. Any person, other than a person who is an occupant of the property at the time it is acquired ....

¶ 10. The parallel provisions of the administrative code are Wis. Admin. Code §§ COMM 202.01(14)(a) and 202.01(41):

(14) (a) "Displaced person" means any person who moves from real property or moves personal property from real property: []
1. As a direct result of a written notice of intent to deny possession or use of rented property or to purchase real property, the initiation of negotiations for, or the purchase of, such real property by a displacing agency, in whole or in part, for a public project....
(41) "Tenant-occupant, business", means ... a person who is tenant-owner and operator of a business or farm operation which was conducted on the property for at least one year before initiation of negotiations or the date of vacation when given a notice of displacement from the agency, whichever is earlier.

¶ 11. The trial court concluded that under Wis. Stat. § 32.19(2)(e), Roadster and Coakley were not "displaced persons." It further concluded that the property located on the south side of West McKinley Avenue and leased by Coakley did not fulfill the definition of a tenant-occupant business under Wis. Admin. Code § COMM 202.01(41) because Coakley did not conduct its business in the parking lot.

¶ 12. Coakley contends it was entitled to a comparable replacement property before the issuance of a writ of assistance because, under the applicable statutes and administrative rules, it was a "displaced person" and an "occupant" of the property. The City responds that because Coakley did not conduct business on, or physically occupy, the property, it did not fall under the definition of an "owner-occupied business, tenant-occupied business" or a "displaced person." As a result, the City concludes thát Coakley was not entitled to comparable replacement property. The trial court agreed with the City.

¶ 13. Coakley argues that its status as a "displaced person" is determined by a reasonable reading of the clear language of Wis. Stat. § 32.19(2)(e)l, which states that a displaced person is "any person who moves from real property or who moves his or her personal property from real property: ... As a direct result of a written notice of intent to acquire or the acquisition of the real property, in whole or in part. . . for public purposes . . . ." Its status, Coakley also contends, is further defined by a reasonable reading of Wis. Admin. Code § COMM 202.01(14)(a)l, which declares that a displaced person is "any person who moves from real property or moves personal property from real property: ... As a direct result of a written notice of intent to deny possession or use of rented property ... by a displacing agency, in whole or part, for a public project." Coakley was forced to give up its leasehold interest in the property and move its vehicle parking. Thus, argues Coakley, it is a "displaced person." We conclude that Coakley's interpretation reflects a reasonable reading of the statute; thus, Coakley satisfies both the statutory definition of "displaced person" and the administrative code provisions of "tenant-occupant."

¶ 14. The City disagrees with Coakley's interpretation for two reasons. First, the City contends that Coakley does not satisfy the definition of a displaced person under Wis. Stat. § 32.19(2)(e)2.b (a displaced person "does not include: . .. Any person, other than a person who is an occupant of the property at the time it is acquired...."). It argues that Coakley was not an "occupant" of the property because it did not occupy the parking spaces. Second, the City argues that Coakley does not satisfy the definition of "tenant-occupant" in Wis. Admin. Code § COMM 202.01(41) ("Tenant-occupant . . ." [is] a person who is a tenant-owner and operator of a business . . . which was conducted on the property. . . ."). Again, the City suggests that Coakley did not operate its business in the parking spaces. Thus, the City concludes Coakley is not a "displaced person" under the statute. The City contends that Bassinger "is completely dispositive of this appeal." We reject the City's contention for two reasons.

¶ 15. First, Bassinger involved a marina business limited to the rental of property for boat storage and docking and related services. Id., 163 Wis. 2d at 1032. The Bassingers were the owners of the business but they did not physically occupy the marina facility. Id. at 1033. This court examined whether they were "displaced persons" entitling them to comparable replacement property under Wis. Admin. Code § COMM 202.01(14)(b)10, which disqualifies a person from displaced status if the person "is a non-occupant owner of commercial.. . property that is rented to others . . . ." The crucial factor in our decision was the circumstance of absentee-landlordism. Bassinger, 163 Wis. 2d at 1042-43. We declared: "Owners of rental property who do not physically occupy the real property taken for public use are ineligible for business replacement payments under sec. 32.19(4m) . . . ." Id. at 1043.

¶ 16. Here, we are not examining a situation of an absentee-owner, but rather one of a physically present, business-owner tenant. This distinction is significant. The rule annunciated in Bassinger would control only if Roadster, the owner non-occupant of the property, sought entitlement , to comparable replacement property. Accordingly, the City's argument that Bassinger controls is faulty and, as a result, offers no authority to support its contention.

¶ 17. Second, as part and parcel of its contention that Coakley does not qualify as a "displaced person," the City asserts that Coakley, as a business entity, does not conduct business on the property and therefore it does not occupy the property. In advancing this argument, the City attempts to carve out a constituent part of Coakley's operation from the total business entity and, in doing so, renders the parking facility separate, distinct and unrelated. Such a conclusion, however, would fail to account for countless multi-sited businesses, which may be divided by public thoroughfares, green spaces and other socially desirable buffer-zones. To suggest that parking lots, separated from buildings by such amenities or buffer-zones, are not part of the business occupancy is contrary to common sense. Accordingly, the parking lot that is intended to serve customers and employees of a company which holds a lease to a larger parcel must be considered "occupied" by the business it is obviously intended to serve. The conclusion ought to be the same whether the lot is across the street from, or adjacent to, the building housing the business.

¶ 18. This unity-of-interest concept is consistent with our supreme court's declaration: "Where two or more distinct parcels (at least when owned by the same person) are used as a unit, the parcels may be treated as one and the taking of part or all of one of them treated as a partial taking of the combined whole." Jonas v. State, 19 Wis. 2d 638, 642, 121 N.W.2d 235 (1963). This unity-of-interest concept lends further support for the conclusion that the property under examination was occupied by Coakley. Because the property was a parking lot used by Coakley's employees and customers to access the business, it was an essential portion of Coakley's business the City "took" away. Coakley was forced to relocate its business because it no longer had a place for employees and customers to park.

¶ 19. For the foregoing reasons, Coakley was not excluded from the status of a "displaced person" and, therefore, is entitled to a comparable replacement property before the writ for restitution may be ordered.

By the Court. — Order reversed.

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

       Wis. Admin. Code § Comm 202.01(29) defines "Person" as including a corporation.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    In re the Marriage of: Mary Patricia McLaren, Petitioner-Respondent, v. Sean Robert McLaren, Respondent-Appellant.
    Court of Appeals

      No. 02-2451.

      Submitted on briefs April 9, 2003.

    — Decided May 14, 2003.

    2003 WI App 125
    (Also reported in 665 N.W.2d 405.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Teri M. Nelson oí Harris, Nelson & Zaeske, LLP, Wauwatosa.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Therese M. Henke of Law Office of Therese M. Henke, Mequon.
    Before Brown, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. Sean Robert McLaren (Sean) appeals from a judgment of divorce determining that the student loans incurred by Mary Patricia McLaren (Patricia), Sean's former wife, were marital debt. Sean argues that the trial court erred in equally dividing Patricia's student loans and that an unequal property division should have been granted for his contributions towards Patricia's education. Sean also argues that the trial court erred when it failed to deviate from the percentage standards for child support yet ordered him to pay half of the children's daycare expenses in addition to the child support. We agree with the trial court that Patricia's student loans were marital debt. However, we conclude that the trial court erred when it purported to apply the percentage standards yet additionally ordered Sean to pay half of the children's daycare expenses. We therefore affirm that portion of the judgment addressing Patricia's student loans and reverse that portion of the judgment addressing child support and daycare expenses and remand it to the trial court to readdress the issue of child support.

FACTS

¶ 2. Sean and Patricia were married on October 26, 1991. Two children were born during the marriage, Kelsey in March 1992 and Kyle in August 1994. On April 17, 2001, Patricia filed for divorce.

¶ 3. Sean and Patricia executed a partial Marital Settlement Agreement (MSA); the unresolved issues left for trial included property division and the division of marital debt. In addition, the primary child support issues left for trial were whether the trial court should deviate from the child support percentage guidelines and whether Sean should be ordered to pay a contribution towards the children's daycare expenses.

¶ 4. In determining the division of marital debts and assets, the trial court included all of Patricia's student loans in the marital estate. At the time of trial, Patricia's financial disclosure statement indicated her student loans totaled $25,905.83. The MSA stipulated and the trial court required that Patricia pay the student loans; however, to equalize the marital estate, the trial court ordered Sean to pay the parties' marital consolidation loan through Allco Credit Union.

¶ 5. The trial court also indicated that it would not deviate from the child support percentage guidelines amount of 25% of Sean's gross monthly income. However, the trial court indicated that in addition to the 25% of his gross monthly income, Sean was required to contribute to one-half of the children's daycare expenses. On August 29, 2002, a judgment of divorce was entered. Sean appeals from the portion of the judgment declaring Patricia's student loans part of the marital estate and from the portion of the judgment requiring him to pay 25% of his gross monthly income in addition to one-half of the children's daycare expenses.

DISCUSSION

¶ 6. Sean argues that the bulk of Patricia's student loans were premarital, that he received no benefit from the loans, that he derived no benefit from Patricia's education and that the trial court erred by including all of the student loans in the marital estate and failing to order that Patricia be solely responsible for the loans. We reject both Sean's characterization of the facts and his legal conclusions.

¶ 7. First, in the MSA, Sean and Patricia stipulated that Patricia was solely responsible for the student loans and the trial court so ordered. However, to offset that allocation and equalize the debt of the marital estate, the trial court ordered Sean solely responsible for payment of the marital consolidation loan through Allco Credit Union. It is this allocation that Sean actually challenges.

¶ 8. Marital assets and debts (collectively, the marital estate) include all of the property and obligations of either party which were acquired before or during the marriage unless specifically exempted by statute. See Wis. Stat. § 767.255 (2001-02). The division of the marital estate lies within the sound discretion of the trial court. See Long v. Long, 196 Wis. 2d 691, 695, 539 N.W.2d 462 (Ct. App. 1995). We must sustain discretionary determinations if we find that the trial court examined the relevant facts, applied a proper standard of law and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Id.

¶ 9. The trial court did not misuse its discretion when it found the student loans to be marital debt. Wisconsin Stat. § 767.255(3) provides that all property not inherited or gifted is to be divided equally between the parties. The trial court

may alter this distribution without regard to marital misconduct after considering all of the following:
(a) The length of the marriage.
(b) The property brought to the marriage by each party.
(c) Whether one of the parties has substantial assets not subject to division by the court.
(d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services..
(e) The age and physical and emotional health of the parties.
(f) The contribution by one party to the education, training or increased earning power of the other.
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
(i) The amount and duration of an order under s. 767.26 granting maintenance payments to either party, any order for periodic family support payments under s. 767.261 and whether the property division is in lieu of such payments.
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
(k) The tax consequences to each party.
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
(m) Such other factors as the court may in each individual case determine to be relevant.

Id. The trial court need not consider all of these factors. Arneson v. Arneson, 120 Wis. 2d 236, 254, 355 N.W.2d 16 (Ct. App. 1984).

¶ 10. Here, the trial court explained why it included the student loans as marital debt:

This is a very difficult case.... I see a young couple that got married young. She had three years in at U.W LaCrosse. He is a year . .. behind her in high school; then joined the navy.
They had a child that probably they didn't plan on that interrupted, [sic] ....
She then drops out of U.W LaCrosse. She may not have been doing terrifically academically. I think it's undisputed that she was placed on probation.
They then moved to Virginia where he is stationed. She immediately gets a job as a waitress at the Yacht Club and is working there until their first child is born.
She then goes to a junior college down there when the student loans become due. They remain down there, I think, until April of '93, at which time they come back, and Mrs. McLaren once again goes to work....
In the meantime, Mr. McLaren is also working full time.
They were incurring this debt. Student loans come due again and I believe it was in the Fall of 1994 she tried to go back to school. She was pregnant or had just had their second child, according to my notes, and simply caused too much stress to go to school, trying to work, and take care of household responsibilities that they had; so she quit, and worked.
She then worked at the medical billing office. Worked for them. Went back to school after she got the job at Leeson with some tuition reimbursement, and in that regard I find this case differs from the cases that we have been talking about where one spouse worked full time, paid the household expenses, and paid the other spouse's, basically, enabled the other spouse to go to school.
I view this based on the evidence as being much more of a joint partnership albeit kind of a silent partnership on what the degree was going to be for, things of that nature, but clearly was in anticipation that the income, that they would both benefit from that.
Over the years it appears that they did not distinguish the premarital student loans from the marital student loans. They were always there. Decisions were made to defer those loans; they weren't paid down.
I think there has been a transmutation of those debts and I think they have to be dealt with in the context of this marriage as marital assets ....
I recognize the length of this marriage. It is, well, not short; it's not, by any stretch of the imagination, long term, but certain decisions were made during the marriage which resulted in those loans not being paid down, and I think that it would have been paid with marital assets.

¶ 11. The trial court considered the length of the marriage, the contributions of both Sean and Patricia to the marriage, Sean's contribution to Patricia's education and other factors the court deemed relevant. The trial court examined the relevant facts, considered the proper factors of Wis. Stat. § 767.255(3) and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. See Long, 196 Wis. 2d at 695. The trial court appropriately exercised its discretion in including the student loans in the marital estate and ordering Sean to pay the marital consolidation loan to equalize Patricia's payment of the student loans.

¶ 12. Sean also argues that the trial court erred when it failed to deviate from the percentage standards for child support yet ordered him to pay half of the children's daycare expenses in addition to the child support. We agree.

¶ 13. The determination of appropriate child support is committed to the sound discretion of the trial court. Weidner v. W.G.N., 131 Wis. 2d 301, 315, 388 N.W.2d 615 (1986). Whether the trial court properly exercised its discretion is a question of law. Seep v. State Pers. Comm'n, 140 Wis. 2d 32, 38, 409 N.W.2d 142 (Ct. App. 1987). We will sustain a discretionary act if we find that the trial court examined the relevant facts, applied a proper standard of law and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995).

¶ 14. A trial court, in setting child support, is statutorily obligated to use the percentage standards set by the Department of Health and Family Services. Wis. Stat. § 767.25(lj). The percentage standards which the Department established are set forth in Wis. Admin. Code ch. DWD 40 and currently require child support for two children to be set at 25% of the payer's base income. A trial court may only depart from the percentage standards "if, after considering the factors listed in § 767.25(lm). . . the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties." Kjelstrup v. Kjelstrup, 181 Wis. 2d 973, 975, 512 N.W.2d 264 (Ct. App. 1994); see also § 767.25(lm). The factors that courts may consider when contemplating a deviation from the percentage standards are found at § 767.25(lm):

(a) The financial resources of the child.
(b) The financial resources of both parents.
(bj) Maintenance received by either party.
(bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 USC 9902 (2).
(bz) The needs of any person, other than the child, whom either party is legally obligated to support.
(c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.
(d) The desirability that the custodian remain in the home as a full-time parent.
(e) The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
(ej) The award of substantial periods of physical placement to both parents.
(em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.24.
(f) The physical, mental and emotional health needs of the child, including any costs for health insurance as provided for under sub. (4m).
(g) The child's educational needs.
(h) The tax consequences to each party.
(hm) The best interests of the child.
(hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.
(i) Any other factors which the court in each case determines are relevant.

¶ 15. Here, the trial court ordered Sean to pay 25% of his gross monthly income, in accordance with Wis. Admin. Code § DWD 40.03(l)(b). However, the trial court also ordered Sean to pay 50% of the monthly child care expenses in addition to 25% of his gross monthly income. Looking at Wis. Stat. § 767.25, the only provision to split child care costs, in addition to child support, is child care costs related to health insurance and medical costs. Sec. 767.25(4m). Section 767.25 makes no provision as to splitting child care beyond what is provided in the child support payments.

¶ 16. We therefore conclude that the trial court did, in fact, deviate from the child support guidelines by ordering payment of child care expenses in addition to 25% of Sean's gross monthly income. Thus, the trial court was required under Wis. Stat. § 767.25 to explain its deviation from the guidelines. The trial court did explain why it awarded daycare expenses in addition to 25% of Sean's income:

With regard to child care or daycare expenses, I believe both parties should bear one-half of the expense and I will order that. The reason for that is that day care allows both parents to work, provides secure care for the children. The children are young. I don't know that you could do this any less, for any less cost than they were doing this, and I don't think it should be an individual responsibility of Mrs. McLaren. One or the other of them would have to quit working if it wasn't for day care, in my opinion, particularly, during the summer.

However, the trial court also simultaneously (and inconsistently) asserted that it was not going to deviate from the child support percentage standards and did not address any of the § 767.25(lm) factors required for such a deviation.

¶ 17. Because the trial court did, in fact, deviate from the child support percentage standards when it ordered Sean to pay one-half of the daycare expenses and did so without addressing the Wis. Stat. § 767.25(lm) factors, the trial court erroneously exercised its discretion. We therefore reverse the child support order in its entirety and remand this matter to the trial court to conduct further proceedings on the issue of child support.

CONCLUSION

¶ 18. We agree with the trial court that Patricia's student loans were marital debt. Thus, when the MSA assigned payment of those student loans to Patricia, the trial court properly ordered Sean to pay the Allco marital consolidation loan to equalize Patricia's payment of the student loans. However, we conclude that the trial court erred when it purported to apply the percentage standards yet additionally ordered Sean to pay half of the children's daycare expenses. We therefore affirm that portion of the judgment addressing Patricia's student loans and reverse that portion of the judgment addressing child support and daycare expenses and remand this matter to the trial court to readdress the issue of child support consistent with this decision.

¶ 19. Costs are denied to both parties.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

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


author: ROGGENSACK, J.

text:
    Sheri Klein, Plaintiff-Respondent, v. Board of Regents of the University of Wisconsin System, Defendant-Appellant.
    Court of Appeals

      No. 02-1927.

      Submitted on briefs February 26, 2003.

    — Decided May 15, 2003.

    2003 WI App 118
    (Also reported in 666 N.W.2d 67.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of John R. Sweeney, assistant attorney general, James E. Doyle, attorney general, and Peggy A. Lautenschlager, attorney general (supplemental briefs).
    On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Aaron N. Halstead of Shneidman, Hawks & Ehlke, S.C. of Madison.
    Before Roggensack, Deininger and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. The Board of Regents of the University of Wisconsin System appeals a judgment of the Dane County Circuit Court. The circuit court concluded that: (1) sovereign immunity does not bar Sheri Klein's action based on the settlement agreement reached among Klein, the University of Wisconsin-Stout and the Board of Regents to resolve Klein's Title VII discrimination claim; and (2) the Board of Regents breached the settlement agreement. Because we conclude that sovereign immunity does not bar Klein's action, but that there are material issues of fact about whether the Board of Regents breached the settlement agreement, we affirm in part; reverse in part and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2. Beginning in August of 1993, Sheri Klein served as a member of the UW-Stout Department of Art and Design, where she was on the tenure track. In early 1999, Klein was considered for and denied tenure. As a result, in December of 1999, she filed a Title VII discrimination complaint alleging that tenure had been denied in retaliation for her complaints of sexual harassment by members of the Department of Art and Design. The Equal Employment Opportunity Commission (EEOC) facilitated mediation and a settlement agreement was reached.

¶ 3. Under the terms of that agreement, the UW-Stout Department of Art and Design and the UW-Stout Chancellor agreed to forward to the Board of Regents recommendations for tenure at UW-Stout. If the Board granted tenure to Klein, UW-Stout agreed to assign her to "a department at UW-Stout that is appropriate to her training, skills, and abilities." In exchange, Klein relinquished any claims she may have then had, or would have in the future, against the Board or any of its agents, such as UW-Stout.

¶ 4. The bargained-for recommendations for tenure were made and the Board granted Klein tenure at UW-Stout. Klein was assigned to teach in "Stout Solutions," an assignment to which she initially agreed, but later sought to change. Stout Solutions is not a "department" as defined in Wis. Admin. Code § UWS 1.03. However, given Klein's performance as a teacher and her style of interacting with other faculty members, Provost Robert Sedlak averred that it was the assignment that made the most appropriate use of Klein's training, skills and abilities while satisfying UW-Stout's placement obligation under the settlement agreement.

¶ 5. Because UW-Stout refused to reassign Klein, she brought suit under the settlement agreement asserting that her placement in Stout Solutions did not satisfy UW-Stout's obligation to assign her to "a department . . . appropriate to her training, skills, and abilities." Her claim focuses on the word "department" that she contends can mean only an academic department, as defined in Wis. Admin. Code § UWS 1.03.

¶ 6. The Board moved to dismiss Klein's complaint based on sovereign immunity and for failure to state a claim for relief. Klein moved for summary judgment that the Board had breached the settlement agreement. The circuit court interpreted the settlement agreement as part of Klein's Title VII claim and concluded that sovereign immunity did not bar her lawsuit. Initially, the circuit court declined to rule further, believing that it was being asked to make an advisory decision. However, upon Klein's motion for reconsideration, it held that the Board had breached the settlement agreement because Klein had not been assigned to a department as defined in Wis. Admin. Code § UWS 1.03. The Board appeals.

DISCUSSION

Standard of Review.

¶ 7. The Board appeals the circuit court's denial of its motion to dismiss based on sovereign immunity, which it contends bars Klein's suit for an alleged breach of the settlement agreement. In order to determine whether sovereign immunity bars Klein's lawsuit, we must interpret Title VII, on which her claim is grounded. Interpretation of Title VII is a question of law that we review without deference to the circuit court's decision. See Lindas v. Cady, 150 Wis. 2d 421, 429, 441 N.W.2d 705, 708 (1989).

¶ 8. The Board also appeals the circuit court's decision to grant summary judgment by concluding that the settlement agreement had been breached. This also presents a question of law that we decide de novo. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997).

Klein's Claim.

¶ 9. To decide the Board's motion to dismiss based on sovereign immunity, we must determine what kind of an action Klein has brought because sovereign immunity is not a defense to all suits against the State. See, e.g., Lister v. Board of Regents, 72 Wis. 2d 282, 303, 240 N.W.2d 610, 623 (1976) (sovereign immunity does not bar suits for actions taken outside the bounds of a State agency's constitutional or jurisdictional authority); German v. DOT, 2000 WI 62, ¶ 2, 235 Wis. 2d 576, 612 N.W.2d 50 (concluding that the legislature may waive sovereign immunity). The Wisconsin Supreme Court has also held that sovereign immunity does not lie against a claim brought under Title VII. Lindas, 150 Wis. 2d at 430, 441 N.W2d at 709. We therefore begin by examining Title VII, which formed the basis for the circuit court's conclusion that Klein's action in state court was not precluded by sovereign immunity. When we interpret a federal statute, our goal is to determine the intent of Congress. Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 312, 340 N.W.2d 704, 715 (1983).

¶ 10. Klein contends that her state court action is part of her initial Title VII claim and is therefore "brought under" Title VII. Accordingly, we begin by examining the phrase "brought under this title" as used in Title VII. Because the parties argue for differing meanings of that phrase, we must determine whether the phrase is ambiguous. A phrase is ambiguous if it can be understood by reasonably well informed persons in two or more ways. TDS Realestate Inv. Corp. v. City of Madison, 151 Wis. 2d 530, 537, 445 N.W.2d 53, 56 (Ct. App. 1989). We conclude the federal statute is ambiguous because it could draw in only the initial Title VII claim, as the Board contends, or it could include other actions that may be necessary to effecting the policy that underlies Title VII, as Klein asserts.

¶ 11. As an initial matter, we note that state and federal courts have concurrent jurisdiction over Title VII claims. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 821 (1990); Lindas, 150 Wis. 2d at 429, 441 N.W.2d at 708. No Wisconsin appellate court has addressed whether an action for breach of a Title VII settlement agreement is a part of the initial Title VII action, but many federal circuit courts have done so. See, e.g., EEOC v. Liberty Trucking Co., 695 F.2d 1038 (7th Cir. 1982) (concluding that although Title VII does not explicitly grant the EEOC authority to enforce conciliation agreements, Congress intended to provide the EEOC such a forum to encourage the voluntary settlement of disputes); EEOC v. Henry Beck Co., 729 F.2d 301 (4th Cir. 1984) (concluding that the EEOC has authority under Title VII to enforce pre-determination agreements); Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir. 1997) (concluding that Title VII private plaintiffs can bring an action in federal court to enforce a pre-determination settlement agreement); cf. Morris v. City of Hobart, 39 F.3d 1105 (10th Cir. 1994) (concluding that a claimed breach of a settlement agreement was not an action brought under Title VII).

¶ 12. In deciding whether an action on a settlement agreement is brought under Title VII, the majority of federal appellate courts have concluded that although Title VII does not explicitly provide for enforcement of settlement agreements, Congress must have intended to provide a forum to do so because the underlying policy of Title VII is to consensually resolve disputes and having legally enforceable settlement agreements furthers that policy. See, e.g., Ruedlinger, 106 F.3d at 215; Liberty Trucking, 695 F.2d at 1044; Henry Beck, 729 F.2d at 305.

¶ 13. Although we are bound only by the opinions of the United States Supreme Court on questions of federal law, Thompson, 115 Wis. 2d at 307, 340 N.W.2d at 713, we conclude that the reasoning of the Seventh Circuit Court of Appeals in Ruedlinger and Liberty Trucking is very persuasive. The Seventh Circuit reasoned that because the statutory scheme of Title VII is bottomed on the encouragement of voluntary compliance in the elimination of employment discrimination, enforcement of conciliation and pre-determination settlement agreements must be part of the underlying Title VII actions. We agree and note that to conclude otherwise would undermine the policy of voluntary compliance, that is most often achieved through settlement agreements, and force more cases into court for judicial resolution of the initial Title VII claims. Statutory interpretation that contravenes a purpose of the statute is not favored. See Liberty Trucking, 695 F.2d at 1043. Accordingly, we conclude that Klein's action is part of her initial Title VII claim, and as such, sovereign immunity does not lie. See Lindas, 150 Wis. 2d at 430, 441 N.W.2d at 709.

Breach of the Settlement Agreement.

¶ 14. A Title VII settlement agreement is a voluntary contractual arrangement, containing the terms and conditions agreed to by the employer and the employee, here, the Board of Regents by its agent, UW-Stout, and Klein. Nothing in Title VII compelled either party to enter into the agreement or to choose particular terms.

¶ 15. The circuit court granted summary judgment to Klein by concluding that the term "department," used in the settlement agreement, could have only one meaning and that was as set out in Wis. Admin. Code § UWS 1.03. Therefore, because Stout Solutions is not a department under that definition, it concluded that the Board of Regents breached the agreement. On appeal, the Board contends that the affidavits submitted create a dispute of material fact about Klein's placement because the parties did not agree to define department according to § UWS 1.03 and given that Klein's training, skills and abilities must also be factored into her placement, Stout Solutions satisfies the Board's obligations under the agreement. The Board also points out that Klein's letter of May 16, 2000, shows she was in agreement with an assignment to Stout Solutions just eight days after she signed the settlement agreement.

¶ 16. Neither party advises us whether we should use federal or state common law to interpret this Title VII settlement agreement. The United States Supreme Court has not addressed this question, hut it has examined the principles used to interpret a consent order, which it described as having attributes of both contracts and judicial decrees. United States v. ITT Continental Baking Co., 420 U.S. 223, 237 (1975). In so doing, it concluded that for enforcement purposes a consent decree or order should be construed as a contract, giving effect to the intent of the parties. See id. at 238. To aid construction, the Supreme Court employed federal common law, starting with whether the decree is ambiguous. See United States v. Atlantic Refining Co., 360 U.S. 19, 23 (1959). If the decree is ambiguous, then the Court considers aids that would be used in contract construction such as consideration of the circumstances surrounding the agreement's formation, any technical meaning the words may have had to the parties and any other documents expressly incorporated into the decree. ITT Continental, 420 U.S. at 238.

¶ 17. The factors used by the Supreme Court are consistent with what would be applied in interpretation of a contract under Wisconsin law. See, e.g., Waukesha Concrete Prods. Co. v. Capitol Indem. Corp., 127 Wis. 2d 332, 339, 379 N.W.2d 333, 336 (Ct. App. 1985) (concluding that the objective in contract construction is ascertaining the intent of the parties); Neenah Sanitary Dist. No. 2 v. City of Neenah, 2002 WI App 155, ¶ 9, 256 Wis. 2d 296, 647 N.W.2d 913 (concluding that contractual language is ambiguous when it is fairly susceptible of more than one construction); Estate of Grossman, 250 Wis. 457, 461, 27 N.W.2d 365, 367 (1947) (concluding that the intent of the parties may be determined by the circumstances surrounding the contract's formation); Farm Credit Servs. v. Wysocki, 2001 WI 51, ¶ 12, 243 Wis. 2d 305, 627 N.W.2d 444 (concluding that extrinsic evidence may be used in ascertaining the meaning of an ambiguous contract). Accordingly, we conclude that whether we can determine the intent of the parties from the record before us is not dependent upon whether we apply state or federal common law.

¶ 18. Our interpretation begins with deciding whether either the term "department" or the phrase "department.. . appropriate to her training, skills, and abilities" is ambiguous. Whether a contract provision is ambiguous is a question of law that we decide de novo. Neenah Sanitary, 256 Wis. 2d 296, ¶ 9. We conclude that if we focus on the full phrase "a department. . . appropriate to her training, skills, and abilities," the word "department" is ambiguous because it is modified by those conditions that come later in the phrase. Therefore, we consider extrinsic evidence to attempt to ascertain the intent of the parties. Farm Credit, 243 Wis. 2d 305, ¶ 12.

¶ 19. The extrinsic evidence in the record consists of several drafts of the agreement that appear to support the Board's position that Klein would not be assigned to the Department of Art and Design and that the department to which she would be assigned would be one that is appropriate to her training, skills and abilities. However, those same drafts are also supportive of Klein's position that she would be assigned to an academic department. We also note that the affidavit of the Provost of UW-Stout is his interpretation of the contract. Therefore, it may or may not he relevant to ascertaining the intent of the parties when the agreement was entered into. However, the letter from Klein, written only eight days after she signed the settlement agreement, that acknowledges her understanding that she would be assigned to Stout Solutions, at least initially, also supports the Board's interpretation.

¶ 20. Without knowing more about why the parties drafted the agreement as they did, we cannot determine, as a matter of law, the intent of the parties in regard to Klein's placement at UW-Stout. If we cannot determine what the parties intended Klein's placement to be, we cannot determine whether the settlement agreement has been breached. Therefore, we reverse the summary judgment granted by the circuit court and we remand for further proceedings.

CONCLUSION

¶ 21. Because we conclude that sovereign immunity does not bar Klein's action, but that there are material issues of fact about whether the Board of Regents breached the settlement agreement, we affirm in part; reverse in part and remand for further proceedings consistent with this opinion.

By the Court. — Judgment and order affirmed in part; reversed in part and cause remanded.

       1nitially, the University of Wisconsin-Stout was a named party. It was dismissed as part of the circuit court's judgment and that dismissal was not appealed. Therefore, the only defendant is the Board of Regents of the University of Wisconsin System.

       From the record, we cannot tell whether the settlement agreement was a conciliation agreement reached after an EEOC finding of probable cause, see EEOC v. Liberty Trucking Company, 695 F.2d 1038 (7th Cir. 1982), or whether it was a pre-determination agreement reached before an EEOC finding. See Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir. 1997).

       Wis. AdmiN. Code § UWS 1.03 states:
      Department. "Department" means a group of faculty members recognized by the faculty and chancellor of the institution, and the board of regents, as dealing with a common field of knowledge or as having a common or closely related disciplinary or interdisciplinary interest.

       We note that when making this determination, federal courts have interpreted § 706(f)(3) of Title VII, 42 U.S.C. § 2000e-5(f)(3), as a jurisdictional question because as courts of limited jurisdiction, in order to have jurisdiction based on a federal question, an action on a settlement agreement must have been "brought under" Title VII. See Liberty Trucking, 695 F.2d at 1040, 1044. Section 706(f)(3) provides in relevant part: "Each United States district court... shall have jurisdiction of actions brought under this subchapter." Although Wisconsin courts are courts of general jurisdiction, we must nevertheless determine whether Klein's action on the settlement agreement was a claim "brought under" Title VII because the answer to that question also decides whether the Board's assertion of sovereign immunity will hold.

        Liberty Trucking, 695 F.2d at 1041.

       Some federal circuit courts have concluded that federal, not state, law controls the interpretation of a settlement agreement in a Title VII case. See Liberty Trucking, 695 F.2d at 1043 (where the EEOC was a party to the agreement); Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir. 1981). While other federal circuit courts have concluded that state contract law should be employed. See Resnick v. Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir. 2000) (federal agency was not a party to the agreement); Hayes v. National Serv. Indus., 196 F.3d 1252, 1253 (11th Cir. 1999).

       Consent decrees must be approved by the court or administrative agency where the claim has been made. United States v. ITT Continental Baking Co., 420 U.S. 223, 237 (1975). Pre-determination and conciliation agreements do not require court or agency approval, although they may have it. See Eatmon v. Bristol Steel & Iron Works, Inc., 769 F.2d 1503 (11th Cir. 1985); cf. Liberty Trucking, 695 F.2d at 1040.


author: CURLEY, J.

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

      No. 02-2195-CR.

      Submitted on briefs April 1, 2003.

    — Decided May 20, 2003.

    2003 WI App 121
    (Also reported in 666 N.W.2d 112.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Rodney L. Cubbie of Cubbie & Pepper, Ltd., of Milwaukee.

      On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
    Before Wedemeyer, EJ., Fine and Curley, JJ.
   CURLEY, J.

¶ 1. Timothy T. Clark appeals from the judgment of conviction entered after he pled guilty to one count of possession of cocaine with intent to deliver, contrary to Wis. Stat. § 961.41(lm)(cm)5 (2001-02). Clark contends that the circuit court erred in denying his suppression motion because the vehicle he was driving was searched in violation of his constitutional protection against unreasonable searches and seizures. Because towing the vehicle under the circumstances presented here was not a proper exercise of the police department's community caretaker function, we conclude that the subsequent inventory search constituted a violation of Clark's rights under the Fourth Amendment to the United States Constitution and article 1, section 11, of the Wisconsin Constitution. See U.S. Const, amend. IV; Wis. Const, art. 1, § 11. Accordingly, we reverse the circuit court's decision denying Clark's suppression motion and remand the matter to the circuit court.

I. Background.

¶ 2. On September 26, 2001, at approximately 5:00 p.m., Milwaukee police officers responded to a report of shots fired and a possible attempted robbery in the 400 block of North 39th Street. At the scene, Detective Richard McKee interviewed an individual named Eugene Stadler, who told Detective McKee that he had observed the incident.

¶ 3. Stadler stated that earlier in the day, "his cousin Tim" had come to visit him at his house located at 430 North 39th Street. Stadler did not know Clark's address or telephone number. Stadler stated that Clark was driving a gray Ford Taurus station wagon when he arrived at his house. He also informed Detective McKee that as Clark left the residence, he was approached by a man holding a handgun, who ordered him to "drop it." Stadler said that Clark then fled on foot and ran into a gangway. As Clark ran away, the man fired a number of shots in his direction.

¶ 4. The police found a spent shell casing in the street within ten yards of a parked gray Ford Taurus automobile. They also discovered another spent shell casing in a gangway approximately seventy-five yards from the vehicle. When Detective McKee checked the Taurus's registration, he discovered that it was jointly registered to Pamela Johnson and Christine VanMun who resided in the 9000 block of North 95th Street. Although the detective observed that the Taurus was undamaged and legally parked, because the vehicle was unlocked, Detective McKee decided to have it towed to the police department's impound lot for safekeeping. Before the car was towed, the detective conducted a search and discovered a backpack containing a pair of jeans and cocaine.

¶ 5. On September 28, 2001, Clark was charged with possession of a controlled substance with intent to deliver. On November 12, 2001, Clark filed a suppression motion challenging the search of the vehicle. When asked at the suppression hearing why he decided to tow the vehicle, Detective McKee testified:

I had an unsecured vehicle there, and no idea who was - the owner/operator was, or how to get ahold [sic] of them other than the listing. But Mr. Sadler said that [it] was Tim's car. In my experience, vehicles are so frequently changing hands without the registration being changed over that the most prudent decision would be to tow it for safekeeping.

¶ 6. While testifying, the detective was referred to the Milwaukee Police Department's "safekeeping tow" policy, which states in relevant part:

TOWING VEHICLES
SI610.20 VEHICLE TOW CATEGORIES AND TOWING PROCEEDURES
B. SAFEKEEPING TOW
This tow category is to be used only when:
1. A vehicle is to be towed and the owner/driver is unable to authorize a tow.
2. Ownership is in question.
3. The vehicle appears as "possibly stolen[,"] e.g., column damage, but not yet reported.

After reviewing the policy, Detective McKee concluded that Clark's vehicle was towed pursuant to subsection one of the policy.

¶ 7. When asked at the suppression hearing why he did not simply lock the vehicle and leave it legally parked on the street, Detective McKee responded: "Because our Department policy doesn't provide for that. We were only permitted to lock the vehicle and leave it legally parked when we had the permission and consent of the owner." However, on cross-examination, Detective McKee conceded that there was no written Milwaukee Police Department policy supporting his conclusion that he could not simply lock the vehicle and walk away:

[Defense CouNSel]: Detective, you mentioned that it's against policy to leave a vehicle locked and legally parked without the permission of the owner; is that true?
[Deteotive McKee]: Well, it would be against policy to lock it and then leave it legally parked.
[Defense Counsel]: Can you cite us to the policy that states that?
[Detective McKee] : That's been my training, any time there's an unsecured vehicle that we are unable to locate the owner or operator of, then our policy is we're to tow it.
[Defense Counsel]: So you are telling me that this is something that you received in training, but you can't cite [ ] a written policy that cites that?
[Detective MoKee]: Not off the top of my head, no. I don't believe - I don't believe one exists.
[Defense Counsel]: All right. So let me ask this, are you [stating] that any patrol officer with the City of Milwaukee who observes a car legally parked, but unlocked, is required to have that vehicle towed?
[Detective McKee]: No.

¶ 8. Before ordering the vehicle towed, Detective McKee never attempted to contact the registered owners of the Taurus. At the suppression hearing, the detective stated that he did not attempt to call them because he was "not equipped with a cell phone out there on the street" and "was not able to make such a call." Detective McKee, however, admitted that he did not even attempt to radio the police department to ask someone there to contact the registered owners of the vehicle.

¶ 9. On December 6, 2001, the circuit court denied Clark's suppression motion. On February 4, 2002, Clark entered a guilty plea, and on April 3, 2002, he was sentenced to ten years of initial confinement followed by seven years of extended supervision.

II. Analysis.

¶ 10. "On review of a trial court's denial of a motion to suppress, we will uphold the trial court's findings of fact unless they, are clearly erroneous." State v. Garrett, 2001 WI App 240, ¶ 7, 248 Wis. 2d 61, 635 N.W.2d 615 (citing Wis. Stat. § 805.17(2) (1999-2000) and State v. Williamson, 113 Wis. 2d 389, 401, 335 N.W.2d 814 (1983)). "Whether a search is valid, however, is a question of constitutional law which we review de novo." Id. (citing State v. Guzman, 166 Wis. 2d 577, 586, 480 N.W.2d 446 (1992)).

¶ 11. Here, the State contends that the search of the vehicle was a valid inventory search. "Although an inventory search is a 'search' within the meaning of the [F]ourth [A]mendment, it is also a well-defined exception to the warrant requirement." State v. Weber, 163 Wis. 2d 116, 132, 471 N.W.2d 187 (1991) (citations omitted). An analysis of an inventory search involves a two-step process: (1) analysis of the reasonableness of the seizure of the car in the first instance; and (2) analysis of the reasonableness of the inventory search. See id. at 133. Clark challenges the first step and argues that the police had no right to tow the vehicle.

¶ 12. The State makes much of the written "safekeeping tow" policy, as well as the unwritten "unsecured vehicle" policy. The State cites Thompson v. State, 83 Wis. 2d 134, 265 N.W.2d 467 (1978), for the proposition that the seizure of the car was reasonable and permissible. The Thompson court stated: "The United States Supreme Court has held that inventory searches pursuant to 'Standard police procedures' are reasonable and permissible." Id. at 139-40; see also South Dakota v. Opperman, 428 U.S. 364, 373 ("In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents."). The State, however, has applied the reasoning of Thompson to the wrong step of the inventory search analysis - both Thompson and Opperman deal with the reasonableness of the inventory search; i.e., was the decision to conduct an inventory search made pursuant to standard police operating procedures? See Thompson, 83 Wis. 2d at 140-41 (determining that the inventory search was not reasonable or justified as an inventory search because "the 'inventory' involved here was not a disinterested cataloging of the car's contents[, and t]he motivation... was to discover evidence."); Opperman, 428 U.S. at 372 (stating "inventories pursuant to standard police procedures are reasonableD"). These cases, however, do not deal with the reasonableness of the seizure of the vehicle in the first instance; i.e., was the decision to impound and tow the vehicle reasonable?

¶ 13. Moreover, the Opperman court explicitly stated that each search must be independently evaluated applying the Fourth Amendment standard of reasonableness:

"But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment."
"[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only 'unreasonable searches and seizures.' The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts."

Id. at 372-73 (citations omitted) (emphasis and alterations in original).

¶ 14. Thus, with respect to the Milwaukee Police Department's policies, first and foremost, we conclude that compliance with an internal police department policy does not, in and of itself, guarantee the reasonableness of a search or seizure. Rather, the constitutionality of each search or seizure will, generally, depend upon its own individual facts. See State v. Guy, 172 Wis. 2d 86, 100, 492 N.W.2d 311 (1992) (stating that the court would "not place a constitutional imprimatur on the Milwaukee Police Department's policy of automatically frisking everyone present for weapons while executing a search warrant for drugs in a private residence [,]" but rather, that the "constitutionality of each such frisk [would] continue to depend upon its [unique] facts.").

¶ 15. Second, the first subsection of the "safekeeping tow" policy provides no guidance as to why or when an automobile may be towed for safekeeping. The policy states: "This tow category is to be used only when . . . [a] vehicle is to be towed and the owner/driver is unable to authorize a tow." Basically, this states that "a vehicle is to be towed for safekeeping when a vehicle is to be towed." Because this subsection offers no insight into why or when a vehicle may be seized - only that if it has already been determined that a vehicle is to be towed, the officer may do so for safekeeping even if the owner is unable to consent - the policy relied upon by Detective McKee is wholly unhelpful here.

¶ 16. Third, the unwritten "unsecured vehicle" policy, as explained by Detective McKee, is overly broad. Detective McKee testified that according to this policy, "[the police] were only permitted to lock the vehicle and leave it legally parked when [they] had the permission or consent of the owner," but that otherwise, "any time there's an unsecured vehicle that [the police] are unable to locate the owner or operator of, then [their] policy is ... to tow it." As pointed out by defense counsel, this policy might lead to the police towing every unlocked vehicle on the street for "safekeeping."

¶ 17. Fourth, even assuming the reasonableness of both policies, before a tow is mandated, each policy requires an attempt to locate the vehicle's owner and seek consent to either tow or lock and leave the vehicle. In the instant case, Detective McKee failed to attempt to contact the owners of the vehicle and obtain consent. Therefore, he failed to comply with the Milwaukee Police Department's policies, written and unwritten.

¶ 18. Accordingly, we must only determine, absent any police department policies, whether the seizure satisfied the reasonableness standard of the Fourth Amendment to the United States Constitution and article 1, section 11, of the Wisconsin Constitution. See State v. Wodenjak, 2001 WI App 216, ¶ 5, 247 Wis. 2d 554, 634 N.W.2d 867. The Fourth Amendment to the United States Constitution and article 1, section 11, of the Wisconsin Constitution both protect against unreasonable searches and seizures. Each states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const, amend. IV; Wis. Const, art. 1, § 11. Therefore, searches and seizures of homes conducted without a warrant are presumptively unreasonable. See State v. Tomlinson, 2002 WI 91, ¶ 20, 254 Wis. 2d 502, 648 N.W.2d 367.

¶ 19. While warrantless searches of homes are presumptively unreasonable, warrantless searches of vehicles are not. See State v. Marquardt, 2001 WI App 219, ¶ 26, 247 Wis. 2d 765, 635 N.W.2d 188.

During the last seventy-five years, the United States Supreme Court has recognized that the unique nature of automobiles sets them apart from other areas protected from warrantless searches under the Fourth Amendment. This exception to the general rule requiring a warrant for searches and seizures is known as the automobile exception.
Our first cases establishing the automobile exception to the Fourth Amendment's warrant requirement were based on the automobile's "ready mobility," an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear .... More recent cases provide a further justification: the individual's reduced expectation of privacy in an automobile, owing to its.pervasive regulation .... If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.
Thus, under current federal law, the warrantless search of a vehicle, does not offend the Fourth Amendment if (1) there is probable cause to search the vehicle; and (2) the vehicle is readily mobile.

Id., ¶¶ 26-31 (citations omitted). In the instant case, because Detective McKee lacked probable cause to search the vehicle, the automobile exception does not apply.

¶ 20. Another exception to these requirements arises when the State can demonstrate that the seizure was made in the course of a "community caretaker function." See State v. Kelsey C.R., 2001 WI 54, ¶ 34, 243 Wis. 2d 422, 626 N.W.2d 777; see also State v. Ellenbecker, 159 Wis. 2d 91, 96, 464 N.W.2d 427 (Ct. App. 1990) (stating that a "community caretaker action is not an investigative .. . stop and thus does not have to be based [upon] a reasonable suspicion of criminal activity.")- The State argues that the vehicle Clark was driving was towed for "safekeeping." Therefore, we must determine whether seizure of the vehicle for safekeeping was a reasonable exercise of the community caretaker function. See Kelsey C.R., 243 Wis. 2d 422, ¶ 34.

In the interests of public safety and as part of what the Court has called "community caretaking functions," automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in care-taking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

Opperman, 428 U.S. at 368-69 (citations and footnote omitted).

¶ 21. A three-step test is used to evaluate the reasonableness of such a seizure:' "(1) that a seizure within the meaning of the [F]ourth [AJmendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual." State v. Anderson, 142 Wis. 2d 162, 169, 417 N.W.2d 411 (Ct. App. 1987). With respect to the second step, a bona fide community caretaker activity is one that is "divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Dull, 211 Wis. 2d 652, 658, 565 N.W.2d 575 (Ct. App. 1997) (citations omitted). The third step requires us to consider four additional factors:

(1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.

Anderson, 142 Wis. 2d at 169-70 (footnotes omitted). "Overriding this entire process is the fundamental consideration that any warrantless intrusion must be as limited as is reasonably possible, consistent with the purpose justifying it in the first instance." Id. at 169.

¶ 22. In the instant case, none of the typical public safety concerns illustrated by Opperman are at issue. The vehicle in question was not: (1) involved in an accident; (2) interrupting the flow of traffic; (3) disabled or damaged; (4) violating parking ordinances; or (5) in any way jeopardizing the public safety or the efficient movement of vehicular traffic. See Opperman, 428 U.S. at 368-69. The gray Ford Taurus was legally parked and undamaged. Thus, it posed no apparent public safety concern.

¶ 23. Detective McKee testified, however, that the vehicle was not towed for the public's safety, but rather, to ensure that the vehicle itself and any property inside the vehicle would not be stolen. While this appears to be a bona fide community caretaker activity, a number of effective alternatives were available.

¶ 24. The State argues that we are not allowed to examine whether more reasonable techniques were available. Again, the State mischaracterizes the law. In State v. Sokolow, 490 U.S. 1, 11 (1989), the Supreme Court stated: "The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions . . . ." However, Sokolow and its progeny apply to Terry stops. See id. at 7-8; see also Terry v. Ohio, 392 U.S. 1 (1968).

¶ 25. The seizure in question concerns the community caretaker function. In Anderson, we clearly established that in considering whether the public need and interest outweigh the intrusion upon the privacy of the individual, a court may consider "the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished." Anderson, 142 Wis. 2d at 170. Thus, under the third step of the reasonableness test, we must compare the availability and effectiveness of alternatives with the type of intrusion actually accomplished.

¶ 26. Here, Clark offers a number of reasonable alternatives to towing and impounding a vehicle that is left unlocked when ownership may be in question. A reasonable police officer presented with a similar situation, being primarily concerned with the safety of a vehicle and its contents, could simply lock the vehicle and walk away. This alternative is the least burdensome on the police department, as well as the least intrusive on the individual. Alternatively, if an officer is convinced that a vehicle needs to be towed for safekeeping, either because the vehicle cannot be locked or because the officer reasonably believes that the vehicle could be stolen or vandalized, he or she should at least attempt to contact the owner and obtain consent.

¶ 27. Because Detective McKee neither: (1) locked the vehicle and walked away; nor (2) attempted to contact the owners of the vehicle in light of his belief that the vehicle or its contents may be stolen, we conclude that, absent these safeguards, the public need in towing the unlocked vehicle did not outweigh the intrusion upon Clark's privacy. Furthermore, although an automobile was involved and individuals generally have a lesser expectation of privacy in an automobile, see Anderson, 142 Wis. 2d at 169 n.4, we conclude that Clark's reasonable expectation of privacy included the expectation that he could leave his vehicle parked legally on the street, albeit unlocked, without it being towed. Accordingly, the circuit court erroneously denied Clark's suppression motion.

¶ 28. Based upon the forgoing, the circuit court is reversed and the cause remanded.

By the Court. — Judgment reversed and cause remanded.

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

       The parties refer to this witness as both Eugene Stadlter and Eugene Stadler. To maintain consistency, we will refer to the witness as Eugene Stadler.

       "Tim" was later identified as Timothy T. Clark. At the time of the incident, Stadler knew Clark only by his first name.

       This alternative directly corresponds to the Milwaukee Police Department's own "safekeeping tow" policy.


author: HOOVER, PJ.

text:
    Martin Mellenthin and Heidi Mellenthin, Plaintiffs-Respondents, v. Rodney Berger, Durand Rural Fire Department and Continental Western Insurance Company, Defendants-Appellants.
    Court of Appeals

      No. 02-2524.

      Oral argument April 7, 2003.

    — Decided May 20, 2003.

    2003 WI App 126
    (Also reported in 666 N.W.2d 120.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Francis M. Doherty and Michael W. Gill and Hale, Skemp, Hanson, Skemp & Sleik of La Crosse. Oral argument by Francis M. Doherty.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Charles B. Harris and Martha H. Heidt and Doar, Drill & Skow, S.C., of Baldwin. Oral argument by Martha H. Heidt.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   HOOVER, PJ.

¶ 1. Rodney Berger, Durand Rural Fire Department, and Durand Rural's insurer Continental Western Insurance Company appeal a nonfinal order determining that Durand Rural is not entitled to any form of immunity under Wis. Stat. § 893.80(4). We conclude that the trial court erred in its analysis of Durand Rural's classification. We therefore reverse the order and remand so the trial court may enter an order consistent with this opinion.

Background

¶ 2. The facts are undisputed. Pursuant to their duty to provide fire protection under Wis. Stat. § 60.55(l)(a), ten Pepin County towns created the Du-rand Rural Fire Department, incorporating under Wis. Stat. ch. 181. Rodney Berger is the coordinator of Durand Rural as well as a firefighter.

¶ 3. Martin and Heidi Mellenthin live in Eau Galle, one of Durand Rural's founding towns. On August 28, 1999, the Mellenthins contacted the Pepin County Police Department about a fire on their property. The police relayed the call to Berger, who called the Mellenthins. While Berger offered to dispatch the fire truck, the Mellenthins asked Berger to come inspect the property first. Berger went to the property and determined that there was a fire inside one of the Mellen-thins' silos containing two-year-old feed. Because the Mellenthins' insurance company would cover the loss of the feed, and concluding that it would be too dangerous for his firefighters to attempt to extinguish the fire, Berger determined the best course of action would be to allow the fire to burn itself out.

¶ 4. Unfortunately, the fire spread to the Mellen-thins' barn. They called Durand Rural again on August 30, and when Berger arrived on the scene he discovered that the barn was already fully engulfed in flames and collapsing.

¶ 5. The Mellenthins sued Berger, Durand Rural and Durand Rural's insurer seeking damages based on Berger's and Durand Rural's alleged negligence in failing to extinguish the silo fire. Berger and Durand Rural moved for summary judgment, claiming governmental immunity under Wis. Stat. § 893.80(4) as a "political corporation." The Mellenthins disputed the immunity claim, arguing that because Durand Rural was incorporated under Wis. Stat. ch. 181, it was a private, non-stock, nonprofit organization not entitled to immunity under § 893.80(4).

¶ 6. The Mellenthins also opposed the summary judgment motion, arguing that even if Durand Rural is entitled to immunity, questions of fact remain regarding the "private nuisance" and "compelling and known danger" exceptions to immunity. The trial court ruled that Durand Rural was not entitled to immunity because it was not incorporated under Wis. Stat. ch. 213 and denied the motion for summary judgment on the immunity issue. Durand Rural sought leave to appeal that nonfinal order, and we allowed the appeal. We conclude that Durand Rural is entitled to immunity. We further conclude that neither exception to immunity applies. Accordingly, we reverse the order.

Standard of Review

¶ 7. We review a motion for summary judgment using the same well-known methodology the circuit court employs. See Policemen's Annuity & Benefit Fund v. City of Milwaukee, 2001 WI App 144, ¶ 9, 246 Wis. 2d 200, 630 N.W.2d 236; Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Whether Durand Rural is entitled to governmental immunity involves questions of statutory interpretation we review de novo. See Morris v. Juneau County, 219 Wis. 2d 543, 550, 579 N.W.2d 690 (1998).

Discussion

¶ 8. Wisconsin Stat. § 60.55(l)(a) requires towns to provide fire protection, stating:

The town board shall provide for fire protection for the town. Fire protection for the town, or any portion of the town, may be provided in any manner, including:
1. Establishing a town fire department.
2. Joining with another town, village or city to establish a joint fire department....
3. Contracting with any person.
4. Utilizing a fire company organized under ch. 213.

¶ 9. Wisconsin Stat. § 213.05, the applicable statute for the fourth option, allows "Any number of persons, not less than 15, not residing in any city or village [to] organize a fire company as a nonstock corporation under ch. 181 for the protection of life and property." In this case, § 213.05 was inapplicable, and the towns instead incorporated their department directly under Wis. Stat. ch. 181 as a nonstock corporation.

¶ 10. The governmental immunity statute in this case, Wis. Stat. § 893.80(4), states:

No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employees nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employees for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

Believing its duty was to strictly construe the statute, the trial court determined, "if this is not a Chapter 213 fire company . . . then there is not immunity."

¶ 11. An attorney general's opinion contributes to part of the dispute in this case. While dealing with questions from the Department of Industry, Labor, and Human Relations, the attorney general opined, without supporting analysis, that "A fire department organized under chapters 213 and 181 is a private entity, despite its evident public purpose." 80 Op. Att'y Gen. 67 (1991). The attorney general also concluded: "The classification of a fire department depends on the enabling statute under which it was organized." Id. The Mellen-thins cite this opinion in support of their contention that Durand Rural, because it was incorporated under Wis. Stat. ch. 181, is a private entity and therefore not entitled to immunity.

¶ 12. We agree with that part of the attorney general's opinion stating that the appropriate inquiry for determining the nature or classification of a fire department is the enabling statute. However, we disagree with the Mellenthins that the enabling statute in this case was Wxs. Stat. ch. 181.

¶ 13. As the attorney general noted:

[T]he town board [is given] broad authority to provide for and fund fire protection. Flexibility in providing fire protection is necessary because of the widely varying circumstances of towns — circumstances that affect the level of fire protection needed or desired, such as population, geography, area, proximity to urban centers and commercial and industrial development.

80 Op. Att'y Gen., supra, at 63 (quoting 1983 Wis. Act 532, at 2158). Because the legislature has mandated that towns provide fire protection, we conclude Wis. Stat. § 60.55(l)(a) is the enabling statute we should use in classifying the department for immunity purposes in this case. Since the statute allows towns to create a fire department "in any manner," the use of Wis. Stat. chs. 181 or 213 to establish a fire department ultimately becomes irrelevant to our inquiry. The question is whether a ch. 60 fire department is entitled to immunity. We conclude that it is.

¶ 14. In Selzler v. Dresser Fire Dept., 141 Wis. 2d 465, 415 N.W.2d 546 (Ct. App. 1987), we rejected a contention that the legislature intended disparate treatment of Wis. Stat. chs. 60 and 213 departments. We apply the same reasoning here. Selzler contemplated the differences between a Wis. Stat. ch. 60 department and a Wis. Stat. ch. 213 department in the context of Wis. Stat. § 893.80(3). Section 893.80(3) imposes liability limits: $50,000 for a political corporation, government subdivision or agency thereof, and $25,000 for a ch. 213 department. In Selzler, the fire department had been founded by three towns, and the question was whether the liability limit was $50,000 as one governmental unit or $150,000 — $50,000 for each member town. Id. at 469.

¶ 15. Observing that the legislature allows fire departments to form under both Wis. Stat. chs. 60 and 213, we concluded that the legislature would not have "created the authority to organize under one of two chapters, one of which limits liability to $25,000, and the other which imposes liability limits based on the number of municipalities creating the agency." Id. at 473. We concluded that the "legislative purpose of limiting liability of governmental units and their agencies cannot be achieved if sec. 893.80(3) established various liability limits for agencies created by multiple governmental subdivisions." Id. at 472. As such, we rejected "a legislative scheme creating grossly disparate treatment" between ch. 60 and ch. 213 departments. Id. at 473. For the same reason, we reject the notion that a ch. 213 department can receive an immunity, but a chapter 60 department, regardless how it is formed, will not. As we explain below, any ch. 60 department may be considered a government subdivision or agency and, as such, is entitled to immunity under the appropriate language of Wis. Stat. § 893.80(4).

¶ 16. If the statute did not immunize departments formed pursuant to Wis. Stat. ch. 60, we would face potentially "grossly disparate" results. For example, we could assume ch. 60 is irrelevant to an immunity determination. Because ch. 60 authorizes towns to provide fire protection "in any manner," § 60.55(l)(a), a town could utilize a Wis. Stat. ch. 213 department or it could, as here, incorporate a fire department under Wis. Stat. ch. 181. If we were to accept the Mellenthins' argument that a ch. 181 department is not entitled to immunity because it is a private entity, we are faced with a situation where one town's department is immunized specifically because it is a ch. 213 department, but another town's department would not be entitled to immunity. We believe it would be "grossly disparate" treatment for one town's legislatively mandated fire department to receive immunity and another town's to be exposed to liability.

¶ 17. In short, we conclude that the legislature would not allow volunteer departments under Wis. Stat. ch. 213 to be immune from suit while simultaneously exposing mandatory, town-created departments to liability. Such a situation is counterintuitive considering the purpose of "limiting liability of governmental units." The only logical reconciliation is that a fire department organized under Wis. Stat. ch. 60 is a governmental subdivision or agency entitled to the immunity conferred by Wis. Stat. § 893.80(4).

¶ 18. Durand Rural's articles of incorporation state: "The purpose for which this corporation is organized is to establish and operate a joint fire department for the member Towns ...." It is evident that Durand Rural exists specifically in response to the legislatively imposed duty of Wis. Stat. § 60.55(l)(a). See Cohn v. Town of Randall, 2001 WI App 176, ¶ 5, 247 Wis. 2d 118, 633 N.W.2d 674 (interpretation of a document is a question of law). Thus, Durand Rural is a subdivision or agency of its founding towns and is entitled to immunity. Because we have determined that governmental immunity applies, we now turn to the Mellenthins' "compelling and known danger" and "private nuisance" arguments, two exceptions to the immunity doctrine.

Compelling and Known Danger

¶ 19. In contemplating whether Berger and Du-rand Rural were facing a "compelling and known danger," we examine the scope of the common law doctrine of public officer immunity. This is a question of law reviewed de novo. Kimps v. Hill, 200 Wis. 2d 1, 8, 546 N.W.2d 151 (1996).

¶ 20. Under the general rule in Wisconsin, public officers and employees are immune from personal liability for injuries or damages resulting from acts performed within the scope of official duties. See id. at 10. The existence of a compelling and known danger, however, warrants a special exception to this general rule of public employee immunity. See id. at 15; Cords v. Anderson, 80 Wis. 2d 525, 542, 259 N.W.2d 672 (1977). This is because the danger may present a "duty so clear and absolute that it falls within the definition of a ministerial duty." Kimps, 200 Wis. 2d at 15 (quoting Cords, 80 Wis. 2d at 542).

¶ 21. "A public officer's duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." Lister v. Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976). Or, as clarified in C.L. v. Olson, 143 Wis. 2d 701, 715, 422 N.W.2d 614 (1988), a public officer's duty is ministerial only where "the nature of the danger is compelling and known to the officer and is of such force that the public officer has no discretion not to act."

¶ 22. As the Mellenthins point out, "[f]ire, by its nature, creates an emergency." Rockwood Vol. Fire Dept. v. Town of Kossuth, 260 Wis. 331, 333, 50 N.W.2d 913 (1952). They argue that Berger and Durand Rural had the "ministerial duty... to at least monitor the situation to assure that the fire remained under control within the silo." We disagree that there was a ministerial duty.

¶ 23. While the legislature requires towns to provide fire protection, the legislature has not prescribed the "time, mode and occasion for [fire protection's] performance" with any certainty, much less with "certainty [so precise] that nothing remains for judgment or discretion." See Lister, 72 Wis. 2d at 301. Indeed, the court in Rockwood noted, "It would be ridiculous to say that only a proper legislative or governing body may exercise the discretion necessary to determine whether the services of a fire department are required in a given circumstance." Rockwood, 260 Wis. at 333.

¶ 24. We also reject any notion that the fire was so dangerous that Berger and Durand Rural were left with "no discretion not to act." See C.L., 143 Wis. 2d at 715. The Mellenthins' own actions belie such an assertion. After the police reported the fire to Berger, he called the Mellenthins and offered to send a fire truck to their property. The Mellenthins instead asked Berger to inspect the property first. Thus the Mellenthins also suspected the fire would burn itself out in the silo without the need for Durand Rural to extinguish it. While we sympathize with the Mellenthins' property loss, "A party cannot work backwards from a consequence to create a duty that is 'absolute, certain and imperative.'" Kimps, 200 Wis. 2d at 12. The doctrine of "compelling and known danger" does not apply to strip Berger or Durand Rural of immunity.

Private Nuisance

¶ 25. The Mellenthins contend that Berger and Durand Rural, by failing to extinguish the fire, "maintained or permitted a private nuisance" and that no statutory or common law immunity doctrine empowers a public body to create or maintain a private nuisance. Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 441, 400 N.W.2d 493 (Ct. App. 1986). While the Mellenthins correctly summarize Hillcrest, their argument presupposes the silo fire was a nuisance. We conclude as a matter of law that it was not.

¶ 26. The legal basis for a nuisance claim presents a question of law that we resolve without deference to the trial court. Stunkel v. Price Elec. Co-op., 229 Wis. 2d 664, 668, 599 N.W.2d 919 (Ct. App. 1999). A nuisance is a "material and unreasonable impairment of the right or enjoyment of the individual's right to the reasonable use of his or her property or the impairment of its value." Anhalt v. Cities & Villages Mut. Ins. Co., 2001 WI App 271, ¶ 18, 249 Wis. 2d 62, 637 N.W.2d 422. It is also defined as an "invasion" interfering with the use and enjoyment of property rights and privileges. See Stunkel, 229 Wis. 2d at 668-69.

¶ 27. The private nuisance doctrine is traditionally employed in Wisconsin to balance the conflicting rights of landowners because we recognize that landowners do not have an absolute or unlimited right to use their land in a way that injures the rights of others. Prah v. Maretti, 108 Wis. 2d 223, 230-31, 321 N.W.2d 182 (1982). The use of the doctrine is evident in the cases the Mellenthins cite in support of their claim. In each case, the governmental body owned property but was utilizing the property in such a way that the government created a nuisance that interfered with or "invaded" the rights of neighboring landowners.

¶ 28. However, there is no such invasion here. Berger and Durand Rural did not start the fire, and the fire was not on governmental property or any other property neighboring the Mellenthins'. While the fire may have ultimately impaired the Mellenthins' reasonable use of their property or impaired its value, the nuisance doctrine is inapplicable given the facts of the case. We reverse and remand for an order consistent with this opinion.

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

       This court granted leave to appeal pursuant to Wis. Stat. § 809.50 on October 22, 2002. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       There is also a contract between the City of Durand and Durand Rural. While the Mellenthins portray it as a contract for fire protection services, its primary use is to govern an equipment sharing arrangement; the city does not provide actual fire protection services to the towns. Moreover, on its face it refers to the "Rural Fire Fighting Organization," not Durand Rural. In any event, the Mellenthins do not develop an argument around the contract, so we will not consider it. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

       The Mellenthins attempt to explain why towns fulfill the definition of "persons" such that Wis. Stat. § 213.05 could have been utilized to create Durand Rural. Assuming but not deciding that a town is a "person" as described in § 213.05, this statute still requires a minimum of fifteen persons to create a fire company. Since there were only ten towns in this case, § 213.05 would not apply in any event.

       We question whether the "public" or "private" nature should be dispositive of an immunity determination, given the government's ability to contract with private firms to provide public services. See, e.g., Lyons v. CNA Ins Cos., 207 Wis. 2d 446, 457, 558 N.W.2d 658 (Ct. App. 1996) (private parties contracting with municipal authorities to perform certain tasks may be entitled to immunity).

       We note that, as Durand Rural pointed out at oral argument, one reason the legislature specifically immunized Wis. Stat. ch. 213 departments is because they may indeed remain private and unaffiliated with a government such that they would never be considered an "agent" or "subdivision" of the governmental unit.

       When towns are required to create a department, we can conceive no other classification to apply. Whether towns create the department themselves or contract with a private entity to be the department, the department becomes either a subdivision of the towns or an agent of the towns.

       The trial court determined that Durand Rural was not entitled to statutory immhnity, so it never addressed whether these exceptions applied. However, both exceptions involve questions of law, and we do not need to rely on a trial court's determination of these issues. City of Muskego v. Godec, 167 Wis. 2d 536, 545, 482 N.W.2d 79 (1992). For completeness1 sake, we are compelled to address the immunity issue in its entirety.

       Actually, in the case of municipalities, liability is the rule and immunity is the exception. These doctrines are therefore exceptions to the exception. See Kimps v. Hill, 200 Wis. 2d 1, 10 n.6, 546 N.W.2d 151 (1996).